The New Zealand Micro-Creamery, Inc.

Trademark Trial and Appeal Board

Sep 11, 2003

No. 76397967 (T.T.A.B. Sep. 11, 2003)

Mailed: 9/11/03
Paper No. 9
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UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re The New Zealand MicroCreamery, Inc.
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Serial No. 76/397,967
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Stanley B. Kita of Howson and Howson for The New Zealand
MicroCreamery, Inc.
Steven Foster, Trademark Examining Attorney, Law Office 106
(Mary Sparrow, Managing Attorney).
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Before Seeherman, Walters and Drost, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
The New Zealand MicroCreamery, Inc., a Delaware
corporation, has appealed from the final refusal of the
Trademark Examining Attorney to register KIWI’S for
“restaurant services featuring non-alcoholic beverages and
dessert products.” The application, which was filed on
April 19, 2002, is based on an asserted bona fide intention
to use the mark in commerce.
THIS OPINION IS NOT
CITABLE
AS PRECEDENT OF
THE T.T.A.B.
Ser No. 76/397,967
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Registration has been refused pursuant to Section
2(e)(1) of the Trademark Act, 15 U.S.C. 1052(e)(1), on the
ground that applicant’s mark is merely descriptive of its
services. Specifically, the Examining Attorney asserts
that KIWI’S is a mere misspelling of “kiwis,” and this term
describes items available as part of applicant’s restaurant
services.
Both applicant and the Examining Attorney have filed
briefs. An oral hearing was not requested.
A mark is merely descriptive if it immediately conveys
information concerning a quality, characteristic, function,
ingredient, attribute or feature of a product or service.
It is sufficient if it describes a single, significant
quality, feature, function, etc. In re Venture Lending
Associates, 226 USPQ 285 (TTAB 1985).
Applicant has explained that kiwi fruit will not be a
significant ingredient in menu selections in its
restaurants. Although acknowledging that kiwi fruit may be
used as an ingredient, a topping or a flavoring, in the
same manner as any other fruit, “such availability will be
incidental.” Response filed October 14, 2002.
Based on applicant’s explanation of its services, we
cannot say that the Office has established that kiwi fruit
describes a significant feature of applicant’s services.
Ser No. 76/397,967
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In this respect, the situation resembles that in In re The
Registry Hotel Corporation, 216 USPQ 1104 (TTAB 1983), in
which LA CHAMPAGNE was found to be not merely descriptive
of restaurant services because it did not serve to inform
customers that champagne was served in that applicant’s
restaurants. And this situation differs from that in In re
Pencils, 9 USPQ2d 1410 (TTAB 1988) because kiwi fruit is
not a specific item that will be sold by applicant in its
restaurants, compared to the pencils that were a product
line of a stationery and office supply store.
More importantly, we do not believe that the mark
KIWI’S will be viewed by consumers as the equivalent of
“kiwi fruit.” KIWI’S, of course, is the possessive form of
the word “kiwi.” The reference to a fruit in a possessive
form is certainly an odd usage. However, the term “Kiwi”
also refers to “flightless, ratite birds of the genus
Apteryx, of New Zealand,” and to “a New Zealander.”1 The
latter meaning also appears in one of the NEXIS excerpts
submitted by the Examining Attorney, which mentions
“celebrating her first birthday with the famous Kiwi
dessert, Pavlova.” “Contra Costa Sun,” January 23, 2002.
1 These definitions, from the Random House Unabridged
Dictionary, 2d ed. © 1987, were made of record by the Examining
Attorney.
Ser No. 76/397,967
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Because either of the latter meanings make more sense for
the possessive form of KIWI’S, consumers are likely to
ascribe such meanings to applicant’s mark, rather than the
meaning of kiwi fruit. Further, although not part of
applicant’s trademark, we note that applicant’s corporate
name is The New Zealand MicroCreamery, Inc., and that its
corporate logo features a picture of a kiwi bird. This
gives further support to our view of the meaning of
applicant’s mark with respect to the identified services.
We agree with the Examining Attorney that one cannot
register a merely descriptive term simply by misspelling
it. However, in this case, consumers will not regard
KIWI’S as a mere misspelling of KIWIS; rather, the
possessive form of the term changes its meaning, so that it
will not be perceived as a reference to the fruit.
Finally, to the extent that there is any doubt on the
issue of whether applicant’s mark is merely descriptive of
its identified services, it is well established that such
doubt must be resolved in favor of applicant. See In re
The Gracious Lady Service, Inc., 175 USPQ 380 (TTAB 1972).
Decision: The refusal of registration is reversed.
Ser No. 76/397,967
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