Watered Up, LLC

Trademark Trial and Appeal Board

Dec 30, 2016

No. 86310513 (T.T.A.B. Dec. 30, 2016)

THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB

Mailed: December 30, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
________

In re Watered Up, LLC
________

Serial Nos. 86310513; 86310537; 86310550
_______

Kirk A. Cesari of Cesari & Reed
for Watered Up, LLC.

Meghan Reinhart, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_______

Before Quinn, Wellington, and Adlin,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:
Watered Up, LLC (“Applicant”) filed applications to register on the Principal
Register the mark AQUA CRISPS, in standard characters,1 and the forms shown
below:2

1 Application Serial No. 86310513, filed June 16, 2014 pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intention to use the mark in
commerce.
2 Application Serial Nos. 86310537 and 86310550, respectively, filed June 16, 2014 pursuant
to Section 1(b) of the Trademark Act, alleging a bona fide intention to use the mark in
commerce. Serial No. 86310537 includes the following description of the mark: “The mark
consists of the letter ‘a’ formed of various sized circles, multiple circles above the letter ‘a’
arranged to look like bubbles or droplets, and the wording aqua crisps. Color is not claimed
as a feature of the mark.” Serial No. 86310550 includes the following description of the mark:
Serial Nos. 86310513; 86310537; 86310550

2

All of the identifications of goods read “tapioca-based snack foods; tapioca chips” in
International Class 30.
In application Serial Nos. 86310513 and 86310550, the Examining Attorney
refused registration under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1), on the ground that the wording AQUA CRISPS is merely descriptive of
the goods. In application Serial No. 86310537, the Examining Attorney maintained
that the wording AQUA CRISPS is merely descriptive, refusing registration under
Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), due to Applicant’s failure to
comply with the requirement to disclaim the wording AQUA CRISPS apart from the
mark.
When the refusals to register were made final, Applicant appealed. Applicant and
the Examining Attorney filed briefs. The Board, on August 25, 2016, granted the
Examining Attorney’s request to consolidate the appeals because they involve
common issues of law and fact, and the evidentiary records are the same. Accordingly,
we consider the merits in this single opinion.

“The mark consists of the word aqua with the letters arranged to have a curve on an edge of
the word, and the word crisps. Color is not claimed as a feature of the mark.”
Serial Nos. 86310513; 86310537; 86310550

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A term is merely descriptive of goods within the meaning of Section 2(e)(1) if it
forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature,
function, purpose or use of the goods. In re Chamber of Commerce of the U.S., 675
F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). See also In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether a mark is merely descriptive is
determined in relation to the goods for which registration is sought and the context
in which the term is used. In re Abcor Development Corp., 588 F.2d 811, 200 USPQ
215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002). A term
need not immediately convey an idea of each and every specific feature of the goods
in order to be considered merely descriptive; it is enough if it describes one significant
attribute, function or property of them. See In re Gyulay, 3 USPQ2d at 1010; In re
H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re MBAssociates, 180 USPQ 338
(TTAB 1973). This requires consideration of the context in which the mark is used or
intended to be used in connection with those goods, and the possible significance that
the mark would have to the average purchaser of the goods in the relevant
marketplace. See In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219; In re
Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); In re
Abcor Dev. Corp., 200 USPQ at 218; In re Venture Lending Assocs., 226 USPQ 285
(TTAB 1985). The question is not whether someone presented only with the mark
could guess what the goods listed in the identification are. Rather, the question is
whether someone who knows what the goods are will understand the mark to convey
information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695
Serial Nos. 86310513; 86310537; 86310550

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F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012), quoting In re Tower Tech, Inc.,
64 USPQ2d 1314, 1316-1317 (TTAB 2002). See also In re Patent & Trademark
Services Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In re Home Builders Association
of Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990); In re American Greetings Corp.,
226 USPQ 365, 366 (TTAB 1985).
When two or more merely descriptive terms are combined, the determination of
whether the composite mark also has a merely descriptive significance turns on
whether the combination of terms evokes a non-descriptive commercial impression.
If each component retains its merely descriptive significance in relation to the goods,
the combination results in a composite that is itself merely descriptive. Duopross
Meditech Corp. v. Inviro Med. Devices, Ltd., 103 USPQ2d at 1758 (SNAP SIMPLY
SAFER merely descriptive for “medical devices, namely, cannulae; medical,
hypodermic, aspiration and injection needles; medical, hypodermic, aspiration and
injection syringes”); In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370,
1371 (Fed. Cir. 2004) (PATENTS.COM merely descriptive of computer software for
managing a database of records that could include patents, and for tracking the
status of the records by means of the Internet). See also In re Carlson, 91 USPQ2d
1198 (TTAB 2009) (URBANHOUZING merely descriptive of real estate brokerage,
real estate consultation and real estate listing services); In re Putman Publishing Co.,
39 USPQ2d 2021 (TTAB 1996) (FOOD & BEVERAGE ONLINE merely descriptive of
news and information services in the food processing industry). However, a mark
comprising a combination of merely descriptive components is registrable if the
Serial Nos. 86310513; 86310537; 86310550

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combination of terms creates a unitary mark with a non-descriptive meaning, or if
the composite has a bizarre or incongruous meaning as applied to the goods. See In
re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE
for “bakery products”); In re Shutts, 217 USPQ 363 (TTAB 1983) (SNO-RAKE for “a
snow removal hand tool having a handle with a snow-removing head at one end, the
head being of solid uninterrupted construction without prongs”). “If one must exercise
mature thought or follow a multi-stage reasoning process in order to determine what
characteristics the term identifies, the term is suggestive rather than merely
descriptive.” In re Tennis in the Round, Inc., 199 USPQ 496, 497 (TTAB 1978). See
also In re Shutts, 217 USPQ at 364-365; In re Universal Water Systems, Inc., 209
USPQ 165, 166 (TTAB 1980).
The word “aqua” is defined as “water; used mainly on the labels of food, medicine,
and toiletries to show how much water they contain.” (macmillandictionary.com –
“American English definition”). The term “crisp means, in relevant part, “a thin, hard,
and usually salty piece of food.” (merriam-webster.com). (Office actions, 10/2/14 and
4/24/15).
Applicant’s website describes the product:
OUR CRISPS
Aqua Crisps – All Natural Smoked Water Crisps
Aqua crisps are a new, original snack with your health in
mind. This crunchy chip has the look and texture of a pork
rind, but is completely vegetarian and gluten free. The
unique recipe uses mostly water, natural smoke flavor and
tapioca pearls.

Our goal is to sell the product to restaurants, hotels,
schools, institutions and bars: anywhere with a deep fryer.
Serial Nos. 86310513; 86310537; 86310550

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We have developed a new snack that will universally be
enjoyed. The dried product is nonperishable and takes less
than a minute to cook.
(Response, 4/2/15)

The goods are further described on the website as “vegan crisps using smoked water
and tapioca pearls.” (Office action, 11/23/15). Applicant’s Facebook page likewise
describes its product as “a vegan crisp using smoked water and tapioca pearls.” Id.
Applicant apparently filed an application to register a patent to cover the product.
The patent application includes the following “Summary” about Applicant’s “water-
based snack products”:
A water-based snack product and method of making the
same is disclosed. In one embodiment, a snack product may
be made from smoked water and tapioca. Flavoring may
also be added to the snack product. In an example, a
method of making a snack product may include smoking
water and combining the smoked water with tapioca to
produce a water-based snack product. In some instances,
the mixture is further processed to produce a snack product
having a crispy or crunchy, chip-like texture.
(Response, 4/2/15)

Also of record are excerpts from the U.S. Acceptable Identification of Goods and
Services Manual showing listings for different types of food “crisps” (e.g., “nut crisps,”
“potato crisps”). (Office action, 10/2/14). Similarly, the record includes competing
“state of the register” evidence to show how the Office has viewed the term CRISPS
in prior registrations.3

3 The Examining Attorney introduced several third-party Principal Register registrations for
marks that include the word “CRISPS” as a portion thereof, all covering food items. In each
registration, there is a disclaimer of “CRISPS” apart from the mark. (See, e.g., SKINNY
CRISPS (Reg. No. 3543290); FIT CRISPS (Reg. No. 4046462)). Other similarly constructed
marks issued on the Supplemental Register. (See, e.g., KALE CRISPS (Reg. No. 3690859)).
(Office action, 10/2/14). To counter this evidence, Applicant submitted evidence of similarly
Serial Nos. 86310513; 86310537; 86310550

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Finally, we note that the Examining Attorney also submitted three prior
applications (Serial Nos. 85607228; 85607239; 85607245) filed by Applicant, but later
abandoned, to register the same AQUA CRISPS marks as those involved in this
appeal, for goods identified as “smoked water-based snack foods, namely, crisps in
the nature of tapioca-based crisps.” (Office action, 11/23/15). Although the goods are
now identified as “tapioca-based snack foods; tapioca chips,” the simple fact remains,
as confirmed by the evidentiary record, that the goods are just as accurately described
as “water-based,” as was done in the prior applications. So as to be clear, however, we
reiterate that we must decide the issue of mere descriptiveness based on the present
identification of goods. See Octocom Systems, Inc. v. Houston Computers Services,
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“[t]he authority is legion
that the question of registrability of an applicant's mark must be decided on the basis
of the identification of goods set forth in the application ....”).
When the terms “aqua” (meaning “water”) and “crisps” are combined “the mark[s]
as a whole, i.e., the combination of the individual parts,” do not convey “any
distinctive source-identifying impression contrary to the descriptiveness of the

constructed third-party registered marks, all covering food items. The registrations issued on
the Principal Register without disclaimers of “CRISPS.” (See, e.g., PITA CRISPS (PITA
disclaimed) (Reg. No. 1562411); HARVEST CRISPS (Reg. No. 1584989)). (Response, 4/2/15).
The competing evidence of third-party registrations submitted by Applicant and the
Examining Attorney is of minimal probative value in determining whether the wording
AQUA CRISPS is merely descriptive. In re theDot Commc’ns Network LLC, 101 USPQ2d
1062, 1067 (TTAB 2011). As often stated, each case must stand on its own record and, in any
event, the Board is not bound by the actions of prior examining attorneys. See In re Nett
Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior
registrations had some characteristics similar to [applicant’s] application, the PTO’s
allowance of such prior registrations does not bind the board or this court.”).
Serial Nos. 86310513; 86310537; 86310550

8

individual parts.” In re Oppedahl & Larson, 71 USPQ2d at 1372. To the contrary,
from “the perspective of a prospective purchaser or user” of Applicant’s goods,
“because … the combination of the terms does not result in a composite that alters
the meaning of [any] of the elements … refusal on the ground of descriptiveness is
appropriate.” In re Petroglyph Games, 91 USPQ2d 1332, 1341 (TTAB 2009). The term
“crisp” identifies the specific type or kind of snack, and the use of the term “aqua”
meaning “water” in connection therewith is not all that unusual. In this connection
we take judicial notice of the dictionary definition of the similarly constructed term
“water biscuit,” which is defined as “a biscuit made of flour and water.” American
Heritage Dictionary of the English Language (5th ed. 2016).4 Accordingly, contrary to
Applicant’s arguments, the proposed mark is not incongruous; rather, the mark as a
whole immediately describes a significant characteristic or quality of the goods, that
is, the tapioca crisps are water-based. In point of fact, on its website, as cited above,
Applicant refers to its product as “water crisps.” See DuoProSS Meditech Corp. v.
Inviro Med. Devices, Ltd., 103 USPQ2d at 1757; Remington Prods. Inc. v. North
American Philips Corp., 892 F.2d 1576, 13 USPQ2d 1444, 1448 (Fed. Cir. 1990)
(evidence showed purported trademark owner itself used TRAVEL CARE in
descriptive manner); In re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1663 (TTAB
1988) (GROUP SALES BOX OFFICE is nothing more than a combination of the two

4 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). See In re Thomas
White Int'l Ltd., 106 USPQ2d 1158, 1160 n.1 (TTAB 2013).
Serial Nos. 86310513; 86310537; 86310550

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common descriptive terms most applicable to applicant’s services which in
combination achieve no different status but remain a common descriptive compound
expression). The terminology in Applicant’s patent application covering “water-based
snack products” also supports our conclusion.
In sum, on this record, we conclude that consumers familiar with Applicant’s
goods would immediately understand, upon seeing the wording AQUA CRISPS, that
the goods are water-based crisps. No imagination or thought is required by a
prospective purchaser to discern that a significant characteristic or quality of
Applicant’s snack food products is that the crisps are water-based. Furthermore,
Applicant’s competitors who also might offer similar goods should have the
opportunity to use wording such as “aqua crisps,” “water crisps,” or variations thereof
to explain a significant characteristic or quality of their goods. See In re Boston Beer
Co. L.P., 47 USPQ2d 1914, 1920-21 (TTAB 1998), aff’d, 198 F.3d 1370, 53 USPQ2d
1056 (Fed. Cir. 1999); In re Abcor Development, 200 USPQ at 217 (“The major reasons
for not protecting [merely descriptive] marks are … to maintain freedom of the public
to use the language involved, thus avoiding the possibility of harassing infringement
suits by the registrant against others who use the mark when advertising or
describing their own products.”). The fact that an applicant may be the first and only
user of a merely descriptive designation does not justify registration if the only
significance conveyed by the term is merely descriptive. See In re Fat Boys Water
Sports LLC, 118 USPQ2d 1511, 1514 (TTAB 2016); In re Phoseon Tech., Inc., 103
USPQ2d 1822, 1826 (TTAB 2012).
Serial Nos. 86310513; 86310537; 86310550

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We conclude that the wording AQUA CRISPS, when used in connection with
Applicant’s snack products, is merely descriptive thereof. Thus, the marks shown in
Application Serial Nos. 86310513 and 86310550 are merely descriptive in their
entireties.
That brings us to the logo mark shown in Application Serial No. 86310537.
Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), reads, in relevant part, as
follows: “The Director may require the applicant to disclaim an unregistrable
component of a mark otherwise registrable.” A disclaimer is a statement that the
applicant or registrant does not claim the exclusive right to use a specified element
or elements of the mark in a trademark application or registration. “The effect of a
disclaimer is to disavow any exclusive right to the use of a specified word, phrase, or
design outside of its use within a composite mark.” In re Franklin Press, Inc., 597
F.2d 270, 201 USPQ 662, 665 (CCPA 1979). See In re Wada, 194 F.3d 1297, 52
USPQ2d 1539 (Fed. Cir. 1999); Sprague Electric Co. v. Erie Resistor Corp., 101 USPQ
486, 486-87 (Comm'r Pats. 1954) (“As used in trade mark registrations, a disclaimer
of a component of a composite mark amounts merely to a statement that, insofar as
that particular registration is concerned, no rights are being asserted in the
disclaimed component standing alone, but rights are asserted in the composite; and
the particular registration represents only such rights as flow from the use of the
composite mark.”).
“[I]t is within the discretion of an Examining Attorney to require the disclaimer
of an unregistrable component (such as a common descriptive, or generic, name) of a
Serial Nos. 86310513; 86310537; 86310550

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composite mark sought to be registered on the Principal Register.” In re Creative
Goldsmiths of Wash., Inc., 229 USPQ 766, 768 (TTAB 1986). Failure to comply with
a requirement for a disclaimer is a basis on which to refuse registration. See In re
Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1399-1400 (Fed. Cir. 2006); In re
Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005); In re Omaha
Nat'l Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re Richardson Ink
Co., 511 F.2d 559, 185 USPQ 46, 47 (CCPA 1975); In re Nat'l Presto Indus., Inc., 197
USPQ 188, 190 (TTAB 1977); In re Pendleton Tool Indus., Inc., 157 USPQ 114, 115
(TTAB 1968).
Because we have determined that the wording AQUA CRISPS is merely
descriptive of Applicant’s goods, the disclaimer requirement in application Serial No.
86310537 is proper. In order to comply with this portion of the present decision, a
properly worded disclaimer should be submitted as follows in the application: “No
claim is made to the exclusive right to use AQUA CRISPS apart from the mark as
shown.”
Decision: The refusal to register is affirmed in each of the applications. In
application Serial No. 86310537, Applicant is allowed 30 days to submit a disclaimer
of AQUA CRISPS, in which case the decision in that application only will be set aside.