Absopure Water Co.

Trademark Trial and Appeal Board

Oct 11, 2000

No. 75426506 (T.T.A.B. Oct. 11, 2000)

Paper No. 11
HRW
10/11/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Absopure Water Company
________
Serial No. 75/426,506
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John P. Guenther of Rader, Fishman & Grauer PLLC
for Absopure Water Company.
Heather D. Thompson, Trademark Examining Attorney, Law
Office 103 (Michael A. Szoke, Managing Attorney).
_______
Before Wendel, Bucher and Bottorff, Administrative
Trademark Judges.
Opinion by Wendel, Administrative Trademark Judge:
Absopure Water Company has filed an application to
register the mark HYDRATION CENTER for “retail beverage
vending services featuring mobile and stationary beverage
sampling booths.”1
Registration has been finally refused on the ground
that the mark is merely descriptive under Section 2(e)(1)
of the Trademark Act. The refusal has been appealed and
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/426,506
2
both applicant and the Examining Attorney have filed
briefs. An oral hearing was not requested.
The Examining Attorney maintains that the proposed
mark HYDRATION CENTER, when viewed in connection with
applicant’s “mobile and stationary beverage sampling
booths,” would clearly convey the information to consumers
that applicant offers an establishment from which one can
purchase water or other hydrating beverages. As support
for her position the Examining Attorney has made of record
dictionary definitions for the terms “hydration” and
“center,” an excerpt from applicant’s web site showing
applicant’s use and definition of the term “hydration” and
three Nexis excerpts showing use of the term “hydration
center.” The dictionary definitions being relied upon
include the following:
hydration to supply water to (a person, for
example) in order to restore or
maintain fluid balance;
center a place where a particular activity
or service is concentrated.2

1 Serial No. 75,426,506, filed January 30, 1998, based on an
allegation of a bona fide intention to use the mark in commerce.
2 Both of these definitions come from The American Heritage
Dictionary of the English Language (3rd ed. 1992). We take
judicial notice of a similar definition for “hydration” found in
Webster’s Third New International Dictionary (1993):
hydration the act or process of combining with water;
as a: the introduction of additional fluid
into the body (~ sometimes helps to reduce
the concentration of toxic substances in the
tissues.)
Ser No. 75/426,506
3
The excerpt from applicant’s web page consists of a
discussion entitled “Facts about Water & Hydration,” and
includes the statement that “Replenishing the water your
body needs is called HYDRATION.” The Nexis excerpts
include:
However, the Midtown site on 11th Street near the
MARTA station will expand its services by creating
a hydration and first aid center under a tent.
Another coach will be parked near the Medical Center
MARTA station. The Atlanta Journal and Constitution
(May 21 1996);
...Vital Steps to Good Health,” explains water’s role
in athletic performance. For a copy, write to the
Evian Hydration Center, 353 Lexington Ave., New
York... Newsday (September 9, 1989).
Applicant contends that its mark HYDRATION CENTER does
not immediately convey a connection between the phrase and
the services being offered by applicant. Looking at the
terms individually, applicant argues that each term,
“hydration” and “center,” has multiple dictionary
definitions and neither term “merely” describes retail
beverage vending services.3 Even when combined, applicant
insists that the mark HYDRATION CENTER is so broad that it
is subject to numerous interpretations and does not

3 Applicant has offered, however, to disclaim the word CENTER, if
that would overcome the refusal under Section 2(e)(1).
Ser No. 75/426,506
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describe applicant’s services with particularity. Instead,
according to applicant, the mark could be used just as well
in a suggestive manner for a wide variety of goods or
services, such as a company providing irrigation services
or pool equipment or services. Applicant contends that the
minimal Nexis excerpts are of limited value and do not
provide evidence of a common definition of the phrase in
the industry or current use thereof. Applicant further
points to its now incontestable registration for the mark
THE HYRATION DRINK for drinking water4 as evidence that the
Office has previously determined that HYDRATION is
suggestive when used in connection with applicant’s goods.
A term or phrase is merely descriptive within the
meaning of Section 2(e)(1) if it immediately conveys
information about a characteristic or feature of the goods
or services with which it is being used. Whether or not a
particular term is merely descriptive is not determined in
the abstract, but rather in relation to the goods or
services for which registration is sought, the context in
which the designation is being used, and the significance

4 Applicant has attached to its brief a copy of its Registration
No. 1,705,942 for the mark THE HYDRATION DRINK for “drinking
water,” issued August 4, 1992. A disclaimer is made of the term
DRINK. The Examining Attorney has not objected to this evidence
as untimely and thus we have taken it into consideration.
Ser No. 75/426,506
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the designation is likely to have, because of the manner in
which it is used, to the average purchaser as he encounters
the goods or services bearing the designation. See In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA
1978).
We find the evidence made of record by the Examining
Attorney fully adequate to establish that the phrase
HYDRATION CENTER, if used in connection with applicant’s
beverage vending services which are provided at mobile and
stationary sampling booths, would immediately convey
information to consumers as to the nature of these beverage
sampling booths. As pointed out by the Examining Attorney,
the question here is not whether the phrase might have
equal applicability to other goods or services, but rather
whether the phrase is merely descriptive as specifically
applied to applicant's services. The phrase is not viewed
in the abstract, but rather as used in connection with
these particular services.
The dictionary definitions, as well as applicant’s web
page, demonstrate that “hydration” may readily be
interpreted as indicating the replenishment of the body
with fluids, particularly water. Certainly, when the term
is encountered being used in connection with a beverage
sampling booth, this would be the connotation to consumers.
Ser No. 75/426,506
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While the term “hydration” may have other broad
connotations, we are concerned only with its meaning or
significance when used in the context of applicant’s
services. The additional term in applicant’s mark, CENTER,
aptly describes a location in general. Furthermore,
although limited in number, we cannot disregard the Nexis
excerpts which show use of the entire phrase “hydration
center” in reference to beverage provision locations.
Evidence of prior use of the phrase as a whole, or a
dictionary definition of the phrase per se, is not even
necessary, however, to support the present refusal. The
issue is whether the phrase is merely descriptive when used
in connection with applicant’s services, not whether it is
a generic designation which has been used by others for
similar services.
Applicant’s further argument that the Office has
already determined that the term HYDRATION is or can be
suggestive when used in connection with applicant’s goods
is not persuasive. In the first place, we do not have the
file history for applicant’s prior registration before us.
Even more significantly, each application for registration
must be considered on its own merits. See In re Merrill
Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4
USPQ2d 1141 (Fed. Cir. 1987). The present mark differs
Ser No. 75/426,506
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from the registered mark and is to be used with services,
not goods. The descriptive significance of the term
HYDRATION in the mark HYDRATION CENTER as used in
connection with beverage vending services obviously cannot
be equated with the significance when the term is used in
the mark THE HYDRATION DRINK for drinking water. The
incontestability of applicant’s prior registration and any
estoppel effect of the determination by the Office of the
non-descriptiveness of the term HYDRATION as used in the
registered mark is limited to that mark and the goods of
that registration. See In re Dial A Mattress Operating
Corp., 52 USPQ2d 1910, 1917 n.14 (TTAB 1999).
Applicant’s additional argument that any doubt should
be resolved in applicant’s favor is equally unpersuasive.
We are convinced that consumers, upon viewing the
designation HYDRATION CENTER when used, as intended, in
connection with applicant’s beverage sampling booths, would
immediately perceive the descriptive significance of the
designation.
Ser No. 75/426,506
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Decision: The refusal to register under Section
2(e)(1) is affirmed.
H. R. Wendel
D. E. Bucher
C. M. Bottorff
Administrative Trademark Judges,
Trademark Trial and Appeal Board
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