Champagne Montaudon

Trademark Trial and Appeal Board

Sep 9, 2008

No. 79028383 (T.T.A.B. Sep. 9, 2008)

Mailed:
September 9, 2008
Bucher
UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Champagne Montaudon
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Serial No. 79028383
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William C. Wright of Epstein Drangel Bazerman & James, LLP
for Champagne Montaudon.

Andrea Koyner Nadelman, Trademark Examining Attorney, Law
Office 110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Walters, Bucher and Walsh, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Champagne Montaudon seeks registration on the Principal
Register of the following composite mark:

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 79028383
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for goods identified in the application, as amended, as
follows:
“alcoholic beverages, namely, alcoholic punch
and rum; alcoholic beverages, namely prepared
alcoholic cocktails and aperitifs, digesters
in the nature of liqueurs and potable spirits,
eaux-de-vie, alcoholic beverages of fruit,
alcoholic fruit extracts, liqueurs, distilled
and potable spirits, wine, French wine, namely
champagne” in International Class 33.1
The Trademark Examining Attorney refused registration on
the ground that the word “Rose” is merely descriptive of the
goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1), and therefore requires a disclaimer within the
meaning of Section 6 of the Trademark Act, 15 U.S.C. § 1056.
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board. We affirm the
refusal to register.
Applicant argues that the two-word term, “Grande Rose,”
is unitary and hence a disclaimer of the word “Rose” is not

1 On August 3, 2006, applicant made a Request for Extension of
Protection, seeking registration on the Principal Register. On
October 19, 2006, the application was forwarded to the United
States Patent and Trademark Office, and assigned application
Serial No. 79028383. The mark is comprised of an oval device
consisting of two concentric ovals. The first oval (located in
external circumference) is pale orange and includes in its middle a
fuchsia concentric edging with small half-circles at regular
intervals. The second oval (located inside the first oval) is pink
and includes two oval concentric lines, one of which is black and
located at the circumference, the second is grey and nearer the
center. At the bottom of the second oval are the words “Grande
Rose” in italic black lettering. The colors pale orange, fuchsia,
pink, black and grey are claimed as a feature of the mark.
Serial No. 79028383
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necessary. Applicant discusses two well-known, readily-
perceived meanings for this combined term.
Applicant cites to the teachings of the Court of
Appeals for the Federal Circuit in
Dena Corp. v. Belvedere
International Inc., 950 F.2d 1555,
1561, 21 USPQ2d 1047, 1052 (Fed.
Cir. 1991). When a composite mark
has certain observable
characteristics that make its
elements inseparable, the mark is

unitary. Specifically, these observable characteristics
combine to show that the mark has a distinct meaning of its
own independent of the meaning of its constituent elements.
The first meaning that
applicant contends will be
readily-perceived by
consumers in the United
States is “The Great Rose
Window” or “Le Grande Rose,”
referring to a decorated
circular window found in French Gothic architecture, such as
the one in nearby Reims Cathedral. [see Exhibit #1,
response of May 30, 2007; “L’Assomption” also available at
Serial No. 79028383
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http://catreims.free.fr/rel019.html]. In this vein,
applicant argues that it reinforces this meaning of the
term “Grande Rose” on its wine labels:

Alternatively, applicant argues that even if the
applied for mark does not have a well-known meaning to the
average American consumer, it still has a readily-perceived
and inherently unitary significance, namely a rose flower,
that is long or great, i.e., exceptionally beautiful.
Applicant goes on to argue that this latter interpretation is
in fact supported by the omission of an accent aigu over the
CENTURY artists who so patiently assembled the colours
of the Great Rose Window of Reims Cathedral. The blending
of a Great Champagne can be likened to the glassmaker’s
art, creating a new work worthy of medieval artists.
Serial No. 79028383
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letter “e” in the word “Rose.” As a French company, if
applicant intended to use the term “Rosé” to denote the color
or type of wine being sold under its applied for mark, it would
clearly have done what consumers would have expected for it to
have done, namely, employing the word “Rosé” - the French word
that denotes a light-red wine.
By contrast, the Trademark Examining Attorney argues
that the evidence of record clearly demonstrates that the
word “Rose” identifies both the color of, and a particular
type of wine, including sparkling French wine. She points
to third-party registrations showing that it is the practice
of the United States Patent and Trademark Office to disclaim
the descriptive word “Rose” (or “Rosé”) when it is used in
connection with a variety of alcoholic products such as
those for which applicant seeks an extension of protection.
We turn first to the evidence placed into the record by
the Trademark Examining Attorney demonstrating that the word
“Rose” is merely descriptive of applicant’s particular wine
products in that it identifies both the color (rose or pink)
and the type of wine (rosé wine). She begins by pointing
out that the evidence in this case includes materials from
the GOOGLE® search engine in which the term “Rose Wine”
appeared in over 7.7 million GOOGLE stories. Excerpts from
websites include:
Serial No. 79028383
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• http://www.wisegeek.com/ Answers the question “What is Rose
Wine?” The article states “Rose wines, often referred to
as Blush wines or written Rosé, are wines which are not
truly red, but have enough of a reddish tinge to make them
assuredly not white.
• www.answers.com/ Provides a definition of rose wine: The
noun rose wine has one meaning: Meaning #1: pinkish table
wine from red grapes whose skins were removed after
fermentation began. Synonyms: blush wine, pink wine,
rose.
• http://www.missionliquors.com/ Provides a description of
rose wines: Rose wines have an excellent balance and
great finesse ... [t]he cultivation of rose wine exists
throughout the entire world.
• www.foodreference.com/ Provides commentary about rose
wines, including: Excellent rose wines come from Provence
and southern Cotes du Rhône (both in France), Catalonia,
Navarra (both in Spain) and also from Ontario and B.C.
• http://www.progressivegrocer.com/ Provides information about
rose wine sales: Consumers tastes for wine are becoming
increasingly upscale, driving sales of premium-priced rose
wines up 45 percent in the past year.
• http://home.howstuffworks.com/ Provides information on how
to remove rose and red wine stains from a variety of
products.
• http://www.blogowogo.com/ Provides personal opinions about
rose wine: The weather is perfect, school is nearly out,
baseball season’s in full swing, and the rose wines have
arrived.
• http://www.ladieswholaunch.com/ Provides excerpts from a
book that includes information on Enjoying rose wines:
Finally the nice weather is upon us (let’s hope it stays!)
and what better on a sunny spring day than a glass of
refreshing Rose wine.
• www.professorbainbridge.com/ Provides reviews of Wine-
California-Rose.
Even more narrowly than all blush or pink wines, the
Trademark Examining Attorney also argues that the evidence
Serial No. 79028383
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in this case includes materials from the GOOGLE® search
engine in which the word “Rose” (or “Rosé”) appears close
to the word “Champagne” in approximately 412,000 stories.
Excerpts from these websites include:
• http://www.drinkon.com/ Provides information about rose
champagne: Rose champagne has a reputation for romance,
glamour and sophistication and our range of pink
champagne is one of the best you’ll find anywhere.
• http://splendidtable.publicradio.org/ Provides
commentary about rose champagne for Valentine’s Day:
Wine guy and author Jay McInerney (Bacchus and Me),
think Rose Champagne is the perfect sip for
Valentine’s Day.
• www.weddingsandcourtships.com/ Provides a recipe for La
Vie en Rose with the following ingredients: 1/2 shot
glass rose water, 1 sugar cube (or 1 tsp sugar), Rose
Champagne.
Accordingly, she argues that this evidence
demonstrates that the word “Rose” identifies applicant’s
particular wine products as well, namely, sparkling wine
from France. Similarly, the following third-party
registrations reflect past United States Patent and Trademark
Office practice of having trademark owners disclaim the word
“Rose” (or Rosé) when used in connection with alcoholic
products such as those listed by applicant:

Registration No. 0980477
for rose wines. The word
“Rosé” is disclaimed
ROSE DE SAIGNEE Registration No. 2465997
Serial No. 79028383
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for wine. The word “Rose”
is disclaimed. The English
translation of the term
“Saignee” is “to bleed.”

Registration No. 2349543 for
champagne. The words “Brut
Rosé” and “Champagne” are
disclaimed.

Registration No. 2697137 for
champagne. The words
“Champagne Brut” and “Cuvée
Rosé Brut” are disclaimed.

RENDEZVOUS ROSE Registration No. 2815135
for bottled wine. The word
“Rose” is disclaimed.

Registration No. 3181111
for champagne with protected
label of origin. The words
“Champagne” and “Brut Rosé”
are disclaimed.

Serial No. 79028383
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The Trademark Examining Attorney contends that
applicant has not proffered any evidence that supports the
assertion that consumers would be aware of Gothic
architecture styles that appear in European cathedrals,
and hence, that this combined term does not have a
separate, unitary meaning readily recognizable in the
United States. As to applicant’s alternative argument, the
Trademark Examining Attorney argues that the term “rose” is
not something that would normally be described as “grande,”
that American consumers do not have reason to use the phrase
“grande rose,” nor does this two-word expression have a
unitary meaning for these consumers.
Analysis
As stated clearly by our principal reviewing Court, in a
case cited with favor in applicant’s brief: “A unitary mark
simply has no ‘unregistrable component,’ but is instead an
inseparable whole.” See Dena Corp. v. Belvedere
International Inc., 21 USPQ2d at 1051. The Belvedere Court,
reviewed the practice of the United States Patent and
Trademark Office and the statutory history of the policy of
exempting unitary marks from the disclaimer requirement. In
short, because a unitary mark does not fit the ‘unregistrable
Serial No. 79028383
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component’ language of 15 U.S.C. §1056(a),2 the Director
cannot require a disclaimer in such a case.
The Federal Circuit discussed the lack of unitariness in
the EUROPEAN FORMULA & design mark as follows:
A unitary mark has certain observable
characteristics. Specifically, its elements are
inseparable. In a unitary mark, these observable
characteristics must combine to show that the mark
has a distinct meaning of its own independent of
the meaning of its constituent elements. In other
words, a unitary mark must create a single and
distinct commercial impression …
… An examination of the mark discloses that
its elements are not so merged together that they
cannot be regarded as separate (citation omitted).
The words EUROPEAN FORMULA are separate from the
circular design. These two elements are not
connected by any lines or design features.
Nothing melds EUROPEAN FORMULA with the
circular design to create a single indivisible
symbol.
In addition, no particular meaning in the
words EUROPEAN FORMULA or the circular design
links these detached features… The observable
characteristics of Belvedere’s mark show that
its elements are not ‘so merged together that
they cannot be regarded as separable
elements.’ (citation omitted).
The mere proximity of EUROPEAN FORMULA to the
unrelated design feature does not endow the whole
with a single, integrated, and distinct commercial
impression. No evidence suggests that a potential
purchaser would perceive this mark to convey a
single inseparable impression. In the absence of
such evidence, EUROPEAN FORMULA in large type
appears to stand out and convey a meaning wholly
unrelated to the circular design.

2 § 6 (15 U.S.C. § 1056). Disclaimers
(a) The Director may require the applicant to disclaim an
unregistrable component of a mark otherwise registrable. An
applicant may voluntarily disclaim a component of a mark
sought to be registered.

Serial No. 79028383
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We find the teachings of Belvedere to be most applicable
in this case. As in that case, we also find an absence of
unitariness herein. If we were to paraphrase the third
recited paragraph above from the Court in Belvedere, it might
be to say that “Nothing melds the word ‘Grande’ with the word
‘Rose’ to create a single indivisible symbol.” There is no
evidence that prospective customers, upon seeing this
composite mark, would get a single commercial impression of
decorated circular window found in Gothic architecture or of
an exceptionally beautiful, long-stemmed rose.
While we find the reasoning of Belvedere to be most
relevant, the
respective

composite marks are not at all analogous.
The Belvedere composite involved wording
and a design feature, while here we are
faced with the unity or separability of two words.
The determinative question before us is whether or
not the word “Rose” in the context of “Grande Rose” placed
on a label affixed to a bottle of sparkling, blush wine
will be seen as referring to the wine itself.
While it may be true that the oenophile fluent in the
French language would readily distinguish between the word
“Rosé” (i.e., suggesting a type of wine) and the term “Rose”
Serial No. 79028383
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(i.e., suggesting a flower, a color or, in the context of
“Grande Rose,” possibly a medieval window), neither the
excerpts drawn from the Internet nor the disclaimer practice
of the United States Patent and Trademark Office has made
such a distinction. As applied to wines, the term is
disclaimed in third-party registrations irrespective of the
presence or absence of the accent aigu over the letter “e.”
Accordingly, we agree with the Trademark Examining
Attorney that wine purchasers in the United States will not
view “Grande Rose” as a unitary expression. We instead find
that purchasers encountering the words “Grande Rose,” as
applied to applicant’s wine, will view “Grande” as the brand
name, and “Rose” as the color or type of wine. Applicant’s
combining the word “Grande” with the word “Rose” does not
suffice to eliminate or negate the merely descriptive
significance of the word “Rose” as applied to wine, and the
word “Rose” therefore must be disclaimed apart from the mark
as shown.
Decision: The refusal to register absent a disclaimer
of the word “Rose” is hereby affirmed. However, this
decision will be set aside if, within thirty days of the
mailing date of this order, applicant submits to the Board a
proper disclaimer of the word “Rose.” See Trademark Rule
Serial No. 79028383
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2.142(g), 37 U.S.C. § 2.142(g); and TBMP § 1218 (2d ed. rev.
2004). A proper disclaimer would read as follows: “No claim
is made to the exclusive right to use the word ‘Rose’ apart
from the mark as shown.”