IV Science, LLC d/b/a Green & Co.

Trademark Trial and Appeal Board

Jun 18, 2014

No. 85609906 (T.T.A.B. Jun. 18, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 18, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re IV Science, LLC
d/b/a Green & Co.
_____

Serial No. 85609906
_____

Clifford D. Hyra of Symbus Law Group, LLC,
for IV Science, LLC.
Cheryl Clayton, Trademark Examining Attorney, Law Office 102,
Mitchell Front, Managing Attorney.
_____

Before Kuhlke, Gorowitz and Hightower,
Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
IV Science, LLC, d/b/a Green & Co. (“Applicant”) seeks registration on the
Principal Register of the mark TEA QUILA (in standard characters) for
Alcoholic beverages except beer in International Class
33.1
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the

1 Application Serial No. 85609906 was filed on April 26, 2012 based upon applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
Serial No. 85609906
- 2 -

ground that Applicant’s mark is merely descriptive. After the Examining Attorney
made the refusal final, Applicant appealed to this Board. We affirm the refusal to
register.
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic, feature, function, purpose
or use of the goods. DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); In re Chamber of Commerce of
the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). Whether a
term is merely descriptive is determined not in the abstract, but in relation to the
goods for which registration is sought, the context in which it is being used on or in
connection with the goods, and the possible significance that the term would have to
the average purchaser of the goods because of the manner of its use; that a term
may have other meanings in different contexts is not controlling. In re Chamber of
Commerce of the U.S., 102 USPQ2d at 1219 (citing In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979). The burden is on the United States Patent and
Trademark Office to make a prima facie showing that the mark in question is
merely descriptive. See In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1090
(Fed. Cir. 2005) (citing In re Abcor Development); see also In re Merrill Lynch,
Pierce, Fenner, and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir.
Serial No. 85

1987). T
name o
Recipes
submitt

609906
he Exami
f a drink
for sever
ed with th
Drink
6-4-1
ning Attor
made with
al alcohol
e Office Ac
of the W
2;
ney assert
tea and
ic bevera
tion dated
eek - www
- 3 -
s that the
tequila an
ges contai
June 12, 2
.drinkofth
term “TE
d has sub
ning both
012. Exam
eweek.com
AQUILA”
mitted evi
tea and
ples inclu
- accesse
is used as
dence the
tequila w
de:

d
the
reof.
ere
Serial No. 85

This
beverag
Attorne
wording
descript
609906
DRIN
6/4/12
Star
(This
www
Actio
evidence
e made w
y’s submis
Tea – qu
ive becaus
KNATION

Chefs.com
recipe als
.finecookin
n dated Ap
establishe
ith tea
sion of “a
ila or TeaQ
e “each of
.COM – w
– www.sta
o appeared
g.com an
ril 16, 201
s that th
and tequi
few onl
uila” does
these [rec
- 4 -
ww.drink
rchefs.com
on the Fi
d was at
3.)
e term TE
la. Applic
ine drink
not estab
ipes] is [f
nation.com
– accesse
ne Cookin
tached to
A QUILA
ant argue
recipes w
lish that t
or] a very
- accesse

d 6/4/12
g website
the Offic
describe
s that th
ith titles
he mark T
different
d
at
e
s an alcoh
e Exami
including
EA QUIL
drink.” Ap

olic
ning
the
A is
peal
Serial No. 85609906
- 5 -

Brief, p. 5. Applicant’s argument is not persuasive, particularly since each recipe
includes both tea and tequila.
Applicant also asserts that the Examining Attorney has the burden of showing
that the term TEA QUILA “does nothing but describe the goods or services with
which it is used” and that such burden has not been met. Appeal Brief, p. 3
(emphasis supplied). This is an incorrect interpretation of the law. As discussed,
supra, the context in which it is being used on or in connection with the goods, and
the possible significance that the term would have to the average purchaser of the
goods because of the manner of its use; that a term may have other meanings in
different contexts is not controlling. In re Chamber of Commerce of the U.S., 102
USPQ2d at 1219 (citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d
1828, 1831 (Fed. Cir. 2007)); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979).
Applicant also argues that the mark TEA QUILA is a double entendre. “A
‘double entendre’ is a word or expression capable of more than one interpretation.
For trademark purposes, a ‘double entendre’ is an expression that has a double
connotation or significance as applied to the goods or services. The mark that
comprises the ‘double entendre’ will not be refused registration as merely
descriptive if one of its meanings is not merely descriptive in relation to the goods or
services.” TMEP § 1213.05(c) (April 2014).
Applicant specifically argues that the term TEA QUILA “can be interpreted first
as a type of Quila, where Tea modifies Quila (which may be interpreted as a coined
Serial No. 85609906
- 6 -

or nonsense term, and is also type of bamboo, a city, and in Hindi/Urdu a fort or
fortress).” Appeal Brief, p. 4. Applicant has submitted no evidence supporting its
definition of “quila.” Moreover, Applicant has submitted no evidence that anyone
would interpret TEA QUILA as “tea” + “bamboo, or city, or fort, or fortress.”
Further, unless Applicant can establish that this interpretation of TEA QUILA has
significance as applied to the goods, it is not a double entendre. See TMEP
§ 1213.05(c) (April 2014). In this case, TEA QUILA incorporates a simple
misspelling of the alcoholic beverage tequila, that gives the TEA QUILA the
meanings of both tea and tequila, which, as the record demonstrates, may be
combined to create a mixed drink. Thus, far from being incongruous or a double
entendre, the proposed mark merely describes the ingredients or features of its
goods.
Applicant also argues that the term TEA QUILA sounds like tequila and that
the mark could be interpreted as such. See Appeal Brief, p. 4. We agree. “Tequila” is
defined as “a strong clear alcoholic drink from Mexico.”2 Thus, the term “tequila” is
merely descriptive of alcoholic beverages. Further, as discussed supra, the
Examining Attorney has established that TEA QUILA is the name of a drink made
from tea and tequila

2 We take judicial notice of the definition of “tequila” from Merriam-Webster On-Line
Dictionary (www.m-w.com) . 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).

Serial No. 85609906
- 7 -

In conclusion, we find the mark TEA QUILA to be merely descriptive of
applicant’s “alcoholic beverages.”
Decision: The refusal to register Applicant’s mark TEA QUILA is affirmed.