Societe Comptoir Mediterranean de L'Olive "Comolive"

Trademark Trial and Appeal Board

Sep 23, 2008

No. 79023892 (T.T.A.B. Sep. 23, 2008)

Mailed: 9/23/08

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Societe Comptoir Mediterraneen de L’Olive “Comolive”
________

Serial No. 79023892
_______

John A. Clifford and Danielle I. Mattessich of Merchant &
Gould for Societe Comptoir Mediterraneen de L’Olive
“Comolive”.

Scott K. Bibb, Trademark Examining Attorney, Law Office 109
(Dan Vavonese, Managing Attorney).
_______

Before Quinn, Rogers and Cataldo, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

Societe Comptoir Mediterraneen de L’Olive “Comolive”
filed an application to register the mark BELDI for “tinned
olives.”1
The trademark examining attorney refused registration
under Section 2(e)(1) on the ground that applicant’s mark,

1 Application Serial No. 79023892, filed April 4, 2006 under the
Madrid Protocol, Section 66(a) of the Trademark Act, 15 U.S.C.
§1141(f), based on International Registration No. 0337453.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Ser No. 79023892
2
when applied to applicant’s goods, is merely descriptive
thereof.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
The examining attorney maintains that the proposed
mark is commonly used in the gourmet olive market to
describe a particular type of olive, namely a small, fruity
brine-cured olive from Morocco. The examining attorney
finds that consumers seeking to purchase olives from
specialty stores are accustomed to seeing the term “Beldi”
or “beldi” used to identify a type of olive from Morocco
that comes from a variety of sources, rather than used as a
trademark for an olive originating from a single source.
Thus, the examining attorney asserts, an American consumer
shopping for olives would perceive BELDI as identifying
actual Beldi-type olives from Morocco, not as a source-
indicating mark of applicant. In support of the refusal
the examining attorney introduced excerpts of several
third-party websites.
Applicant argues that the examining attorney’s
evidence is flawed, and that the third-party uses of
“Beldi” shown therein are misuses of applicant’s mark.
Applicant asserts that the term “Beldi” is used in
connection with a wide variety of goods and/or services,
Ser No. 79023892
3
ranging from a vacation village resort in Turkey, to a type
of cutlery, to a Tunisian folkdance. Thus, applicant
argues, the Office has not met its burden in establishing
that the purchasing public recognizes “Beldi” as a
“variety” of olives. In support of its arguments,
applicant submitted excerpts of several third-party
websites, a certificate issued by the Kingdom of Morocco,
and a copy of a judgment from the Paris Regional Court
upholding the French trademark registration that is the
base registration for the International registration upon
which the present U.S. application is based.
A term is deemed to be merely descriptive of goods or
services, 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 or services. In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828 (Fed. Cir. 2007); and In re
Abcor Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). A term need not immediately convey an idea of each
and every specific feature of the applicant’s goods or
services in order to be considered merely descriptive;
rather, it is sufficient that the term describes one
significant attribute, function or property of the goods or
services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982);
Ser No. 79023892
4
and In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether
a term is merely descriptive is determined not in the
abstract, but in relation to the goods or services for
which registration is sought, the context in which it is
being used on or in connection with the goods or services,
and the possible significance that the term would have to
the average purchaser of the goods or services because of
the manner of its use. That a term may have other meanings
in different contexts is not controlling. In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled
that “[t]he question is not whether someone presented with
only the mark could guess what the goods or services are.
Rather, the question is whether someone who knows what the
goods or services are will understand the mark to convey
information about them.” In re Tower Tech Inc., 64 USPQ2d
1314, 1316-17 (TTAB 2002). The “average” or “ordinary”
consumer is the class or classes of actual or prospective
customers of applicant’s goods or services. In re Omaha
National Corporation, 819 F.2d 1117, 2 USPQ2d 1859 (Fed.
Cir. 1987).
We note, at the outset, that the present record does
not include any dictionary definitions of the term “Beldi.”
However, the examining attorney’s Internet evidence shows
numerous third-party uses of the term to identify a
Ser No. 79023892
5
particular type of olive. The excerpts of these third-
party web pages include the following:
Varieties of olives
Beldi
A small, fruity olive from Morocco.
Brine-cured, it is often used in olive
mixes and in cooking.2
(www.wholefoodsmarket.com)

Beldi
The main olive variety harvested for
preserves in Morocco is the Beldi. It
is the ideal olive for preserving
because of the firm texture and
thickness of its flesh.
(www.olives-tramier.com)

At Olive Harvest our superior cultivars
of olives, namely Beldi and Souri are
carefully handpicked...
(www.oliveharvest.com)

Morocco: “Nomads” – earthy, lush Beldi
olives...
(www.oliveoilturkey.com)

Beldi olives marinated in herbs de
Provence
(www.1800gourmet.com)

Olives
Try a pink Beldi. Cured in coriander
and lemon juice, these olives provide a
very intense, briny flavor—truly for
the olive fanatic.
(www.hgtv.com)

Green Olives in Harissa Sauce
Beldi olives marinated in a North
African type hot sauce. Tasty but not
overly spicy.
(www.3e.com)

2 Also listed are “varieties” such as Kalamata, Manzanilla,
Nicoise and Picholine.
Ser No. 79023892
6

So I asked said olive expert for
advice, and he suggested using Beldi
olives.
(www.weathershenker.com)

These olives are made from gorgeous
reddish-purple olives known as beldi in
Morocco.
(www.amazon.com)

Red Bigaradier Olives commonly known as
Beldi Olives are reddish-purple. They
are softer than green olives and have a
delicious, slightly nutty flavor and a
hint of bitterness on the finish.
(www.tagines.com)

...assorted beldi olives, nicoise
olives, green chiles, red pepper,
garlic, fava beans in an herb sauce.
(www.martinpreferredfoods.com)

Moroccan Purple Beldi Olives are grown
in the remote Atlas mountain range of
Morocco, where the climate, rich soil
and the ancient groves produce these
savory olives.
(www.zamourispices.com)

Applicant’s competing Internet evidence shows the use
of the term “Beldi” in connection with a variety of goods
and services, including a ClubMed resort in Turkey;
cutlery; computer software; pottery; cosmetics; a Tunisian
dance; mineral mines in the UK; and a geographic location.
We find that the Internet evidence weighs in favor of
a finding of mere descriptiveness. As pointed out by the
examining attorney, the proposed mark must be considered in
the context of applicant’s goods, namely, “tinned olives.”
Ser No. 79023892
7
As noted earlier, that applicant’s mark may have meanings
in different contexts, as shown by its evidence, does not
detract from the mere descriptiveness of the term for
olives.
We also find that applicant’s criticisms of the
examining attorney’s evidence have no basis in the record:
The evidence relied upon to reject the
application consists of an editorial
copy from websites offering to sell
olives in an on-line environment. The
authors of such copy are typically
junior advertising personnel or
clerical employees with no special
training, skill or experience. It is
unknown what, if anything, such copy
writers are looking at when writing
these materials, and it is entirely
possible that they simply “cut and
paste” their copy from the work of
others. If they copy from a site
offering BELDI branded olives, they
could easily repeat the term in their
own copy. Applicant submits that this
type of error is the source of the
evidence relied upon to reject this
application, and is the reason such
“evidence” is unreliable and should be
discounted to [sic] disregarded.

These Internet excerpts merely
demonstrate the improper usage of
Applicant’s trademark, and are not
persuasive of the Office’s contention
regarding the nature and extent of the
BELDI mark as a varietal name for
olives.

Firstly, Internet evidence is acceptable for submission in
a Board proceeding as it constitutes evidence of potential
Ser No. 79023892
8
public exposure. In re Bayer Aktiengesellshaft, 82 USPQ2d
at 1833; In re Fitch IBCA Inc., 64 USPQ2d 1058, 1060 (TTAB
2002). See TBMP §1208.03 (2d ed. rev. 2004); TMEP
§710.01(b) (5th ed. 2007). Secondly, applicant did not
produce any probative evidence that contravenes the
reliability of the web pages. Further, applicant did not
indicate that it has taken any action against these alleged
“improper” uses of applicant’s mark.
Applicant equates the unreliability of the examining
attorney’s Internet evidence with Wikipedia evidence.
Indeed, the Board has noted in the past that there are
inherent problems regarding the reliability of Wikipedia
entries because Wikipedia is a collaborative website that
permits anyone to edit the entries. Nevertheless, the
Board has considered such evidence with certain caveats.
For example, although the Board encourages additional
evidence to corroborate Wikipedia evidence, “the Board will
consider evidence taken from Wikipedia so long as the non-
offering party has an opportunity to rebut the evidence by
submitting other evidence that may call into question the
accuracy of the particular Wikipedia information.” In re
IP Carrier Consulting Group, 84 USPQ2d 1028, 1032 (TTAB
2007). In the same manner herein, while applicant
criticizes the Internet evidence introduced by the
Ser No. 79023892
9
examining attorney, it did not avail itself of the
opportunities to rebut the evidence by submitting other
probative evidence that would call into question the
accuracy of the information contained in the web pages.
Thus, we have no reason to discount or disregard the
evidence. Even assuming arguendo that BELDI is a trademark
of applicant’s, the public exposure in this country appears
to be that of a type of kind of olive, rather than an olive
exclusively originating from applicant. As stated by the
examining attorney, “[c]onsumers seeking to purchase olives
from specialty food stores are accustomed to seeing the
word ‘beldi’ used to identify a type of olive from Morocco
that comes from a variety of sources, rather than being
used as a trademark for an olive coming from a single
source.” (Brief, p. 7).
The other evidence of record does not persuade us to
reach a contrary decision. Applicant introduced a
“Certificate” issued by the Kingdom of Morocco’s
Independent Establishment for Export Control and
Coordination, dated March 24, 2005. The certificate
indicates that the name “Beldi” has been filed
internationally as a trademark and that “said name is not
included among the varieties of olives recognized by the
Ser No. 79023892
10
ITO (International Trade Organization), viz. Meslala,
Picholine Marocaine, Haouzia and Menara.”
Firstly, this document reflects the view of a foreign
governmental entity, and is not probative of the purchasing
public’s perception of the proposed mark in this country.
Secondly, as pointed out by the examining attorney, the
document is over three years old, and the status of the
term “Beldi,” even in the view of this Moroccan
governmental entity, may have changed in the interim.
Also of record is a document captioned “Enforceable
Writ of Judgment” issued by the Paris Regional Court on
March 19, 2007. The case involved applicant as a plaintiff
against Federation des Industries Condimentaires de France
over the use of “Beldi.” Applicant successfully defended
its claim to trademark rights in BELDI against a claim by
the French government agency that the term should be
reserved to identify a variety of olives in Morocco.
Although we have considered this evidence, it is well
settled that the findings of a foreign tribunal are not
relevant to the issues in a proceeding concerning the right
to register a trademark in the United States. See, e.g.,
Societe Civile Des Domaines Dourthe Freres v. S.A.
Consortium Vinicole De Bordeaux Et De La Gironde, 6 USPQ2d
1205, 1207 n. 6 (TTAB 1988).
Ser No. 79023892
11
Based on the record before us, we find that the term
BELDI, when applied to tinned olives, merely describes a
type or kind of olive.
Decision: The refusal to register is affirmed.