The Homebrewer, LLC

Trademark Trial and Appeal Board

Jul 19, 2016

No. 86273728 (T.T.A.B. Jul. 19, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 19, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re The Homebrewer, LLC
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Serial No. 86273728
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Candace L. Moon of The Craft Beer Attorney APC
for The Homebrewer, LLC.
Jeffrey S. DeFord, Trademark Examining Attorney, Law Office 115,
John Lincoski, Managing Attorney.
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Before Taylor, Lykos and Gorowitz,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
The Homebrewer, LLC (“Applicant”) has filed an application to register the mark
Home Brewing Co. in standard characters on the Principal Register for “Beer; Beer,
ale and lager; Beer, ale and porter; Beer, ale, lager, stout and porter; Beer, ale, lager,
stout, porter, shandy; Beers; Black beer; Brewed malt-based alcoholic beverage in the
nature of a beer; Coffee-flavored beer; Flavored beers; Malt beer; Pale beer; Porter”
Serial No. 86273728
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in International Class 32.1 Applicant has disclaimed the wording “Brewing Co.” apart
from the mark as shown.
The Trademark Examining Attorney has refused registration of the mark under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the
mark is merely descriptive of Applicant’s identified goods. When the refusal was
made final, Applicant appealed and requested reconsideration. The Trademark
Examining Attorney maintained the refusal to register and denied the request for
reconsideration. Thereafter, the appeal was resumed and is now briefed.2
For the reasons set forth below, we affirm the refusal to register.
Whether the Mark is Merely Descriptive?
Section 2(e)(1) of the Trademark Act precludes registration of a mark that, when
used in connection with the goods or services of the applicant, is merely descriptive
of them. 15 U.S.C. § 1052(e)(1). “A term is merely descriptive if it immediately
conveys knowledge of a quality, feature, function, or characteristic of the goods or
services with which it is used.” In re Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488

1 Application Serial No. 86273728, filed May 6, 2014, pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
2 Applicant in its appeal brief has requested the alternative relief that its mark be amended
to the Supplemental Register. Applicant’s request is denied. At the appeal stage, the proper
procedure for consideration of a proposed amendment to the Supplemental Register is a
request for remand. See Trademark Trial and Appeal Board Manual of Procedure (“TBMP”)
§ 1209.04 (2016). The request for remand must include a showing of good cause. Id. In
evaluating whether good cause has been demonstrated, the Board considers both the reason
for the remand and the point in the appeal at which the remand has been filed. Id. Given the
late stage of this appeal, even if Applicant had requested a remand, it is likely that it would
have been denied.
Serial No. 86273728
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F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). The determination of whether a
mark is merely descriptive must be made in relation to the goods or services for which
registration is sought, not in the abstract. In re Chamber of Commerce, 102 USPQ2d
at 1219; In re Bayer, 82 USPQ2d at 1831. This requires consideration of the context
in which the mark is used or intended to be used in connection with those goods or
services, and the possible significance that the mark would have to the average
purchaser of the goods or services in the marketplace. In re Chamber of Commerce,
102 USPQ2d at 1219; In re Bayer, 82 USPQ2d at 1831; In re Omaha Nat’l Corp., 819
F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987). Evidence that a term is merely
descriptive to the relevant purchasing public “may be obtained from any competent
source, such as dictionaries, newspapers, or surveys.” In re Bayer, 82 USPQ2d at 1831
(quoting In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir.
1986)).
Notwithstanding Applicant’s voluntary disclaimer of the wording “Brewing Co.”,
the issue before the Board is whether Applicant’s mark Home Brewing Co., as a
whole, is descriptive of the identified goods.
Applicant argues that the dictionary definitions of record demonstrate that the
word “home” denotes “one’s place of residence”; “the place where one lives
permanently, especially a member of a family or household”; and “a house, apartment
or shelter that is the usual residence of a person, family or household.” Office Action
Response dated February 16, 2015 (Merriam-Webster.com), Trademark Status &
Document Retrieval (“TSDR”) pp. 6-11; Request for Reconsideration dated September
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30, 2015 (Oxford Dictionaries – U.S. English and Dictionary.com), TSDR pp. 8-26.
Applicant explains that the goods listed in the application will be produced and sold
from a business location, not a residential unit, and by a business entity, namely
Applicant’s limited liability company, not a family. Based on this evidence, Applicant
asserts that the term “home” as used in its mark Home Brewing Co. does not
describe a quality or characteristic of the identified goods; rather, it is a marketing
tool suggestive of “the sense of community and familiarity, as well as the notions of
homeliness and comfort that one associates with their home.”3 Applicant’s Brief, p. 4;
7 TTABVUE 5. Applicant further adds that because “homebrew” and “homebrewing”
are popular terms of art in the craft beer industry, the relevant consumer group
encountering Applicant’s mark will immediately know that Applicant’s products are
not “homebrewed” because it is illegal to sell beer produced from one’s home. Request
for Reconsideration dated September 30, 2015, TSDR pp. 44-65.
In reviewing the evidence of record, we highlight the following excerpts from an
entry entitled “Homebrewing” from Wikipedia submitted by the Examining Attorney:
Homebrewing is the brewing of beer, sake, and other beverages
through fermentation on a small scale as a hobby for personal
consumption, free distribution at social gatherings, amateur brewing
competitions or other non-commercial reasons. Both alcoholic and non-
alcoholic beverages can be made from home. The term is also used
informally for the production of non-brewed alcoholic drinks such as
wine, cider, and perry.…The legality of homebrewing varies from
country to country.

3 Applicant also points to a house design used in conjunction with its word mark as reinforcing
this meaning of the mark. Applicant’s Brief, pp. 4-5; Final Office Action dated March 30,
2015, TSDR pp. 2-3, 10, 12, and 15. Applicant, however, applied for a mark in standard
character format; therefore, this is the mark we must evaluate on appeal.
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…

Beer. In general brewing beer at home is very similar to brewing beer
commercially. Homebrewers can select from ingredients identical to
those used in commercial brewing, in addition to a wide range of post-
market customization. The basic ingredients that are necessary include
water, malt, hops and yeast. With the exception of water (although
minerality, pH, and other characteristics do play a role and careful
water selection is recommended, any water will do), there are countless
varieties of these ingredients.
…
The principles behind home brewing beer are similar to commercial
brewing. A hopped wort is produced and yeast pitched into the wort to
stimulate fermentation. The complexity of the process is mostly
determined by the approach used to manufacture the wort; by far the
simplest method is kit brewing.

Office Action dated August 25, 2014, TSDR pp. 11. This evidence standing alone
supports a determination that Applicant’s mark, Home Brewing Co., immediately
informs prospective purchasers as to a quality, feature, or characteristic of the
identified goods, namely that the target market for Applicant’s identified goods are
“home brewing” enthusiasts seeking to replicate at home the various the types of
beers offered by Applicant, who are seeking a specific taste for their beer. A term that
alludes to the group to whom an applicant directs its goods or services is merely
descriptive. See In re Planalytics, Inc., 70 USPQ2d 1453 (TTAB 2004) (GASBUYER
merely descriptive of risk management services in the field of pricing and purchasing
natural gas); Hunter Publ’g Co. v. Caulfield Publ’g Ltd., 1 USPQ2d 1996 (TTAB 1986)
(SYSTEMS USER found merely descriptive of a trade journal directed toward users
of large data processing systems; evidence sufficient to establish distinctiveness
under Section 2(f)); In re Camel Mfg. Co., Inc.,222 USPQ 1031 (TTAB 1984)
(MOUNTAIN CAMPER held merely descriptive of retail mail-order services in the
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field of outdoor equipment and apparel). Such is the case here, even though the term
appears in adjective, not noun, form. And contrary to Applicant’s assertion, the
inclusion of the non-source indicator “Co.” to its mark does not mitigate our finding
that the mark is merely descriptiveness. See, e.g., In re The Phone Co., Inc., 218 USPQ
1027 (TTAB 1983) (THE PHONE COMPANY merely descriptive of telephones). It is
well established that business type designations and abbreviations such as
“Corporation,” “Inc.,” “Company,” and “Ltd.” or family business designations such as
“& Son’s” or “Bros.” merely indicate an applicant’s business type or structure and
generally have no source-indicating capacity. See, e.g., Goodyear’s India Rubber Glove
Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602-03 (1888); In re Piano Factory
Grp., Inc., 85 USPQ2d 1522, 1526 (TTAB 2006); In re Patent & Trademark Servs.,
Inc., 49 USPQ2d 1537, 1539-40 (TTAB 1998).
Next we note the evidence made of record by the Examining Attorney obtained
from Applicant’s own web site. Applicant has objected to consideration of this
evidence, arguing that it has since changed its proposed business model. We need not
rely upon any of this extrinsic evidence to find that Applicant’s mark is merely
descriptive of the identified goods. Because the identification as worded is
unrestricted, it necessarily encompasses all types of “Beer; Beer, ale and lager; Beer,
ale and porter; Beer, ale, lager, stout and porter; Beer, ale, lager, stout, porter,
shandy; Beers; Black beer; Brewed malt-based alcoholic beverage in the nature of a
beer; Coffee-flavored beer; Flavored beers; Malt beer; Pale beer; Porter”, including
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those types marketed to “home brewing” hobbyists and created to taste like high
quality “home brewed” beer.
Applicant points to the third-party registrations it made of record for registered
marks including the word “HOME” for International Class 32 goods as support for its
assertion that its proposed mark is not merely descriptive. See Request for
Reconsideration dated September 30, 2015. None of this evidence, however, has a
bearing on the appeal before us. See In re Scholastic Testing Serv., Inc., 196 USPQ
517, 519 (TTAB 1977).
In light of the foregoing reasons, we find Applicant’s mark Home Brewing Co.
in standard characters merely descriptive of “Beer; Beer, ale and lager; Beer, ale and
porter; Beer, ale, lager, stout and porter; Beer, ale, lager, stout, porter, shandy; Beers;
Black beer; Brewed malt-based alcoholic beverage in the nature of a beer; Coffee-
flavored beer; Flavored beers; Malt beer; Pale beer; Porter.”
Decision: The descriptiveness refusal to register Applicant’s mark under Section
2(e)(1) of the Trademark Act is affirmed.