Tuesday, November 27, 2012

USPTO denies Dunkin' Donuts application for mark --"best coffee in America" --

Note the post in the Los Angeles Time Dunkin' Donuts coffee claim: Best in U.S.? Forget it, agency says

The LA Times, in turn, cites to the Boston Globe Dunkin’ Donuts loses best coffee trademark bid , which mentions the Sam Adams beer case:

The maker of Sam Adams beer, Boston Beer Co., tried to trademark a similar slogan, “The Best Beer in America.” But the trademark office turned down the request, and an appellate court upheld the decision in 1999. The Boston brewer has continued to use the phrase anyway, but without trademark protection.

Within the Sam Adams case before the TTAB, one finds the text:

In the same sense that “AMERICA’S BEST POPCORN!” and “AMERICA’S FAVORITE POPCORN!” were held to be only laudatory, comparative, descriptive designations, “THE BEST BEER IN AMERICA” immediately conveys to prospective purchasers that applicant claims its beer is superior to other beers in this country. See: In re Wileswood, Inc., 201 USPQ 400 (TTAB 1978).(...)
In summary on this point, this record makes it clear that the designation “THE BEST BEER IN AMERICA” is simply a claim of superiority, i.e., trade puffery.


Our holding in the instant case is based on analysis which is essentially no different from that of the Court of Customs and Patent Appeals more than half a century ago in Burmel Handkerchief Corp. v. Cluett, Peabody & Co., Inc., 53 USPQ 369 (CCPA 1942). There the applicant sought to register the words “Handkerchiefs of the Year” for handkerchiefs. On page 372 of that opinion, the predecessor to our primary reviewing court noted with approval the conclusion of the examiner in that case that some terms or designations are “merely laudatory expressions, descriptive of the character or quality of the subject concerned ... and not registrable as trademarks, for the simple reason that they are inherently incapable of functioning as such.”


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