Baroness Small Estates, Inc.v.American Wine Trade, Inc.

Trademark Trial and Appeal Board

Sep 17, 2012

No. 92051369 (T.T.A.B. Sep. 17, 2012)

Mailed:
September 17, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Baroness Small Estates, Inc.

v.

American Wine Trade, Inc.
_____

Cancellation No. 92051369
_____

Clinton J. Cusick of Muskin & Cusick LLC for Baroness Small
Estates, Inc.

John F. Sullivan of Inslee, Best, Doezie & Ryder, P.S. for
American Wine Trade, Inc.
_____

Before Seeherman, Kuhlke and Wolfson, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Baroness Small Estates, Inc. (petitioner) has
petitioned to cancel the registration of American Wine
Trade, Inc. (respondent) for CMS in the stylized lettering
shown below for wine.1

1 Registration No. 2984716, issued August 16, 2005; Section 8
affidavit accepted.
THIS OPINION IS A
PRECEDENT OF THE TTAB
Cancellation No. 92051369
2

The grounds recited in the petition for cancellation
were fraud, genericness, abandonment and mere
descriptiveness. The grounds of fraud and abandonment were
based on allegations that the labels for respondent’s wine
showed the trade name “Hedges Cellars,” and this is the
name of an entity different from respondent. The Board
subsequently granted summary judgment in favor of
respondent on these grounds, respondent having demonstrated
that there was no genuine dispute that “Hedges Cellars” and
“Hedges Family Estate” are trade names of respondent. See
Board order dated March 1, 2011. Accordingly, the only
grounds that remain are genericness and mere
descriptiveness, with petitioner alleging, with respect to
these grounds, that the CMS mark is a generic acronym for
the ingredients that are contained in the wine, namely
cabernet, merlot and syrah; that the mark is a merely
descriptive acronym for the ingredients in the wine, and
was merely descriptive at the time the mark was registered,
and that it did not have secondary meaning at the time it
was registered, and does not have secondary meaning now;

Cancellation No. 92051369
3
and that petitioner has standing because it is in the
business of selling wines, is a competitor of respondent,
and is in a position to use CMS in a descriptive manner.
Respondent denied these allegations in its answer.2
By operation of the rules, the record includes the
pleadings and the file of the registration sought to be
cancelled. Petitioner has submitted, by notices of
reliance, the registration certificate for the registration
at issue in this proceeding, and a label taken from that
registration file;3 copies of petitioner’s registrations for
marks covering wine, showing current status and title, for
the purpose of establishing petitioner’s standing;
respondent’s responses to certain requests for admission
and interrogatories propounded by petitioner; and printouts
from various Internet websites. Respondent has submitted,
under notices of reliance, excerpts from printed
publications; petitioner’s responses to certain requests
for admission; and Internet materials. Respondent also

2 Respondent also asserted as affirmative defenses lack of
standing, laches and unclean hands, but did not pursue these
defenses in its brief. We do not consider respondent’s
statement, in connection with its argument on the generic and
descriptiveness claims, that “Baroness had no objection to the
CMS mark during the many years that Baroness was a distributor of
CMS wines,” brief, p. 20, to be an argument in support of a
laches defense. Accordingly, we treat these affirmative defenses
as having been waived.
3 As noted, the registration file is automatically of record by
operation of Trademark Rule 2.122(b)(2), and therefore there was
no need to submit these documents by notice of reliance.
Cancellation No. 92051369
4
took the testimony deposition, with exhibits, of Thomas
Hedges, one of the owners of respondent.
The proceeding has been fully briefed.4
Facts
Respondent adopted CMS as a trademark in 2001, and
first used it for a red wine that was described as a blend
of cabernets, merlot and syrah, consisting of 57& cabernet
sauvignon, 36% merlot, 5% syrah and 2% cabernet franc. In
2004 respondent began using CMS for a white wine which is a
blend of chardonnay, marsanne and sauvignon blanc. For two
years, in 2005 and 2006 respondent also used CMS for a dry
rosé wine; the label states that it consisted of cabernet
sauvignon, marsanne and syrah.
Standing
Petitioner has made of record several registrations it
owns for marks for wine, thus showing that it is in the
wine business and is a competitor of respondent’s. This is
sufficient to establish petitioner’s standing. See
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d

4 On December 9, 2011, the Board granted petitioner’s motion to
strike the fourth notice of reliance submitted by respondent with
its trial brief, and deferred ruling on the motion to strike any
references to that notice of reliance in respondent’s brief. We
grant the motion to strike to the extent that any statements or
arguments made in the brief based on the stricken evidence have
not been considered. We also give no consideration to the
information in footnote 4 of petitioner’s brief regarding a Fall
2011 catalog that was accessed after the close of the trial
period and is not of record.
Cancellation No. 92051369
5
1842 (Fed. Cir. 2000); Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
Cancellation No. 92051369
6
Genericness
In H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs,
Inc., 782 F.2d 987, 228 USPQ 528 (Fed Cir. 1986), the Court
laid out a two-step inquiry for determining genericness:
First, what is the genus of goods or services at
issue?

Second, is the term sought to be registered or
retained on the register understood by the
relevant public primarily to refer to that genus
of goods or services?

The parties do not dispute that the genus of goods in
this case is “wine.” Petitioner has stated, at page 11 of
its brief, that “The genus of goods is wine.” Respondent
has admitted petitioner’s request for Admission No. 3:
Admit that wine is the genus of the goods. We agree with
the parties that “wine” is the genus.
Thus, we proceed to the second part of the test, and a
determination of whether CMS is understood by the relevant
public to refer to the genus of the goods. It is
petitioner’s position that the public understands that
cabernet, merlot and syrah are the generic names of wines;
and that consumers would understand CMS to refer to these
generic terms.5 We need not reiterate here the evidence as

5 Although petitioner recognizes that respondent uses CMS in
connection with a white wine containing chardonnay, marsanne and
sauvignon blanc, the petition to cancel asserts that CMS is
generic for the ingredients cabernet, merlot and syrah, and that
is the basis for its claim that CMS is generic. See paragraph 1
Cancellation No. 92051369
7
to the generic nature of the names of the individual
varietals since, as the Board explained in its March 1,
2011 order, even if grape varietal names such as merlot or
syrah are generic for wines made from those grapes, it does
not automatically follow that respondent’s mark CMS is
generic. Rather, as noted by the Board, “The question to
be answered is whether the initials for generic or merely
descriptive terms, or a combination thereof, are also
generally recognized and used as an accepted abbreviation
for the term itself.” See Modern Optics, Inc. v. Univis
Lens Co., 234 F.2d 504, 110 USPQ 293, 295 (CCPA 1956)
(“[A]s a general rule, initials cannot be considered
descriptive unless they have become so generally understood
as representing descriptive words as to be accepted as
substantially synonymous therewith”); see also In re
Council on Certification of Nurse Anesthetists, 85 USPQ2d
1403, 1411 (TTAB 2007) (“it is not automatically the case
that the initial letters of a generic term are recognized
as being substantially synonymous with such term”); and
Capital Project Management Inc. v. IMDISI Inc., 70 USPQ2d
1172, 1179 (TTAB 2003) (whether initials for a generic term
are themselves a generic term is a separate issue).

of petition to cancel. This is also the basis for the arguments
in its brief.

Cancellation No. 92051369
8
Accordingly, petitioner has the burden of showing that the
purchasing public understands CMS primarily to refer to
wine.
In order to show that CMS is recognized as a generic
term for wine, petitioner has submitted evidence showing
use of CMS by third parties that it asserts is generic use.
We set forth below the evidence that petitioner has
submitted, interspersing these listings with evidence
directed to it submitted by respondent, as well as our
comments. As an initial comment, we point out that there
is no evidence that the individual letters “C,” “M” and
“S,” when used in connection with wine, have the meaning of
“cabernet,” “merlot” or “syrah” and, indeed, the materials
submitted by petitioner show that there are various grape
varietals that begin with these letters.
The website for Lake Chelan Winery lists, among its
current wines, “2008 CMS (Cabernet, Merlot, Syrah).”
(Petitioner’s notice of reliance Exhibit G, pp. 3-4).
However, respondent has submitted a virtually identical
listing from the same Lake Chelan Winery website which
lists “2008 Cabernet, Merlot, Syrah” — without any
reference to CMS. (Notice of Reliance Exhibit D). The
webpage submitted by petitioner, with the CMS initials,
states it was accessed on May 19, 2011, while the webpage
Cancellation No. 92051369
9
submitted by respondent was downloaded on July 13, 2011.
Thus, even if this third party used CMS in a generic manner
(and it is not clear to us whether consumers would view
this term as generic or as a trademark, given that some of
the wines listed on the webpage are identified by generic
terms and some are identified by trademarks, e.g., “2009
Pinot Grigio” and “2008 Rivers Bend Estate Syrah”), it does
not appear that this listing was available to be accessed
for a very long period of time in terms of having
significant public exposure.
There are several exhibits relating to Palarea wine.
The website http://terroirwinecellars.com has what is
identified as a “Palarea CMS Shelf Talker” which shows, at
the top, in large letters, “Palarea Cabernet
Sauvignon/Merlot/Syrah.” Below that, as part of the
general text, is the statement that “Palarea CMS is a
seductive, estate grown blend made of equal parts Cabernet
Sauvignon, Merlot and Syrah.” It is unclear how this usage
of CMS would be viewed. It could be understood as part of
the trademark Palarea CMS or as being derived from the
varietal names that make up the wine, rather than as a
generic term for the wine. Petitioner has also submitted a
webpage from flickr.com which it states was posted by
Terroir Wine Cellars. It shows a photograph of the Palarea
Cancellation No. 92051369
10
wine bottle. The text under the photograph shows, in
larger letters, “Palarea C.M.S.” and below that is “Palarea
C.M.S. 2005 Tinto, Varietals: 34% Cabernet Sauvignon, 33%
Merlot, 33% Syrah.” “C.M.S.” as shown on this webpage
could as easily be viewed as a trademark than as the
generic term for the blend. A page from a different
website, lerinwines.vpweb.com,6 featuring Palarea wine shows
“Palarea C.M.S. 2005” in large letters, above a picture of
the bottle of wine. The text has “Varietals” and lists
“34% Cabernet Sauvignon 33% Merlot and 33% Syrah.” This
was the only page from that website that was submitted, and
there is no context for the listing, such as indicating
this is a company that sells the wine, or someone that is
merely showing various wines. Thus, we cannot determine
anything about public exposure to this webpage. Further,
the usage of “C.M.S.” on the webpage could as easily be
viewed as part of the trademark as it could be as a generic
term. A March 11, 2011 article in “Entrepreneurship,”
http://madduxpress.com, about a wine importer states that
“By 2010 Clear’s wines landed on the shores of New York to
critical acclaims and awards beginning with Palarea CMS
(Cabernet Sauvignon/Merlot/Syrah) followed by Palarea

6 Respondent apparently typed in the urls and dates the websites
were accessed on the webpages it submitted, so this url does not
show a prefix such as “www” or “http.”
Cancellation No. 92051369
11
Merlot and Gran Passion Cava Brut Reserva.” Again, “CMS”
may as easily be viewed as a trademark for the wine as a
generic term for the blend of varietals. Certainly the
inclusion of the names of the varietals indicates that
consumers would not readily understand CMS per se to be the
generic term for such a blend.
On June 9, 2011, respondent contacted Terroir Wine
Cellars, the seller of Palarea wine, in connection with
these various uses of CMS discussed above. Terroir Wine
Cellars responded on June 21, 2011 that it was never its
intention to infringe on respondent’s trademark, and that
it had removed or changed all mentions of the trademark CMS
from its website and marketing materials. The shelf talker
on the Terroir Wine Cellars website that was downloaded on
July 13, 2011 and submitted by respondent confirms this, in
that there is no mention of CMS on that webpage.7
The website for Flerchinger Vineyards,
www.flerchinger.com, includes the text, “And to give you a
sneak preview, our 2011 offerings will include estate grown
and bottled Merlot and Syrah and estate bottled Cabernet,

7 Petitioner asserts that Terroir Wine Cellars continues to use
Palarea CMS because there is a reference in an article to the
serving of Palarea CMS at a dinner in connection with the Florida
Winefest & Auction. http://finance.bostom.com. However, that
article is dated April 7, 2011, well before respondent sent
Terroir Cellars the cease and desist letter.

Cancellation No. 92051369
12
Cabernet-Merlot and Cabernet-Merlot-Syrah (CMS).” This
indicates that “CMS” is a term that is used to refer to
“Cabernet-Merlot-Syrah.” Respondent submitted evidence
that it had sent a cease and desist letter to Flerchinger
Cellars on June 6, 2011, and respondent’s owner testified
that Flerchinger responded that they would not have used
CMS if they had known it was respondent’s trademark.
Although the responsive letter was not made of record,
respondent did submit a copy of the same webpage submitted
by petitioner. Petitioner’s exhibit shows this webpage was
accessed on May 19, 2011; respondent’s submission of this
same webpage, printed on July 13, 2011, does not include
any reference to “CMS.” Thus, respondent’s exhibit
supports the statement of its owner. Further, it appears
that the amount of time the Flerchinger website used CMS
was quite limited, thereby raising a question as to what
exposure the public had to this usage of CMS.
Petitioner submitted a webpage from Snooth,
www.snooth.com, showing “no current availability” for
“Corvidae Rook Cms ’08 2008,” and containing a review from
Green Jug Fine Wine: “Corvidae’s Rook is a blend of
Cabernet Sauvignon, Syrah, and Merlot. The ripe and rich
Cabernet flavors prevail—juicy loganberry, cassis, and a
base note of black plum and cherry. Syrah adds richness,
Cancellation No. 92051369
13
and Merlot smooths the velvet finish.” Respondent made of
record a cease and desist letter it sent to the owner of
Corvidae Wine Company, and although the responsive letter
is not in the record, respondent’s owner testified that
Corvidae’s response was that it would not have used CMS if
they had known it was respondent’s trademark, and they
would cease use.8
The final third-party use of CMS submitted by
petitioner is a webpage headed “Australian Cabernet
Selections”, www.ericksonfinewines.com, which contains a
listing from the vineyard “Elderton” for, under the heading
“Varietals,” “CMS (Cabernet/Shiraz/Merlot),” vintage 2000.
It also lists, under “Varietals,” wines that appear to be
combinations of varietal names with trademarks, such as
“Cabernet Sauvignon Mulberry Tree” and “Cabernet Sauvignon
Brookman,” and others that are only varietal names or
combination varietal names, such as “Cabernet Sauvignon”
and “Cabernet-Merlot.”
We have, thus, evidence of five different wines for
which the term CMS has been used. For four of those uses,
the evidence is that the makers of those wines have ceased

8 The specific testimony, in response to the question about
responses by winemakers who received respondent’s cease and
desist letters, was “…their answer was, in every case, ‘We had no
intention of marketing this had we known, and now that we know,
we will drop everything.’” Hedges, p. 17.
Cancellation No. 92051369
14
use of CMS, and it is not clear, for any of the uses, to
what extent there has been public exposure to them. See In
re Country Music Association Inc., 100 USPQ2d 1824, 1830
(TTAB 2011) (merit found in applicant’s argument that the
examining attorney’s Internet evidence of third-party
usages are relatively obscure). The mere fact that one can
do a search on the Internet and find, for example, a
photograph on the flickr website, does not mean that
consumers will be aware of this photograph. As Judge Rich
said in connection with NEXIS searches, “It is indeed
remarkable to see the thoroughness with which NEXIS can
regurgitate a placename casually mentioned in the news.”
In re Societe Generale des Eaux Minerales de Vittel S.A.,
824 F.2d 957, 3 USPQ2d 1450, 1451 (Fed. Cir. 1987). The
same is certainly true for words that can be retrieved by
an Internet search. Moreover, the usage of CMS in the
various websites is mixed, at best. A mixture of usages is
not sufficient to show, by clear evidence, that the
purchasers of wine view CMS as a generic term for wine. In
re Merrill Lynch, Pierce, Fenner, and Smith Inc., 4 USPQ2d
1141, 1143 (Fed. Cir. 1987); In re America Online Inc., 77
USPQ2d 1618, 1623 (TTAB 2006).
Petitioner has also submitted a listing from the
website Abbreviations.com, www.abbreviations.com, which is
Cancellation No. 92051369
15
an acronym and abbreviation search site. In response to
the question “What does CMS stand for?”, it retrieved the
answer “Cabernet Merlot Syrah” and “We have 91 more
definitions for CMS.” The answer does not indicate the
basis for listing that CMS stands for these varietal names,
or when it was first listed as such. Respondent submitted
a number of references showing no listing for CMS as having
a meaning for wine. For example, the response of Acronym
Finder, www.acronymfinder.com, to the question “What does
CMS stand for?” lists 278 meanings, including Canadian
Mathematical Society, Cougar Mountain Software, Carver
Middle School (as well as Carmel Middle School, Camden
Middle School, Columbia Middle School and several other
middle schools), Crowd Management Services, California Map
Society and Center for Metalloenzyme Studies. Acronym
Finder’s Acronym Attic, www.acronymattic.com, has 250 more,
unverified meanings for CMS. Dictionary.com lists a
computing dictionary meaning, while the 2005 edition of The
American Heritage Abbreviations Dictionary lists for “CMS,”
“The Chicago Manual of Style” and “command management
system.” There is no listing for “CMS” in the online
Merriam-Webster dictionary that was printed on July 31,
2011, www.merriam-webster.com, or in the Wine Spectator
glossary that was searched on July 13, 2011, nor any wine-
Cancellation No. 92051369
16
related listings in the entry for CMS in Wikipedia,
downloaded on July 15, 2011, or in Wiktionary,
www.wiktionary.org, which entry was last modified on April
8, 2011. Respondent also submitted the result of an
inquiry for “chardonnay marsanne sauvignon blanc” made on
Abbreviations.com showing that no listings were retrieved.
Thus, in all of these reference works, there is only a
single entry for CMS as meaning “cabernet sauvignon,
merlot, syrah”, which was found in Abbreviations.com. We
do not find this evidence particularly persuasive of the
genericness of CMS in light of the evidence showing that
there is no wine-related meaning for this term, including
in a glossary of wine terms. It is further unclear whether
Abbreviations.com lists meanings for CMS that may be
trademarks or proper names, since of the 92 meanings for
CMS that Abbreviations.com states are in its database,
petitioner listed only the meaning of “cabernet sauvignon,
merlot, syrah.”9 Thus, we cannot conclude, on the basis of
the single listing in Abbreviations.com, that CMS has a
generic meaning for wine.
Petitioner has also submitted evidence about the
derivation of respondent’s mark CMS, and there is no

9 The 278 meanings shown by Acronym Finder, as shown above, do
include trademarks and trade names.

Cancellation No. 92051369
17
question that it was derived from the initials of the
varietals that make up the red wine for which the mark is
used. Mr. Hedges testified that he came up with CMS
because “in a way, [it] related to what was in the bottle
originally.” p. 7. In response to Interrogatory No. 3
about the circumstances under which respondent adopted CMS
as its mark, respondent answered that “the branding idea
came from the first letters of Cabernet(s), Merlot, and
Syrah.” Petitioner submitted a number of articles about
respondent’s wine that make this point about the derivation
of the mark, including the following:
… What’s C.M.S. Cabernet, Merlot, Syrah, duh.
You want creative for this kind of price, too? ….
[review of Hedges 2009 C.M.S. Columbia Valley
Cabernet/Merlot/Syrah]
Wine Exchange, www.winex.com

Hedges makes a number of different wines with
their flagships being a group of blends. The
entry level red blend C.M.S. is a blend of
Cabernet Sauvignon (the “C”), Merlot (the “M”),
and Syrah (the “S”). [entry for March 1, 2010
entitled “Between the – Hedges 2008 CMS, 2006
Three Vineyards – Columbia Valley, Red Mountain”]
Yak Yak Wine, www.yakyakwine.com

Washington State has been surprising people for a
long time when it comes to producing great wines
and the CMS by Hedges is certainly one of those
great bottles turning heads around the world. …
The CMS stands for Cabernet Sauvignon, Merlot,
Syrah – the major grapes used to make this soon
to be classic wine of the Pacific Northwest.
[review on Gremolata website for “CMS Columbia
Valley by Hedges 2005”]
http://gemolata.com
Cancellation No. 92051369
18

… Hedges winemaker Pete Hedges has perfected the
art of blending several grapes into tasty red and
white wines.
Both are labeled CMS for the grapes they contain.
The red is a blend of Cabernet Sauvignon, Merlot
and Syrah, while the white is a blend of
Chardonnay, Marsanne and Sauvignon Blanc.
[May 20, 2009 article entitled “Woehler on Wine:
Hedges and Fidelitas,” printed on the website
Wine Press Northwest]
www.winepressnw.com

… CMS stands for the blend of grapes in this
delicious wine, 39% Cabernet Sauvignon, 45%
Merlot, and 16% Syrah. [webpage for The Wine
Country, featuring “Hedges 2009 CMS Columbia
Valley”]
www.thewinecountry.com

… “CMS” Red stands for 46% Cabernet, 48% Merlot
and 6% Syrah. [description of “Hedges ‘CMS’ Red
2009 (Columbia Valley, Washington)” appearing on
website Drink Up NY]
www.drinkupny.com

… Speaking of the logo, CMS isn’t something
random, it’s got meaning. CMS stands for
Cabernet Sauvignon, Merlot and Syrah. Their
white CMS is another blend that I’ll have to
review later. [article entitled “Wine Review –
CMS Red”]
http://babblingaboutnothing.com

As these articles show, “cabernet sauvignon,” “merlot”
and “syrah” are generic names for the varietals that are
used in the wine. However, the fact that a term is derived
from individual generic words or even a listing of generic
words does not necessarily make the derived term generic.
Nor does the fact that one can figure out the derivation of
Cancellation No. 92051369
19
a term by seeing it in the context of the generic words
make that term generic.
We have carefully reviewed all of the evidence of
record, as well as all of the parties’ arguments, and we
find that petitioner has not proved that the consuming
public views CMS as a generic term for wine. See Modern
Optics, 234 F.2d 504, 110 USPQ at 295. Accordingly, the
petition for cancellation on the ground of genericness is
dismissed.
Mere Descriptiveness
In addition to its claim that respondent’s mark is
generic, petitioner seeks cancellation of the mark on the
ground of mere descriptiveness. Petitioner has limited its
arguments to asserting that the mark would be recognized as
an abbreviation for “cabernet merlot syrah”; it makes no
claim that the mark is descriptive of white wine because it
would be recognized as an abbreviation for “chardonnay
marsanne sauvignon blanc.”
The Federal Circuit set forth the principles for
determining whether a mark is merely descriptive (and
therefore not inherently distinctive) or suggestive:
Whether a given mark is suggestive or merely
descriptive depends on whether the mark
“immediately conveys … knowledge of the
ingredients, qualities, or characteristics of the
goods … with which it is used”, or whether
Cancellation No. 92051369
20
“imagination, thought, or perception is required
to reach a conclusion on the nature of the
goods.”

In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987)
(ellipses in original, internal citations omitted).
The evidence, as discussed above, shows that, for the
wines respondent currently sells, “cabernet sauvignon,”
“merlot” and “syrah” are the names of the grape varietals
contained in its red wine, and that the names “chardonnay,”
“marsanne” and “sauvignon blanc” are the names of the
varietals contained in its white wine. As such, each of
the terms describes an ingredient of the wine. However,
CMS can be considered merely descriptive of the wines only
if consumers would immediately understand, upon seeing the
mark CMS in connection with wine, that the wine contains
the particular set of three varietals. Again, petitioner
has not argued that CMS is descriptive of white wine, so we
confine our discussion to whether or not CMS is merely
descriptive of red wine.10
Petitioner asserts that CMS is derived from the first
letters of the descriptive words cabernet, merlot and
syrah, and argues that the relevant consumers would
understand that CMS, used in connection with wine, is an

10 Indeed, even in its petition for cancellation, petitioner has
asserted only that CMS is descriptive of the ingredients
cabernet, merlot and syrah contained in respondent’s wine.
Cancellation No. 92051369
21
abbreviation of cabernet, merlot and syrah. We agree, as
noted above, that CMS is derived from the first letters of
the varietal names. But simply because a trademark is
derived from the first letters of descriptive or even
generic words does not mean that the trademark would be
recognized as an abbreviation for these words. See, e.g.,
Modern Optics, 234 F.2d 504, 110 USPQ at 295. Certainly
there is no evidence that “C” is a recognized abbreviation
for “cabernet sauvignon” or that “M” is a recognized
abbreviation for “merlot” or that “S” is a recognized
abbreviation for “syrah.” In fact, petitioner’s own
evidence, excerpts from Wine Enthusiast Magazine, shows
that there are several varietals that begin with the
letters “C” and “M” and “S,” for example, cabernet franc,
malbec, mourvedre and sangiovese.
As for whether CMS would be recognized as an
abbreviation for this combination of varietals, the
articles, etc. excerpted above that explain how the mark is
derived, or what CMS means, actually show that the mark CMS
for wine does not directly and immediately convey the
meaning of the three varietals. The authors of the various
articles and reviews and sales information believed that
they needed to spell out the connection between CMS and the
names of the varietals that are contained in the wine, and
Cancellation No. 92051369
22
that readers would not immediately understand that the mark
CMS has the meaning of cabernet sauvignon, merlot, syrah.
Although some consumers may be able to figure out that the
mark was derived from the initials of the varietals
comprising the wine, the process of recognizing that
derivation requires some thought, and that is the very
essence of a suggestive mark.
Petitioner has pointed to the following testimony by
Mr. Hedges, at pages 18-19 of his deposition transcript,
asserting that this is an admission “that the public in
fact understands CMS primarily to refer to the goods, and
not the source of the goods,” brief, p. 21:
Q. Do you know if the public has any
understanding as to what CMS means?

A. I think definitely locally they do,
certainly, because we’ve been in the market for a
long time. Perhaps not quite as good an
understanding around the country, but I believe
they think it’s a brand that contains Cabernet
Sauvignon, Merlot and Syrah.

We do not view this testimony as an admission that the
initials CMS have become so generally understood as
representing the descriptive words “cabernet,” “merlot” and
“syrah” that the consuming public accepts CMS as
substantially synonymous with those varietals. See Modern
Optics, 234 F.2d 504, 110 USPQ at 295. Rather, we view Mr.
Hedges’ testimony as saying that people regard CMS as a
Cancellation No. 92051369
23
trademark for a wine that contains cabernet sauvignon,
merlot and syrah, and not that CMS tells people directly
that the wine contains these varietals. And that the brand
is more strongly recognized locally, where the wine has
been more heavily marketed, than in other areas of the
country.
Having carefully considered all of the evidence, we
find that petitioner has failed to prove that CMS is merely
descriptive for wine, and the petition for cancellation on
this ground is dismissed.
Acquired Distinctiveness
In view of our finding that respondent’s mark is not
merely descriptive but inherently distinctive, we need not
consider the claim that the mark had not acquired
distinctiveness at the time of registration.
Decision
The petition for cancellation is dismissed.