Riverhall Capital LLC

Trademark Trial and Appeal Board

Jun 2, 2017

No. 86398809 (T.T.A.B. Jun. 2, 2017)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: June 2, 2017
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Riverhall Capital LLC
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Serial Nos. 86398809 and 86398831
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Jason A. Bernstein of Barnes & Thornburg LLP
for Riverhall Capital LLC.

Lyndsey Kuykendall, Trademark Examining Attorney, Law Office 124
(Lydia Belzer, Managing Attorney).
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Before Cataldo, Adlin and Hightower, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Riverhall Capital LLC (“Applicant”) seeks Principal Register registrations for the
proposed mark RAYZYN, in standard characters (the “‘809 Application”) and the form
shown below

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(the “‘831 Application”) for, inter alia, “wine; fortified wine; port; sparkling wine;
champagne” in International Class 33. Applicant also seeks to register the design
mark, but not the standard character mark, for, inter alia, “fruit juice” in
International Class 32 and “dried fruit; dried fruit mix; pickle juice; bean dips, jellies,
jam, fruit preserves, and marmalade; yogurt; fruit based snack foods” in International
Class 29.1 The Examining Attorney refused registration of both forms of the mark on
the ground that the term RAYZYN is merely descriptive of Applicant’s Class 29, 32
and 33 goods under Section 2(e)(1) of the Trademark Act. After the refusals became
final, Applicant appealed and filed requests for reconsideration which were denied.
Applicant and the Examining Attorney filed briefs.
Appeals Consolidated
These appeals involve common questions of law and fact and the records are
similar. Accordingly, we consolidate and decide both appeals in this single decision.
See In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009); TBMP § 1214 (2015).
Analysis
A mark is deemed to be merely descriptive, within the meaning of Section 2(e)(1),
if it immediately conveys knowledge of a quality, feature, function, characteristic or
purpose of the goods for which it is used. In re Bayer Aktiengesellschaft, 488 F.3d 960,

1 The applications, each filed on September 18, 2014 based on an alleged intent to use the
marks in commerce under Section 1(b) of the Act, also identify “chewing gum” in
International Class 30, but the Examining Attorney has not refused either application based
on the Class 30 goods. The ‘831 Application includes this description of Applicant’s design
mark: “The mark consists of the word RAYZYN with the RAY portion of the word appearing
in block letters with the R slightly larger than the AY and the ZYN portion of the word
appearing in script letters with the Z larger than the YN. Behind the word RAYZYN appears
a broken circle.”
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82 USPQ2d 1828, 1831 (Fed. Cir. 2007) (quoting In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987)); and In re Abcor Development, 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978). A mark need not immediately convey an idea of each
and every specific feature of the goods in order to be considered merely descriptive;
rather, it is sufficient that the mark describes one significant attribute, function or
property of the goods. In re Chamber of Commerce of the United States of America,
675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re H.U.D.D.L.E., 216
USPQ 358 (TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973).
The Commercial Impression of RAYZYN
While RAYZYN is not a word, and there is no correct pronunciation of trademarks,
the proposed mark will obviously be pronounced the same as, or very similarly to, the
word “raisin.” Applicant concedes as much. Office Action responses of July 6, 2015 at
5 (“Applicant acknowledges that consumers are likely to pronounce RAYZYN
similarly to the dried fruit ‘raisin.’”). The dictionary evidence of record reveals only
one definition of “raisin” as a noun, which is “a grape of any of several varieties that
has been dried in the sun or by artificial heat.” Office Action of January 6, 2015 at
28.2
Because Applicant’s mark is a “phonetic spelling” of “raisin,” its Class 29 and 32
goods have an obvious relationship to raisins (as discussed more fully below), and
there is no evidence that the term has any other meaning in the context of Applicant’s
goods or otherwise, consumers will perceive the proposed mark as a reference to

2 http://www.merriam-webster.com/dictionary/raisin.
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raisins. Standard Paint Co. v. Trinidad Asphalt Co., 220 U.S. 446, 455 (1911) (“The
word, therefore, is descriptive, not indicative of the origin or the ownership of the
goods; and, being of that quality, we cannot admit that it loses such quality and
becomes arbitrary by being misspelled. Bad orthography has not yet become so rare
or so easily detected as to make a word the arbitrary sign of something else than its
conventional meaning ….”); In re Hercules Fasteners, Inc., 203 F.2d 753, 97 USPQ
355, 358 (CCPA 1953) (“We are of the opinion that ‘FASTIE’ is merely a phonetic
spelling of ‘fast tie’ and that it connotes that which unites or joins quickly, ‘tie’ being
used according to its broad meaning.”); Andrew J. McPartland, Inc. v. Montgomery
Ward & Co., 164 F.2d 603, 76 USPQ 97, 99 (CCPA 1947) (“It is further argued by
counsel for appellee, and so held by the decisions of the Patent Office tribunals, and
properly so, we think, that the term ‘KWIXTART’ is but a phonetic spelling of the
term ‘quick start’ and was intended to describe merely that appellant’s battery would
start a motor or engine quickly.”); In re Carlson, 91 USPQ2d 1198, 1200 (TTAB 2009)
(“In general, a mere misspelling of a word is not sufficient to change a merely
descriptive term into an inherently distinctive trademark.”). We thus consider the
evidence that “raisin” is merely descriptive of Applicant’s Class 29, 32 and 33 goods.
Fruit Products and Fruit Juice in International Classes 29 and 32
Because Applicant’s Class 29 goods include “dried fruit,” and the dictionary
definition of record defines “raisin” as a type of dried fruit, raisins are encompassed
by Applicant’s identification. Therefore, RAYZYN is descriptive, if not generic, for
Applicant’s Class 29 goods. See generally In re Taylor & Francis (Publishers) Inc., 55
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USPQ2d 1213, 1215 (TTAB 2000) (PSYCHOLOGY PRESS & Design found merely
descriptive of nonfiction books in the field of psychology, in part because the
applicant’s “identification of goods expressly states that the series of non-fiction books
upon which applicant uses its mark are ‘in the field of psychology.’ The word
PSYCHOLOGY therefore is merely descriptive of the subject matter of applicant’s
books, as identified in the application ….”). The term also immediately describes a
potential ingredient in the “dried fruit mix,” “jellies,” “jams,” “fruit preserves” and
“fruit based snack foods” identified among Applicant’s Class 29 goods. Similarly, the
term immediately describes a potential ingredient in Applicant’s Class 32 goods,
“fruit juice.” The evidence leaves no doubt that raisins are an ingredient in some of
Applicant’s Class 29 and 32 products, including “fruit based snack foods”:

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Office Actions of August 19, 2015 and April 3, 2016 and Denial of Request for
Reconsideration of November 3, 2016.
Where, as here, a proposed mark identifies a product’s ingredient(s), it is merely
descriptive. In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1576 (Fed. Cir. 2015)
(“The Board found that the relevant consumer, knowing that the goods are
supplements containing nopal cactus juice, would understand the mark NOPALEA
to convey information that the goods contain ingredients from the Nopalea cactus
…Substantial evidence supports the Board’s findings, and its conclusion that
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‘nopalea’ is merely descriptive of TriVita’s goods.”). Accordingly, the mark in the ‘831
Application is merely descriptive of the Class 29 and 32 goods identified therein.3
Wine in International Class 33
The Examining Attorney’s evidence that “raisin” is merely descriptive of wine is
much more limited:

3 Although the ‘831 Application describes the design element of that mark as nothing more
than a “broken circle,” Applicant claims in its Appeal Brief that the letters ZYN “plays on
‘zin’ being a commonly known shortening of the zinfandel grape varietal” and that “[t]he
broken circle evokes the image of a stain left by the base of a wine glass … The stylized Z is
reminiscent of a glass.” 10 TTABVue 8 (in ‘831 Application). We are not persuaded, not only
because this smacks of a convenient, after the fact rationalization, but because, as the
Examining Attorney points out, consumers would likely not perceive the broken circle, “Z” or
ZYN this way. See In re Sadoru Group, Ltd., 105 USPQ2d 1484, 1486 (TTAB 2012) (“A display
of descriptive or otherwise unregistrable matter is not registrable on the Principal Register
unless the design features of the asserted mark create an impression on the purchasers
separate and apart from the impression made by the words themselves, or if it can be shown
by evidence that the particular display which the applicant has adopted has acquired
distinctiveness.”). Circles are a “common design element,” and therefore not particularly
distinctive. See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1138 (TTAB 2015);
National Rural Electric Cooperative Ass’n v. Suzlon Wind Energy Corp., 78 USPQ2d 1881,
1883 (TTAB 2006), aff’d, 214 Fed. Appx. 987 (Fed. Cir. 2007) (“The circle design is hardly
particularly distinctive in trademark designs.”); In re Anton/Bauer, Inc., 7 USPQ2d 1380,
1381 (TTAB 1988) (“common geometric shapes such as circles, ovals, triangles, diamonds and
stars, when used as backgrounds for the display of word or letter marks, are not regarded as
trademarks for the goods to which they are applied absent evidence of distinctiveness of the
design alone”).
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Office Action of April 3, 2016 and Denial of Request for Reconsideration of November
3, 2016.
While we might very well reach a different conclusion on a different record, such
as could be presented in an inter partes proceeding, this “thin” evidence is not enough
to persuade us that RAYZYN is merely descriptive of wine. The Wikipedia entry
indicates that “raisin wine” is also known as “straw wine,” and there is no evidence
that consumers encountering “straw wine” would know that it is made from raisins.
Moreover, according to the entry, straw wine production methods are “labour
intensive” and “low yield,” such that the wine is expensive, suggesting that there may
not be widespread consumer exposure to this type of apparently “niche” wine. In fact,
the section of the entry concerning the United States indicates that some California
wineries, one of which is described as a “cult winery,” are merely “experimenting”
with straw wine, while “[i]n Texas it was illegal to make wine from dried grapes until
1999.” Similarly, the article from the “happyhomemaker88.com” website is about
“homemade” raisin wine, which is apparently used by a single cook at home, as
opposed to mass market or large yield wine. Finally, despite the name, there is no
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indication that the “Raisins Gaulois” wine depicted in the printout from
“astorwines.com” is in fact made from raisins as opposed to grapes. While the “staff
pick notes” indicate that the wine “is full of raisins, dried cranberry and red currant
fruit and lively acidity,” this appears at least as likely to be a wine “tasting note,”
describing the wine’s flavors,4 as a statement of its actual ingredients.
In short, this limited evidence is not sufficient to establish that a meaningful
number of United States consumers are aware that some wine is made from raisins,
and therefore we cannot find that consumers would understand RAYZYN to describe
raisin wine or its ingredients.5 In fact, because it is clear from the record that most
wine is made from grapes, RAYZYN is somewhat incongruous, and would require
those familiar with “normal” grape wine to take a “mental leap” to connect the term
RAYZYN with the product wine. In contrast to the evidence regarding Applicant’s
Class 29 and 32 goods, which establishes that raisins are the goods themselves or
common ingredients of the goods, and thus that consumers would perceive RAYZYN
as descriptive, the evidence regarding Applicant’s Class 33 goods is too meager to
establish that Applicant’s mark is descriptive. Accordingly, we cannot find on this
record that RAYZYN is merely descriptive of Applicant’s Class 33 goods.

4 A single tasting note is not sufficient for us to find that “raisin” or RAYZYN immediately
describes a wine’s flavor.
5 In fact, the Examining Attorney’s evidence appears to illustrate little more than “the
thoroughness with which NEXIS [and the Internet] can regurgitate a [term] casually
mentioned in the news” or on the Internet. In re Merrill Lynch. Pierce, Fenner, and Smith
Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 n.1 (quoting In re Societe Generale Des Eaux
Minerales De Vittel S.A. 824 F.2d 957, 3 USPQ2d 1450, 1451 (Fed. Cir. 1987)).

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Conclusion
The evidence leaves no doubt that RAYZYN merely describes Applicant’s Class
29 and 32 goods, or the ingredients thereof, but is insufficient for us to find that it is
merely descriptive of Applicant’s Class 33 goods.

Decision: The descriptiveness refusals to register the marks in the ‘809 and ‘831
Applications for Applicant’s Class 33 goods under Section 2(e)(1) of the Trademark
Act are both reversed. The descriptiveness refusal to register the design mark in the
‘831 Application for Applicant’s Class 29 and 32 goods is affirmed.