Is FAST DRINK Merely Descriptive?

In a 2021 nonprecedential case, the Trademark Trial and Appeal Board reversed the §2(e)(1) refusal to register the mark FAST DRINK for “Nutritional meal replacement drinks adapted for medical use; herbal teas for medical treatments,” and found that the mark was not merely descriptive of its cited goods.

To begin, a mark is merely descriptive if it “consist[s] merely of words descriptive of the qualities, ingredients or characteristics of the goods or services related to the mark.” In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004). Further, when a mark consists of multiple terms, it does not automatically create a nondescriptive word or phrase. In re Associated Theater Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). If each term retains its merely descriptive significance, in relation to the cited goods or services, the combination of the terms results in a mark that is still overall merely descriptive. Oppedahl, 71 USPQ2d at 1371. However, a mark that is comprised of merely descriptive components, which ultimately create a nondescriptive meaning, or a meaning insignificant to the cited goods or services, the mark may still be registrable. Further, a mark may be considered suggestive, as opposed to merely descriptive, if when encountered with the cited goods, requires a certain degree of reasoning, imagination, thought or perception in order to determine the attributes of the cited goods. See, e.g., In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978).

The Examining Attorney argued that the mark FAST DRINK was merely descriptive of a significant feature of the cited goods, specifically that the goods were “for use during periods when a consumer either completely abstains from food, instead consuming herbal teas or meal replacement drinks such as those described in applicant’s application or when a consumer greatly reduces the food for a certain period, instead consuming herbal teas or meal replacement drinks.” The Examining Attorney used dictionary definitions of the terms “fast” and “drink” to support the argument and pointed specifically to the following definitions: fast – “[t]he act or practice of abstaining from or eating very little food” and “drink” – “liquid suitable for swallowing especially to quench thirst or to provide nourishment or refreshment.”

The Board agreed that the terms retained their individual meaning, but it maintained that there was a lack of evidence to support that the term FAST DRINK, as a unitary mark, referred to a drink that was “consumed during, or in preparation for, a fast.” However, the Board stated that even if consumers were to perceive the mark in that manner, there were other ways to perceive it as well, given that the term “fast” is also defined as “acting, moving, or capable of acting or moving quickly; swift,” and “accomplished in relatively little time.” Because of these other viable definitions, the Board believed that consumers could also perceive FAST DRINK as a product that could be quickly prepared, used as quick snack or an on-the-go meal replacement, which could be used during fasting. The Board noted that precedent ruled that “marks which create a double entendre or double meaning are not merely descriptive.” See., e.g., In re Tea and Sympathy Inc., 88 USPQ2d 1062, 1064 (TTAB 2008).

Ultimately, the Board stated that since it found FAST DRINK equally as likely to be perceived as indicating a drink that could be used while fasting, a drink that could be made quickly or a drink that could be consumed quickly or as an on-the-go meal replacement, the mark was “at most, suggestive of the identified goods.” As such, the Board concluded that the mark FAST DRINK was a double entendre in connection with the listed goods and reversed the §2(e)(1) refusal to register.

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