
According to Mercer's website, there are several flavors of wine ice cream, including Chocolate Cabernet (which I think is pictured in the applicant's specimen submitted with the trademark application and seen below), Cherry Merlot, Riesling, and Red Raspberry Chardonnay.
But is this mark merely descriptive of the underlying goods with which it is used, such that the Trademark Office will refuse registration under Section 2(e)(1) of the Lanham Act? The Trademark Office generally considers a mark to be merely descriptive if it "describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Merely descriptive designations cannot be registered on the Principal Register without a showing of acquired distinctiveness (i.e., proof that the mark has become distinctive as applied to the applicant's goods). See TMEP 1212.
Does a picture of a wine glass and the text WINE ICE CREAM merely describe "ice cream"? We'll find out what the examining attorney assigned this application thinks in approximately three months when this application is assigned to an attorney at the Trademark Office.
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