On August 16th, a brewing company in Georgia filed an application to register GOOD COLD BEER for "Beer" in Class 32 as a trademark with the U.S. Patent and Trademark Office. The brewing company filed the application on an intent-to-use basis, suggesting it is not currently using the phrase as a trademark but has a bona fide intention to do so in the near future. But will it obtain a registration on the Principal Register?
before, merely descriptive trademarks will be refused registration on the USPTO's Principal Register (which affords the most legal benefits) under Section 2(e)(1) of the Trademark Act unless and until the mark acquires distinctiveness (see Section 2(f) of the Trademark Act). Merely descriptive trademarks describe "an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). For example, in my blog post linked to above, the USPTO deemed the mark REMOTE DRUG TESTING to be merely descriptive of drug testing services.
In addition, the USPTO will refuse to register, on the Principal or Supplemental Registers, informational phrases or "common laudatory phrases or statements that would ordinarily be used in business or in the particular trade or industry." In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010); TMEP 1202.04(a). The USPTO deems this matter not registerable "because consumers would perceive it as imparting its ordinary meaning and not as serving to identify and distinguish the applicant’s goods or services from those of others and to indicate their source." TMEP 1202.04(a). For example, the term BEST BEER IN AMERICA was deemed "so highly laudatory and descriptive of the qualities of its product that the slogan does not and cannot function as a trademark." In re Boston Beer Co. L.P, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999).
Will GOOD COLD BEER suffer a similar fate? Will it be deemed merely descriptive and therefore appropriate only for registration on the Supplemental Register rather than the Principal? Will it be deemed so highly laudatory and descriptive that it must be refused registration completely? None of the above? We'll find out in approximately three months after this application is assigned to an examining attorney at the USPTO.
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