New York Dairy Files Trademark Application for WINE ICE CREAM and Design

I have a lot of questions about this trademark application. Where can I get it? Does it contain wine (hint - yes)? Is it merely descriptive?

The answer to the first question appears to be Mercer's Dairy in Boonville, New York. On March 17, an entity doing business under that name filed this federal trademark application, an application for WINE ICE CREAM and Design, seen below. The application covers only "ice cream" in Class 30. According to the application, Mercer's Dairy has been selling ice cream under this mark since as least May 1, 2007.

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.