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TTAB Denies Registration of "AOP" for Wine
Practical Law Legal Update 9-535-3186 (Approx. 3 pages)
TTAB Denies Registration of "AOP" for Wine
by Practical Law Intellectual Property & Technology
| Published on 22 Jul 2013 • USA (National/Federal) |
The Trademark Trial and Appeal Board (TTAB) refused registration for the mark AOP for wine, citing the deceptiveness and deceptive misdescriptiveness of the applicant's use of this mark of quality and geographic origin and three other grounds.
The Trademark Trial and Appeal Board (TTAB) issued a precedential decision on July 12, 2013 in In re AOP LLC. The TTAB affirmed the examining attorney's refusal to register the applicant's application to register the mark AOP for wine on four different grounds under the Trademark Act:.
- Deceptiveness under Section 2(a), 15 U.S.C. § 1052(a).
- Deceptive misdescriptiveness, under Section 2(e)(1), 15 U.S.C. § 1052(e)(1).
- Mere descriptiveness, under Section 2(e)(1), 15 U.S.C. § 1052(e)(1).
The TTAB also refused registration because the applicant failed to adequately respond to or comply with the Trademark Office's requests for information concerning:
- Whether the applicant's wines bearing the AOP mark originate in Europe.
- Whether the applicant uses the mark AOP to indicates a certain type, grade or quality of its wines, such as the use of AOP in the EU to designate a standard of regional quality.
- Whether the appropriate European regulatory body has certified the applicant’s wines as meeting the AOP standard.
The TTAB ruled that the mark was deceptive under Section 2(a) under the three-element deceptivness test, finding that:
- The mark misdescribes the applicant's goods.
- Consumers would likely believe the misdescription.
- The misdescription would materially affect the potential purchasers' decision to buy the applicant's products.
Specifically, the TTAB ruled that the applicant's use of AOP was deceptive because:
- The mark AOP misdescribes the applicant's wines because, contrary to the applicant's use of this trademark, AOP is a designation used by member states of the European Union to designate the quality and geographic origin of wine.
- Consumers would likely believe the misdescription because U.S. consumers have been exposed to listings and descriptions of wine, including AOP.
- The misdescription was material to consumers' decision because wine consumers are interested in designations of quality and origin. Also, websites widely available to US consumers discusses the significance of the designation.
The mark was also deceptively misdescriptive and merely descriptive under Section 2(e)(1) because consumers would likely understand AOP as describing the wine's quality and geographic origin. If the wine were AOP-certified in the EU, the mark would be merely descriptive. If the wine were not certified, the mark would be deceptively misdescriptive since consumers would likely believe the misrepresentation.
The TTAB also rejected the mark for failing to function as a trademark. The TTAB reviewed the applicant's original specimen of us and its substitute specimen, finding both failed because:
- In the original specimen, the mark appears among other informational material like "Product of the USA" and "% ALC/VOL."
- In the substitute specimen, the mark appears far from the name of the wine and instead near other informational matter.
The TTAB's last ground for rejection was the applicant's evasive responses to and other failures to comply with the examining attorney's request for further information about the quality and geographic origin of the wines bearing the applicant's AOP mark (see TMEP § 814).
Court document: