Published: January 15, 2024
Read time: 3 mins
Sweetwater Brewing Company, LLC recently encountered a setback when their application to register the mark "DANK TANK" for their ale and beer products was rejected. The Trademark Examining Attorney argued that the term "DANK" was descriptive and should be disclaimed. This rejection was supported by the Trademark Trial and Appeal Board (TTAB), which stressed that "DANK" accurately described the characteristics of Sweetwater Brewing Company's goods and services.
Legal Grounds for Refusing Trademark Registration
The TTAB's discussion revolved around the legal grounds for refusing trademark registration due to a failure to comply with a required disclaimer. In determining whether a mark is merely descriptive, the TTAB emphasized the significance of considering the specific goods for which registration is sought. Various forms of evidence, including dictionaries, trade journals, and advertisements, were cited as sources to establish the descriptive nature of a term. While the TTAB acknowledged the general advice against dissecting a mark, the significance of each element could be assessed individually to evaluate the overall mark. In this case, the Examining Attorney presented compelling evidence from the Detroit Free Press and Urban Dictionary, illustrating that "DANK" described the characteristics of beer.
The Examining Attorney also provided evidence from third-party websites where "DANK" was commonly used to describe ales and beers. The term "Dank" was further explored in relation to beer, with multiple sources defining it as an adjective associated with hops. It was noted that "Dank" was frequently linked to marijuana and often used to describe both high-quality marijuana and intensely hoppy IPAs. Some sources even employed the term to specify beers with pronounced hoppy, resinous, or tropical flavors. The Examining Attorney argued that "Dank" was descriptive of ales and beers since it immediately conveyed the fruity/juicy or funky flavor and strong pungent, earthy aroma associated with such products. Conversely, the applicant asserted that "Dank" was suggestive, requiring consumers to use their imagination to determine the nature of the goods.
Legal Precedents in Distinguishing Descriptive and Suggestive Marks
In order to delineate between descriptive and suggestive marks, the case referenced relevant legal precedents. The court emphasized that alternative meanings of the term "Dank" were irrelevant to the issue of descriptiveness. It was argued that a term did not need to be included in a dictionary to be considered merely descriptive, and supporting cases were cited to strengthen this stance. Although the applicant attempted to draw a parallel to the case of Anheuser-Busch, Inc. v. Holt, the court highlighted substantial differences between the two cases. Ultimately, the case maintained that "Dank" was commonly used to describe specific flavors and aromas of ales and beers, solidifying its descriptive nature.
The applicant's assertion that "Dank Tank" should be recognized as a unitary mark was challenged, with the court outlining the criteria that must be met for a mark to be classified as such. The case presented arguments supported by relevant cases, aiming to establish that "Dank Tank" did not meet the requirements for unitary mark status.
While the applicant cited a non-precedential Board decision to support their position, the court refuted this claim, emphasizing that the decision lacked binding authority over the Board. Additionally, the court opposed the notion that "Dank Tank" constituted a double entendre, contending that the term "Dank" retained its descriptive significance when associated with the applicant's ale and beer.
Ruling and Conclusion
The case recognized that doubts concerning the descriptiveness of the term "Dank" should be resolved in favor of the applicant. Nevertheless, the examining attorney presented evidence suggesting that "Dank" was purely descriptive, thus shifting the burden onto the applicant to refute this claim. Unfortunately, the applicant's legal arguments and limited supporting evidence fell short of countering the assertion that "Dank" was indeed merely descriptive. As a result, the court affirmed the requirement for a disclaimer of the term "Dank." However, if the applicant complies with this demand and submits the necessary disclaimer within 30 days, the refusal to register the mark could be reversed.
