By Taylor Foss
How does a nice frosty Blueberry Muffin sound on a hot summer day? No, not the baked variety, but a blueberry muffin-flavored beer brought to you by the folks at Humboldt Street Collective LLC, dba Great Notion Brewing and Barrel House. If such a brew sounds appealing, that’s great, but you won’t be finding it under the BLUEBERRY MUFFIN trademark.
That’s because the USPTO’s Trademark Trial and Appeals Board (TTAB) refused to register the word mark BLUEBERRY MUFFIN, which Great Notion Brewing recently applied for. The TTAB determined that Blueberry Muffin is a generic term that should be available to describe any beer having a blueberry muffin-like flavor, and not just Great Notion Brewing’s product. But the decision is a questionable one.
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What’s the reasoning?
Arbitrary trademarks are typically among the strongest types of marks because they’re distinctive and have no connection to their underlying goods or services. For example, Apple, which conjures up images of fruit and pie, is quite distinctive in the context of computers, making APPLE COMPUTERS an arbitrary trademark. That being said, it would appear, at first glance, that the name Blueberry Muffin should have been considered arbitrary for purposes of Great Notion Brewing’s trademark registration application. Indeed, suds and breakfast pastries seem to be on the opposite end of the culinary spectrum. Clearly, the TTAB felt otherwise.
The Board’s decision was based on findings that flavored beers are growing in popularity, and that consumers might refer to blueberry muffin-flavored brew generically — and regardless of source — as “blueberry muffin.” Consequently, the TTAB made the draconic ruling that the mark BLUEBERRY MUFFIN was “incapable of distinguishing Applicant’s goods.”
The TTAB wasn’t all wrong — fruity brews are trending, and beer does share some flavor profiles with bread products and baked goods, particularly varieties with high malt or yeast profiles. But in this writer’s view, the TTAB seems to have jumped the gun on deciding that BLUEBERRY MUFFIN is an already generic reference to some specific types of fruity, malty ales.
Simply stated, blueberry muffin-flavored beers are not presently ubiquitous. As such, the mark BLUEBERRY MUFFIN is not, in fact, as generic as — say — a ZIPPER or an ESCALATOR (both former trademarks). Sure, Blueberry Muffin could at some point in the future become a commonplace reference for a blueberry muffin-flavored cold one (assuming the trend toward fruit-forward beer has any staying power). But for the TTAB, at this point in time, to tether its rejection of Great Notion Brewing’s application upon the budding popularity of flavored ales seems rather far-reaching, especially when the tastes and trends in the craft brew industry are constantly changing.
Bottom line: in a case like this, the TTAB would have been better off provisionally approving Great Notion Brewing’s application (read: allowing registration on the Supplemental Register as a merely descriptive mark). In so doing, the Board could have noted any concerns about the mark’s future “generic-ness,” and contemplated other procedures (such as cancellation or litigation) to be leveraged if, and when, necessary.
Taylor C. Foss is an intellectual property litigators, alcohol attorney, craft brew enthusiast and senior associate at Michelman & Robinson, LLP, a national law firm with offices in Los Angeles, Orange County (California), San Francisco, Chicago and New York City.