WYHA? TTAB FInds “APPLE SUGAR” Merely Descriptive of Sweeteners Including Fruit Skins

The Board affirmed a Section 2(e)(1) refusal to register APPLE SUGAR, finding the proposed mark to be merely descriptive of “natural sweetener, sugar substitutes, and flavored sweetener including fruit skins and providing a low glycemic index.” Applicant conceded that, inter alia, some of its goods are sweeteners that may contain dried apple peels and some could contain sugar in combination with dried fruit. Would you have appealed? In re Apple Sugar, LLC, Serial No. 87330331 (December 31, 2019) [not precedential] (Opinion by Judge Robert H. Coggins).

Examining Attorney Edward Fennessy maintained that the term “apple sugar” is widely used to refer to a type of sweetener made of apples or apple byproducts, as shown by multiple websites. Even if some of Applicant’s goods may not be made from apples, the Examining Attorney asserted, that does not diminish the descriptiveness of APPLE SUGAR as it applies to the goods that do include sweetener made from apples.

Applicant claimed that consumers “would not immediately perceive that the sweeteners are (1) natural, (2) include fruit skins, AND (3) are low glycemic;” therefore, the “essential features of the goods are not ‘merely described’ by the mark.”

The Board found that, by applicant’s own admission, “its goods may contain apples and sugar; therefore, APPLE and SUGAR are individually descriptive of the identified goods.” As for the combined term, multiple website examples show “apple sugar” referring to a type of sweetener made using apples alone or apples and sugar.

The Board concluded that the commercial impression of the proposed mark APPLE SUGAR is merely descriptive when used on natural sweeteners, sugar substitutes, and flavored sweeteners including fruit skins and providing a low glycemic index. “Although none of the webpages appear to directly mention the low glycemic-index properties of apple- or other fruit-sugars, some nonetheless contemplate the health benefits of apple sugar over regular sugar alone.”

The primary purposes for refusing registration of a merely descriptive mark are “(1) to prevent the owner of a mark from inhibiting competition in the sale of particular goods; and (2) to maintain freedom of the public to use the language involved, thus avoiding the possibility of harassing infringement suits by the registrant against others who use the mark when advertising or describing their own products.” Abcor Dev., 200 USPQ 215 at 217. It would be difficult for competitors to describe the ingredients and characteristics of their own similar products, (i.e., that their natural sweeteners, sugar substitutes, and flavored sweeteners including fruit skins are made from apples alone or apples and sugar) if applicant were allowed to register APPLE SUGAR.

The Board therefore found that APPLE SUGAR is merely descriptive of applicant’s goods, and it affirmed the refusal to register.

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TTABlog comment: Will applicant appeal, seeking a second bite of the apple?