INTERNATIONAL CLASS 33

(alcoholic beverages, except beer)

 

GENERAL SCOPE OF CLASS 33:  Alcoholic beverages (except beers).

 

 

1.  SEARCHING

 

  a. 

RELATED INTERNATIONAL CLASSES

29

Food and beverages

30

Foods and beverages

31

Unprocessed foods

32

Beverages

5

Baby food, diet food, dietary food supplement

35

Grocery stores and delicatessens

43 (form-er 42)

Restaurants and catering services

 

                                               

  b.  USING COORDINATED CLASSES

           

            029[CC]:  yields 005, 030, 031, 032, 033, 035, 042, 043, A, B, 200

030[CC]:  yields 001, 005, 029, 031, 032, 033, 035, 042, 043, A, B, 200 (Usually, most useful to search)

            031[CC]:  yields 005, 029, 030, 035, 042, 043, 044, A, B, 200

            032[CC]:  yields 005, 029, 030, 031, 033, 035, 042, 043, A, B, 200

            033[CC]:  yields 005, 029, 030, 031, 032, 035, 042, 043, A, B, 200

 

 

  2.  IDENTIFICATION ISSUES

 

a.      CERTAIN GOODS ARE SPECIAL TO CLASS  33:

 

·        prepared alcoholic cocktail

·        alcoholic coffee-based beverages

·        alcoholic malt coolers and other brewed malt beverages

·        hard cider

·        herb liqueurs

·        alcoholic punch

           

 

  b.  CERTAIN GOODS ARE EXCLUDED FROM CLASS 33

 

·        non-alcoholic cocktail mixes – 32

·        coffee – 30

·        coffee flavored ale, beer or soft drinks – 32

·        malt liquor [beer or ale] – 32

·        sweet cider – 32

·        herb tea [for food purposes] – 30

·        herb tea [for medicinal purposes] – 5

·        non-alcoholic punch - 32

 

 

NOTE: Alcoholic beverages are in this class with the exception of beers, which are in IC 32.  Non-alcoholic drinks are generally in IC 32 and medicinal drinks are in IC 5.

 

Don’t use registered marks in id’s:

BLUSH

 

 

3. DESCRIPTIVE REFUSALS

 

Evidence

 

Two useful on-line resources for class 33 examination are:

            www.epicurious.com

            www.foodtv.com

            www.realbeer.com

 

           

SOME DESCRIPTIVE TERMS

 

Vineyard – for wine

Estate – for wine

Lite (light)

 

 

 

4. SPECIMEN ISSUES

 

Menus are acceptable where the mark is used to identify certain prepared alcoholic cocktails or wines.  See In re Marriott Corporation, 173 USPQ 799 (CCPA 1972), where “TEEN TWIST” was used on a menu to designate a ham, cheese and tomato sandwich.  However, please note In re Brown & Portillo Inc., 5 USPQ2d 1381 (TTAB 1987) and In re El Torito Restaurants Inc., 9 USPQ2d 2002 (TTAB 1988) in which a term used to identify a single menu item found not to function as a service mark to identify restaurant services.

 

A mark displayed on a truck with refrigeration is an acceptable use since the truck acts as a container for the goods and a photograph of the truck with that display serves as an acceptable specimen.  See In re E.A. Miller & Sons Packing Co., Inc., 225 USPQ 592 (TTAB 1985).

 

Displays associated with the goods are sometimes submitted.  These are usually acceptable if it is clear how such displays are used with the goods.  If there is doubt, an explanation should be required. 

 

5. OTHER REFUSAL/REQUIREMENTS

 

-         Configurations – There are many bottle configuration marks in this class.  See In re Mogen David Wine Corporation, 152 USPQ 593 (CCPA 1967) and In re McIlhenny Company, 126 USPQ 138 (CCPA 1960).

 

- Section 2(a) Refusals - TRIPS

 

Section 2(a) of the Trademark Act prohibits the registration of a designation which consists of or comprises "a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after [January 1, 1996]."  This provision was added by the Uruguay Round Agreements Act, implementing the Trade Related Intellectual Property (TRIPs) portions of the General Agreement on Tariffs and Trade (GATT).  It applies only to geographic indications that were first used in commerce on or after January 1, 1996, one year after the effective date of the legislation implementing GATT. 

 

The examining attorney must refuse registration under §2(a) of any geographical designation that was first used in commerce on or in connection with wines or spirits on or after January 1, 1996, if it identifies a place other than the origin of the goods.  Section 2(a) is an absolute bar to the registration of such geographical designations on both the Principal Register and the Supplemental Register.  Neither a disclaimer of the geographical designation nor a claim that it has acquired distinctiveness under §2(f) can obviate a §2(a) refusal if the mark consists of or comprises a geographical indication that identifies a place other than the origin of wines or spirits.  TMEP section 1203.04

 

American Viticultural Area (AVA)

The examining attorney must refuse registration under Sections 2(a), 2(e)(2) and/or 2(e)(3), as appropriate, of any geographical designation that names an American Viticultural Area (AVA) where grapes are produced to make wine if the goods listed in the application are wine or wine grapes.  The standard is the same as that used for other geographical designations, and supporting evidence can be obtained from the list maintained by the International Wine Institute at www.iwineinstitute.com/ava/avabyname.asp.  A refusal under Sections 2(a) and 2(e)(3) would normally be made if the goods do not come from the place named in the mark and such designation is found in the AVA list.  A refusal under Section 2(e)(2) would normally be made if the goods come from the place named in the mark and such designation is found in the AVA list.  While it may suffice to show that the designation is on the AVA list, it is recommended that the examining attorney attach additional goods/place evidence if possible.