Infused Cigars

Mailed: December 31, 2009UNITED STATES PATENT AND TRADEMARK OFFICE________Trademark Trial and Appeal Board________In re Jonathan Drew, Inc. dba Drew Estate________Serial No. 78979742_______John W. Goldschmidt, Jr. of Dilworth Paxson LLP for JonathanDrew, Inc. dba Drew Estate.Priscilla Milton, Trademark Examining Attorney, Law Office 110(Chris A.F. Pedersen, Managing Attorney)._______Before Holtzman,

Bergsman and Ritchie

,

Administrative TrademarkJudges.Opinion by Holtzman, Administrative Trademark Judge:Jonathan Drew, Inc. dba Drew Estate (applicant) filed anapplication to register on the Principal Register the markINFUSED CIGARS in standard character form for goods ultimatelyidentified as "cigars" in Class 34.

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Serial No. 78979742 filed July 27, 2005 based on an allegation of abona fide intent to use the mark in commerce. The application includesa claim of ownership of Registration No. 3080344 on the PrincipalRegister for the mark INFUSION for "cigars." An amendment to allegeuse asserting a date of first use and first use in commerce of November30, 2007 was filed on December 4, 2007 and accepted by the examiningattorney.

THIS OPINION ISNOT A PRECEDENT OFTHE TTAB

Serial No. 78979742

2The trademark examining attorney refused registration on theground that the mark is merely descriptive of the goods underSection 2(e)(1) of the Trademark Act. When applicant, inresponse to the refusal, filed an alternative amendment to theSupplemental Register, the examining attorney refusedregistration under Section 23 of the Act on the ground that themark is generic for the goods and incapable of distinguishingapplicant's goods from those of others.The refusals were ultimately made final, and applicantappealed. Both applicant and the examining attorney have filedbriefs.We turn first to the question of genericness. The test fordetermining whether a mark is generic involves a two-stepinquiry. First, what is the genus (category or class) of goodsor services at issue? Second, is the term sought to beregistered understood by the relevant public primarily to referto that genus (category or class) of goods or services? See Inre Reed Elsevier Properties Inc., 482 F.3d 1376, 82 USPQ2d 1378,1380 (Fed. Cir. 2007) (quoting H. Marvin Ginn Corporation v.International Association of Fire Chiefs, Inc., 782 F.2d 987, 228USPQ 528, 530 (Fed. Cir. 1986)).The Office has the burden of proving the genericness of aterm by "clear evidence" of the public's understanding thereof.

Serial No. 78979742

3In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567,4 USPQ2d 1141, 1143 (Fed. Cir. 1987).The genus or category of goods in this case is the wordingused in the identification, "cigars." The relevant public forapplicant's cigars includes cigar "aficionados" and enthusiastsas well as ordinary members of the general public.We turn then to the meaning of INFUSED CIGARS to therelevant public. Evidence of the relevant public's understandingof a term may be obtained from any competent source includingconsumer surveys, dictionary definitions, newspapers and otherpublications. See Reed Elsevier Properties Inc., supra at 1380.Third-party websites are competent sources to show what therelevant public would understand a term to mean. Id. at 1381.The examining attorney has submitted dictionary definitionsof the word "infused" including the following:1. To put into or introduce as if by pouring:

infused new vigor into the movement

2. To fill or cause to be filled with something:

infused them with a love of the land

3. To flavor or scent (a liquid) by steepingingredients in it:

"He would infuse . . . vegetableoil with the pungent taste of scallions"

(NinaSimonds)

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The American Heritage® Dictionary of the EnglishLanguage

(Fourth Edition 2009).3.

intransitive verb

steep something in liquid: tosoak tea or herbs in liquid to extract the flavor oranother property, or be soaked in this way.

Encarta World English Dictionary