198 F.3d 1370 (Fed. Cir. 1999), 99-1123, In re In Re The Boston Beer Co

Docket Nº:99-1123 (Serial No. 74/464,118)
Citation:198 F.3d 1370
Party Name:IN RE THE BOSTON BEER COMPANY LIMITED PARTNERSHIP
Case Date:December 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1370

198 F.3d 1370 (Fed. Cir. 1999)

IN RE THE BOSTON BEER COMPANY LIMITED PARTNERSHIP

99-1123 (Serial No. 74/464,118)

United States Court of Appeals, Federal Circuit

December 7, 1999

Appealed from: Patent & Trademark Office Trademark Trial and Appeal Board

Page 1371

Amy J. Benjamin, Darby & Darby, P.C., of New York, New York, argued for appellant. With her on the brief were Ethan Horwitz and Karin Segall.

Thomas J. Finn, Associate Solicitor, Office of the Solicitor, of Arlington, Virginia, argued for appellee. With him on the brief were Albin F. Drost, Acting Solicitor, Nancy C. Slutter, and David R. Nicholson, Associate Solicitors. Of counsel was John M. Whealan, Acting Deputy Solicitor.

Before MAYER, Chief Judge, MICHEL and LOURIE, Circuit Judges.

MAYER, Chief Judge.

The Boston Beer Company Limited Partnership ("Boston Beer") appeals from a decision of the U.S. Patent and Trademark Office Trademark Trial and Appeal Board affirming the final rejection of trademark application Serial No. 74/464,118 seeking to register "The Best Beer In America" on the principal register. See In re Boston Beer Co. Partnership, 47 USPQ2d 1914 (TTAB June 11, 1998). Because the board did not err in refusing to register the mark described in Boston Beer's application, we affirm.

Background

On November 30, 1993, the Boston Beer Company filed an application to register "The Best Beer In America" on the principal register for "beverages, namely beer and ale," in Class 32. Boston Beer claimed use since 1985 and asserted that the words sought to be registered have acquired distinctiveness under 15 U.S.C. § 1052(f). Boston Beer claimed secondary meaning based on annual advertising expenditures in excess of ten million dollars and annual sales under the mark of approximately eighty-five million dollars. Specifically, Boston Beer spent about two million dollars on promotions and promotional items which included the phrase "The Best Beer in America."

In support of its claims, Boston Beer submitted an affidavit of its founder and co-president, James Koch, asserting that

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the words sought to be registered had developed secondary meaning as a source-indicator for its goods by virtue of extensive promotion and sales of beer under the mark since June 1985. It also submitted an advertisement for a competitor's product, Rolling Rock Bock beer, which included an invitation to sample "the beer that bested 'The Best Beer in...

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