Application of Andes Candies Inc.

• Decision Date: 14 June 1973
• Docket Number: Pat. Appeal No. 9065.
• Citation: 478 F.2d 1264,178 USPQ 156
• Parties: Application of ANDES CANDIES INC.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

178 USPQ 156, 478 F.2d 1264 (1973)

Application of ANDES CANDIES INC.

Pat. Appeal No. 9065.

United States Court of Customs and Patent Appeals.

June 14, 1973.

E. Manning Giles, Chicago, Ill., atty. of record, for appellant. Pope, Ballard, Shepard & Fowle, Chicago, Ill., of counsel.

S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Jack E. Armore, Washington, D. C., of counsel.

Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Associate Judges, and ALMOND, Senior Judge.

MARKEY, Chief Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, abstracted at 171 USPQ 574 (1971) refusing registration of CREME DE MENTHE for "laminated chocolate mint candy squares." Applicant, relying on use since 1950 and other evidence, sought registration under Section 2(f) of the Trademark Act of 1946.¹ The tribunals below considered the mark a flavor designation and viewed the evidence as failing to establish a de jure secondary meaning under Sec. 2(f). We affirm.

Appellant's candies are thin wafers with a top layer of chocolate, a bottom layer of chocolate, and an intermediate layer of green-colored, peppermint-flavored soft candy. The ingredients are "chocolate, milk solids, sugar, fats, artificial coloring, peanut oil, true peppermint flavor." The candies do not contain any creme de menthe liqueur.

Appellant's mark is shown in large, distinct type in a separate line on the boxes in which its laminated chocolate mint candies are packaged. Its trade name or house mark, ANDES, also appears prominently on its boxes. Appellant also packages its CREME DE MENTHE candies for other candy companies. The trade names of those companies appear prominently on their boxes along with the same type of display of CREME DE MENTHE. Appellant made reproductions of specimen box tops of such other candy companies of record in the file of the application.

Appellant introduced a large number of letters requesting its product; the affidavit of its president wherein it is stated that annual sales of CREME DE MENTHE candies exceed $2,500,000, that appellant spent more than $25,000 per year in advertising and promotion of the candies, that its candies are sold through more than 1,400 distributors in 49 states of the United States and in the provinces of Quebec and Ontario, and that it also sells directly through mail order; an affidavit of the vice-president of The Chocolate House, Inc., a manufacturer and distributor of candies, who averred that he has been active in the candy industry since 1932, that in his judgment "Creme de Menthe" would not be the usual, ordinary or likely name for appellant's candy and that "Creme de Menthe" is not a usual or recognized flavor designation in the candy industry.

The examiner placed in the file a container for candy bearing the designation "Creme de Menthe" and distributed by Golden Apples Candy Co., of Southport, Conn.; pages from catalogues distributed by manufacturers of food flavors, two of which list "Creme de Menthe" as a flavor; a Swiss Colony catalogue page showing a candy product in the form of chocolate bottles filled with various liqueur flavorings, none of which was creme de menthe; appellant's listing in Candy Industry of its products as "creme de menthe wafers" and another firm's listing of "creme de licorice" flavored candy.

OPINION

The issue is not whether the mark is merely descriptive of the product, which it is not, but whether it so describes its flavor. A mark is "merely descriptive" under Sec. 2(e)(1) if it merely describes a characteristic (flavor) of the goods (candy). Roselux Chemical Co., Inc. v. Parsons Ammonia Co., Inc., 29 F.2d 855, 49 C.C.P.A. 931 (1962); In re Sun Oil Co., 426 F.2d 401, 57 C.C.P.A. 1147 (1970); In re Helena Rubinstein, Inc., 410 F.2d 438, 56 C.C.P.A. 1110 (1969). Clearly "peppermint" or "chocolate" would be incapable of designating origin of candy and would not therefore be registrable. The reason lies, of course, in the obvious reaction of purchasers upon presentation of the words.

As we said in In re Automatic Radio Mfg. Co., 404 F.2d 1391, 1396, 56 C.C.P.A. 817, 823 (1969):

It seems elementary that one must find out how people in the trade and the purchasers use the terms with respect to the involved goods in order to determine whether or not they are descriptive.

We think the only possible reaction of purchasers, upon being presented with CREME DE MENTHE chocolate wafers, is the expectation that the wafers will have a mint taste something like that of creme de menthe liqueur. Surely, the purchasers would not expect to find a cherry or rum or butterscotch flavor in the candies. Whether or not the public is aware of the dictionary definition of "creme de menthe" made of record by the examiner,² the words clearly connote a mint flavored liqueur. Of course the purchaser knows the product is a candy not a liqueur, but, as appellant admits, the average purchaser would "expect the candy to have a flavor similar" to that of creme de menthe liqueur.

Appellant argues that its mark only suggests a flavor similar to that of the liqueur. If that were so, registration would be proper. We think however that the mark demands that, and only that, flavor. Appellant's citations of cases requiring that the mark be the "common descriptive name" of...