Turning to the genericness issue, the Board as usual found the genus to be appropriately described by the identification of goods in the application, rejecting applicant's proposed "plant-based chocolate." Applicant feebly argued that the relevant consumers are English speakers in Midwest supermarkets ("from Pittsburgh to Fargo), but these restrictions did not appear in the application at issue.Īs to consumer perception, the Board noted that in applicant's specimen of use and other materials, there was no use of D’AVOCADO "or other indicia to suggest the purchasing public would perceive it as a common name for the goods rather than a mark." Nothing in the USPTO's evidence showed use of the term in connection with the identified goods. whether the term 'd’avocado' translates to 'avocado' or whether the French language webpages simply adopt the English word 'avocado.'" Therefore, the Board found the translation requirement inappropriate.
The Board found the USPTO's evidence to be ambiguous: "it is not clear. Applicant maintained D’AVOCADO is "a compound mark comprising of the English terms ‘D’ and ‘AVOCADO’ joined by an apostrophe," so that no translation is required. The examining attorney required a translation of D'AVOCADO, contending that many French speakers use the term as a generic identifier for avocado and products made of avocado.
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