Finding that Applicant's specimens of use did not show a direct association of the proposed mark with the recited services, the Board affirmed a refusal to register PVPW for "water supplying, namely, delivery of bottled water to homes, offices and stores." The purported mark is molded into the bottom of applicant's water bottles (see photo below right) and there was no evidence that purchasers would encounter the mark and perceive it as a source indicator. In re Peak Valley Pure Water, LLC, Serial No. 87686193 (May 10, 2022) [not precedential] (Opinion by Judge Elizabeth A. Dunn).
Examining Attorney Ingrid C. Eulin contended that the letters molded on the bottles would be visible to the consumers only "after purchase, delivery and installation of the purchased bottled water in the water dispensing unit." She noted that the mark PEAK VALLEY and not PVPW appears on applicant's website, and also that entities in the water delivery field do not typically employ terms molded on the bottom of water bottles as source indicators.
Applicant argued that because the bottles are used to deliver the water, there is a necessary direct association between the mark and the services so that the mark on the bottles constitutes an acceptable specimen, particularly since the bottles may be "stored and transported on [their] side" and "may be inverted during use" with water dispensers.
The Board agreed with applicant that goods used in the rendering of services may display the mark and may serve as source indicators for the services. Furthermore, the record showed that water bottles used in performing the services display the mark for the delivery services. However, the Board disagreed with the contention that consumers will find that the molded term PVPW indicates the source of the water delivery services.
Applicant's business involves not just water delivery but the sale of the same bottles used in delivery. Applicant's bottles display prominent PEAK VALLEY labels and its website advertises "Delivery Services Peak Valley Water 5 gal. bottles." Competitors in the water delivery industry display their marks on prominent water bottle labels and their website advertisements. There is no evidence that the mark is perceptible to the prospective consumer when the water bottles are being delivered. There is no evidence that consumers perceive, or even encounter, molded marks on the bottom of water bottles as indicators of source for water delivery services using the bottles. Based on these facts, we agree that the PWPV mark does not have a direct association with water delivery services.
The Board distinguished the Eagle Fence (alternately colored strands of wire) and Red Robin (bird costume) cases, where the marks weres clearly viewable during performance of the respective services (fence rental services and entertainment services).
On this record and in the absence of any evidence that the prospective consumer would encounter the PVPW mark on the bottom of the bottle and perceive PVPW as indicating the source of the water delivery service, we find that Applicant's bottles with a mark molded on the bottom have no direct association with Applicant's water delivery services, and so are not acceptable specimens.
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