Zervas
Ritchie
Goodman*
This Opinion is not a
Precedent of the TTAB
Mailed: September 26, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Christopher Coles
_____
Serial No. 87570785
_____
Kerry A. Brennan of Brennan Law Firm PLLC,
for Christopher Coles, dba Cubestone Creative.
Yatsye I. Lee, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____
Before Zervas, Ritchie and Goodman,
Administrative Trademark Judges.
Opinion by Goodman, Administrative Trademark Judge:
Christopher Coles dba Cubestone Creative (Applicant) seeks registration on the
Principal Register of the mark BREW SCIENCE (in standard characters) for
Entertainment services, namely, on-line non-downloadable videos, in the field of
beer, beer accessories and the beer industry; provision of entertainment, namely, on-
line non-downloadable videos concerning beer, beer accessories and the beer
industry in International Class 41.1
1 Application Serial No. 87570785 was filed on August 16, 2017, under § 1(a), 15 U.S.C. §
1051(a), alleging August 13, 2017 as his date of first use and first use in commerce.
Serial No. 87570785
The Trademark Examining Attorney has refused registration of Applicants mark
on the ground that BREW SCIENCE is merely descriptive in relation to the identified
services, under § 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Mere Descriptiveness
Section 2(e)(1) of the Trademark Act prohibits the registration of a mark which,
when used on or in connection with an applicants goods or services, is merely
descriptive of them. A term is merely descriptive if it immediately conveys
knowledge of a quality, feature, function, or characteristic of the goods or services
with which it is used. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960, 82
USPQ2d 1828, 1831 (Fed. Cir. 2007)); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009, 1009 (Fed. Cir. 1987). Descriptiveness is analyzed in relation to an applicants
identified goods or services, the context in which the [term] is being used, and the
possible significance that the term would have to the average purchaser of the goods
[or services] because of the manner of its use or intended use; that a term may have
Page references to the application record refer to the online database of the USPTOs
Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal
refer to the Boards TTABVUE docket system.
2Applicant amended the first portion of the identification based on the Examining Attorneys
suggestion. November 22, 2017 Office Action at TSDR 1; Response to Office Action at TSDR
1.The Examining Attorney also issued a misdescriptiveness refusal in the February 15, 2018
Office Action at TSDR 1 but that refusal was later withdrawn in the January 9, 2019 Office
Action at TSDR 1.
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Serial No. 87570785
other meanings in different contexts is not controlling. In re Bayer, 82 USPQ2d at
1831. Descriptiveness is not considered in the abstract. Id. The question is whether
someone who knows what the goods or services are will understand the term to
convey information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012).
When two or more merely descriptive terms are combined, the determination of
whether the composite mark also has a merely descriptive significance turns on
whether the combination of terms evokes a new and unique commercial impression.
If each component retains its merely descriptive significance in relation to the goods
or services, the combination results in a composite that is itself merely descriptive.
See, e.g., In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 &
1374 (Fed. Cir. 2004) (PATENTS.COM merely descriptive of computer software for
managing a database of records that could include patents and for tracking the status
of the records by means of the Internet).
The Examining Attorney argues that the term brew science is merely descriptive
of Applicants identified services because it immediately conveys knowledge about a
feature or subject matter of Applicants services, namely that the subject matter of
the non-downloadable videos is broad enough to include the body of knowledge and
information about the brewed beverage beer, as well as brewing beer. Applicant, by
contrast, argues that brew science is arbitrary and fanciful and not merely
descriptive because the term is not immediately associated with entertainment
services.
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Serial No. 87570785
A. Evidence
The Examining Attorney submitted evidence to show that brew science refers to
information about beer and brewing beer. 6 TTABVUE 6.
The Examining Attorney provided the following dictionary definitions:
Brew (v.):3
1. : to prepare (beer, ale, etc.) by steeping, boiling, and
fermentation or by infusion and fermentation
1. : to brew beer or ale
***
Brew (v.):4
1. To make (ale or beer) from malt and hops by infusion,
boiling, and fermentation
***
Brew (n.):5
a: a brewed beverage (such as beer)
c: something produced by or as if by brewing
***
3November 22, 2017 Office Action at TSDR at 2; February 15, 2018 Office Action at TSDR 3;
January 9, 2019 Office Action at TSDR 2. MERRIAM-WEBSTER DICTIONARY, merriam-
webster.com.
4February 15, 2018 Office Action at TSDR 2, AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (5th Ed. 2018), Ahdictionary.com.
5February 15, 2018 Office Action at TSDR 3; January 9, 2019 Office Action at TSDR 2,
MERRIAM-WEBSTER DICTIONARY, merriam-webster.com.
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Serial No. 87570785
Science (n.):6
: something (such as sport or technique) that may be
studied or learned like systemized knowledge, have it down
to a science
: knowledge or a system of knowledge covering general
truths of the operation of general laws especially as
obtained and tested through scientific method
***
Science (n.):7
1. A systematic method or body of knowledge in a given
area: the science of marketing
The Examining Attorney submitted articles relating to brew science programs at
universities and colleges:
The students learned a lot about brew pub operations,
brew science, brew marketing and the rules and
regulations that govern local breweries.8
***
White was prompted to start the Professional Brew
Science Program at South College in 2013, and more
recently, the Brewing+Distilling Center.9
6November 22, 2017 Office Action at TSDR at 3; February 15, 2018 Office Action at TSDR 5;
January 9, 2019 Office Action at TSDR 4, MERRIAM-WEBSTER DICTIONARY, merriam-
webster.com.
7February 15, 2018 Office Action at TSDR 4; January 9, 2019 Office Action at TSDR 3,
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th Ed. 2018),
Ahdictionary.com.
8January 9, 2019 Office Action at TSDR 18, Kathyrn Moschella, Culinary students at
University of South Florida Sarasota-Manatee Take the Art of Beer Science Seriously, The
Bradenton Herald (April 25, 2015).
9January 9, 2019 Office Action at TSDR 19, Rachel Toten, Brewing+Distilling Center
Launches 13-week Certification Program, The Daily Times (May 4, 2017).
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Serial No. 87570785
***
Almost a decade ago, the idea of teaching beer as a science
was untapped at Florida International University.
In
2007, the brew science course was only an elective in the
universitys Chaplin School of Hospitality and Tourism
Management and had about three students.
Now there
are multiple courses dedicated to the science and chemistry
of making craft brews
10
***
Lyle Farrell, who has been in the beer industry for 17 years
and has a brew science degree from UC Davis, is still
heading up the beer program, which will primarily feature
local beers.11
The Examining Attorney submitted web pages from colleges that provide
information related to their brew science programs:
The Craft Brewing program provides an overview of the
craft brewing business
The certificate program is
structured to help students learn brew science theory
through hands-on experience in the brew laboratory and
local breweries.12
***
The University of Richmond School of Professional and
Continuing Studies offers a beer brewer professional
certificate for those interested in entering or advancing in
the growing craft beer industry. The program offers 11
modules with 6 modules in Brew Science and Brewery
Process.13
10February 15, 2018 Office action at TSDR 19-24, Lance Dixon, Craft Beer Festival Celebrates
Fifth Year with New Sponsor and Plenty of Brews, Miami Herald (November 14, 2016).
January 9, 2019 Office Action at TSDR 17, Stephanie Tuder, Buzzworks Sports and Beer
11
Bar Plans Overload of Screens and Craft Beers, Eater.com (June 29, 2016).
12 February 15, 2018 Office Action at TSDR 34-36, Craft Brewing, catalog.skagit.edu.
13February 15, 2018 Office Action at TSDR 37-41 Beer Brewer Professional Certificate,
spcs.richmond.edu.
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Serial No. 87570785
The Examining Attorney submitted web pages from brewing companies that
mention brew science:
We have two brewers, both with degrees in brew
science.14 (HR Brewing).
***
If you ask Head Brewer John Syms and his team, theyll
tell you Wynkoops secret sauce lies in the longstanding
tradition of craft beer pioneering and pushing the envelope
Johns take on craft beer unrest meets nerdy brew
science has yielded some exceptional batches of very tasty
beer.15
***
The Examining Attorney submitted evidence of use of the term brew science in
connection with experimenting when brewing beer:
The article about Petoskey Brewing discusses the brew
teams unconventional experiments that have resulted in
a cult favorite brew and mentions that the brew
science experiments, however, sometimes require artistic
improvisation to deliver delicious beer from unexpected
results.16
A blog titled Brew Science Home Brewing Blog, discusses brewing
experiments.17 For example, the blogger describes his experimentation:
I began brewing experiment beers for a yeast class that I
taught at Brooklyn Homebrew. Ben and Danielle were kind
14 February 15, 2018 Office action at TSDR 6-8, hrbrewingco.com.
15February 15, 2018 Office Action at TSDR 42-45, Pioneering the Golden Age of Craft beer
with Wynkoop Brewing Co., wynkoop.com.
16 February 15, 2018 Office action at TSDR 25-33 Tim Tebeau, A Craft Beer Revival for One
of Michigans Oldest Breweries, Petoskey Brewing, mynorth.com (September 28, 2017).
17 November 22, 2017 Office Action at TSDR 5, sciencebrewer.wordpress.com.
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Serial No. 87570785
enough to provide resources and space for my scientific
curiosities that kept brewing.18
This beer was an experiment. I never did a cereal mash
before and wanted to see if there was a noticeable flavor
difference between flaked wheat and raw wheat.
I did
not notice a difference from past brews, although the best
experiment would be to brew another beer with flaked
wheat side-by-side.19
***
The website Braukaiser, The Science of Making Beer, has posts under Brewing
Science20 and discusses experiments:
Yeast Growth in Hopped Wort. In this experiment I looked
at the influence that iso-alpha acids have on yeast growth.
This was motivated by curiosity and the fact that there are
a number of brewers, like me, who are using leftover wort
from brewday for future starters.
***
The Examining Attorney submitted an excerpt from the HomeBrew Handbook, a
book about brewing beer at home, that has a chapter on brew science:
A Little More Brew Science. Although homebrewing beer
is essentially a simple, step-by-step process, there is a
certain amount of science involved in it.21
The Examining Attorney submitted web pages from website forums that include
topics related to brew science:
The website forum at Homebrewtalk.com includes topics under Brew Science.22
18 Id.
19 Id.
20 February 15, 2018 Office Action at TSDR 49, braukaiser.com.
February 15, 2018 Office action at TSDR 9-11, David Law and Beshlie Grimes HomeBrew
21
Handbook, books.google.com.
22 November 22, 2017 Office Action at TSDR at 4, www.homebrewtalk.com/forum.
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Serial No. 87570785
The Brewing Network has forum posts under the category Brew Science:
Chemistry Help.23
***
The Examining Attorney submitted a page from a YouTube video related to Brew
Science:
Brew Science Episode 1. Published January 6, 2012.
Washington brewer Marvin Dyck is joined by George
Eagleson (of F&M Brewery) in the first video of our Brew
Science series looking at the science of brewing. In this
short video Marvin shows how we prepare beer samples in
the lab for microbiological testing.24
***
The Examining Attorney provided web pages and blog pages using the terms
brew science:
Bootleg Brew Science. Whats more local than making
homebrew with yeast isolated from your own backyard?
Come learn how anyone can be a bootleg yeast wrangler,
using proven homebrew methods, basic-level lab
techniques and a paper clip.25
***
Brewing Science Everything Homebrew Related. This
section is about brewing science. It is a collection of
topics that spans the entire homebrewing hobby.
Brewing science involves biology, chemistry,
mechanics and physics.26
***
23 November 22, 2017 Office Action at TSDR 8, thebrewingnetwork.com.
24February 15, 2018 Office Action at TSDR 46; January 9, 2019 Office Action at TSDR 5,
YouTube.com, wellingtonbrewery.com.
25 February 15, 2018 Office Action at TSDR 50, homebrewersassociation.org.
26 February 15, 2018 Office Action at TSDR 51, winning-homebrew.com.
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Serial No. 87570785
The website Book Cliff Home Brew Club has web pages on
Brew Science 5 ways to improve your Mash Efficiency.27
***
The website Brewing-tips.com has web pages about Brew
Science How To Harvest Yeast for Brewing. 28
***
The Life Fermented, Experiments in Fermentation and
Life blog has blog posts filed under Brew Science.29
***
The Sui Generis Brewing blog has blog posts under the
topic Brew Science and states
[t]hese articles will
explain how many of the procedures we use in brewing
work and hopefully provide sufficient information on how
to make us [sic] of these tests/processes in your own
brewing.30
***
The Precision Fermentation website posted a White Paper
The Connected Brewer under Brew Science.31
***
The Kegerator website states [a]nyone can make beer
equal to those lining your local bottle shop. Its not rocket
science its brew science and
whispering you dont
even have to know the science bit to do it.32
***
27 January 9, 2019 Office Action at TSDR 14, bookcliffbrewclub.com.
28 January 9, 2019 Office Action at TSDR 15, brewing-tips.com.
29 November 22, 2017 Office Action at TSDR 6, lifefermented.wordpress.com.
30 November 22, 2017 Office Action at TSDR 7, suigenerisbrewing.blogspot.com.
31 January 9, 2019 Office Action at TSDR 12-13, precision fermentation.com.
32 February 15, 2018 Office action at TSDR 12-18, learn.kegerator.com.
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Serial No. 87570785
The Examining Attorney submitted a webpage from Applicants website to show
that the subject matter of Applicants videos is information about beer and brewing
beer. The Examining Attorney points out that applicants own website mentions the
knowledge and information, e.g., the science, aspect of applicants videos on beer. 6
TTABVUE 13.
Rad Scientists!
A beer show reviewing everything from macro to micro,
IIIPA to Gose, and anything else we can get our hands on.
But we couldnt rightfully go around calling ourselves
scientists if we didnt also do sciencey type stuff like
experiments and whatnot, could we?
Well, lucky for you, we take our job very seriously.
Ever wondered if pairing a chocolate stout with a banana
bread beer would taste like a chocolate covered banana? So
have we.
Ever wanted to know if you would whip together a last
minute coffee stout out of a regular stout and home-brewed
coffee? So have we.
We are committed to ensuring that no beer-related query
(a buery, if you will) goes un-answered.33
Applicants specimen is a screen shot of one of its YouTube videos which shows
the term BEER SCIENCE next to chemistry labware or glassware, (i.e, an
Erlenmeyer Flask with a handle).34
33 January 9, 2019 Office Action at TSDR 22, www.brewscience.tv
34 August 16, 2017, Specimen.
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Serial No. 87570785
II. Analysis
Based on the evidence of record, the applied-for mark BREW SCIENCE is merely
descriptive of providing non-downloadable videos in the field of beer, beer accessories
and the beer industry.
The record establishes that the definition for brew is a brewed beverage (such
as beer). Applicants entertainment services are in the field of beer, beer accessories
and the beer industry. Therefore, we find that brew merely describes the field or
subject matter of the non-downloadable videos that are provided in connection with
the entertainment service. While acknowledging that brew means beer, Applicant
points out that brew also has other meanings. However, as noted above, our mere
descriptiveness determination must be based on the significance of the term in
connection with Applicants services, not in the abstract.
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Serial No. 87570785
The record establishes that the definition for science is a systematic method or
body of knowledge in a given area. Therefore, science in the context of Applicants
services, describes a body of knowledge about beer or brewing beer. Applicant argues
that his use of the term science is in a playful manner and that his videos are
comedic and not scientific or educational. 4 TTABVUE 4, 13. However, Applicants
own web page references Ricardo and Chris as rad scientists that do sciencey
type stuff such as experimenting with beer flavors (chocolate stout combined with
banana bread beer, and regular stout combined with home-brewed coffee) and
suggests that viewers tune into our YouTube channel . To have your mind
scientifically blown.35 Additionally, the subject matter of Applicants entertainment
service, i.e., providing non-downloadable videos in the field of beer, beer accessories,
and the beer industry, is broad enough to include providing non-downloadable videos
concerning the science of beer and the science of brewing beer.
Applicant also argues that third-party registrations incorporating the term
science are indicative of a lack of descriptiveness of the term. Applicant submits
that various science marks for entertainment services have been registered,
including marks having nothing to do with scientific knowledge. 4 TTABVUE 11-
12. In his brief, Applicant incorporated a table and list that he submitted during
prosecution to support these arguments.36
35 January 9, 2019 Office Action at TSDR 22, www.brewscience.tv.
36 This same table and list of registrations were incorporated into Applicants responses
(November 23, 2018 Response to Office Action at TSDR 7-9 and April 16, 2018 Response to
Office Action at TSDR 8-9); only the table was incorporated into the January 19, 2018
Response to Office Action at TSDR 5-6. The Examining Attorney did not advise the Applicant
in any of the Office Actions that listing the registrations does not make them of record and
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Serial No. 87570785
We find the table and list to be of extremely limited probative value, as we have
no information regarding whether the third-party science registrations include any
disclaimed matter or Section 2(f) claims, whether the marks are on the Principal or
Supplemental Registers, and the exact nature of the identified entertainment
services. Additionally, [n]either the Trademark Examining Attorney nor the Board
is bound to approve for registration an Applicants mark based solely upon the
registration of other assertedly similar marks for other goods or services having
unique evidentiary records. In re Datapipe, Inc., 111 USPQ2d 1330, 1336 (TTAB
2014); see also In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001) (the Board must decide each case on its own merits; prior decisions in other
applications are not binding on the Board and each case is evaluated on its own
record). Accordingly, we are not persuaded by these arguments. We find that science
also describes the subject matter of Applicants service of providing non-downloadable
videos in the field of beer, beer accessories, and the beer industry, especially since
the identification is broad enough to include providing non-downloadable videos
concerning the science of beer and the science of brewing beer.
In addition to the dictionary meanings of the merely descriptive terms brew and
science, we find that the terms brew and science retain their descriptive
significance when combined into BREW SCIENCE. The Internet evidence shows that
the term brew science is used in the beer industry, by home brewers, by educational
discussed them in the February 15, 2018 and January 9, 2019 Office Actions, as well as
discussing the table and list in the brief. Therefore, we consider the table and list stipulated
into the record.
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Serial No. 87570785
institutions, by bloggers and on websites in discussing beer, including the brewing of
beer, and making craft brews. In addition, Applicants website confirms that the
videos will feature sciencey type stuff relating to beer. Thus, we disagree with
Applicants conclusion that BREW SCIENCE is fanciful, word play, or a play-on-
words (4 TTABVUE 4, 8, 13) and find that when considered in connection with
Applicants services, the combined term BREW SCIENCE is just as descriptive as the
terms brew and science are individually.
Applicant contends that his specimen shows that the proposed mark is not used
in connection with science matters, as the particular video shown in the specimen is
about 5 last minute gifts. However, Applicants web page confirms that BREW
SCIENCE is at least, in part, the subject matter of the non-downloadable videos in
that applicant provides content concerning sciencey type stuff related to beer. The
issue of mere descriptiveness is decided on the basis of the services as set forth in the
application. In re Allen Elec. and Equip. Co., 458 F.2d 1404, 173 USPQ 689, 690
(CCPA 1972) (while applicant contends that the specimen shows that the mark is
not in fact applied to scanning antennas, trademark cases must be decided on the
basis of the identification of goods as set forth in the application. Since the goods
are described merely as antennas and that term is broad enough to encompass
scanning antennas, the mark SCANNER as applied to the goods is merely
descriptive of antennas). Thus, we must view the proposed mark BREW SCIENCE
in the context of the identified services, namely, the subject matter of the non-
downloadable videos Applicant provides in connection with his entertainment
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Serial No. 87570785
services. When we look to the identification, the subject matter of the videos is broadly
identified as featuring content relating to beer, beer accessories and the beer
industry, and we must assume, for purposes of our legal analysis, that Applicants
entertainment services include providing non-downloadable videos about the science
of beer or the science of brewing beer.
Applicant also argues that BREW SCIENCE is not merely descriptive because it
does not suggest entertainment services or media services. 4 TTABVUE 13.
However, as stated, BREW SCIENCE is merely descriptive of the subject matter of
Applicants service of providing non-downloadable videos in the field of beer, beer
accessories and the beer industry, which is a sufficient basis to find Applicants
proposed mark merely descriptive. See, e.g., In re Putman Publg Co., 39 USPQ2d
2021 (TTAB 1996) (FOOD & BEVERAGE ONLINE merely descriptive of news and
information services in the food processing industry).
Applicant also submits that [j]ust because Applicant talks about experimenting
with beer or jokingly references Albert Einstein does not mean there is anything
scientific, by definition, on the videos. 4 TTABVUE 4. However, the evidence shows
that the term brew science is used descriptively by third parties to refer to
experimenting with beer or brewing beer. For example, as mentioned above, the Brew
Science Home Brewing Blog and the website Braukaiser, The Science of Beer, both
discuss their brewing experiments in connection with beer, and the article about
Petoskey Brewing discusses brew science experiments that result in unique craft
beers. In addition, the Kegerator.com website states that one of the reasons to start
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Serial No. 87570785
home brewing is experimentation: You can experiment in avenues that never make
it to commercial shelves. Have you always wondered what a particular herb might
taste like in a beer; nows your chance to find out.37 Applicants web page evidences
the mere descriptiveness of the term BREW SCIENCE as Applicant mentions that
his provision of non-downloadable video content includes sciencey type stuff and his
videos will include beer experiments such as making a chocolate covered banana beer
and a coffee stout beer.
Finally, Applicant asks that any doubt as to descriptiveness be resolved in his
favor. 4 TTABVUE 13-14. Applicant is correct that when there is doubt as to the mere
descriptiveness of a proposed mark, we must resolve such doubt in favor of an
applicant. In the present case, however, we have no doubt that Applicants mark is
merely descriptive.
III. Conclusion
The evidence submitted by the Examining Attorney establishes that the composite
BREW SCIENCE is a merely descriptive term related to a body of knowledge about
beer or brewing beer. When BREW SCIENCE is used in connection with Applicants
identified entertainment services, namely, on-line non-downloadable videos, in the
field of beer, beer accessories and the beer industry; provision of entertainment,
namely, on-line non-downloadable videos concerning beer, beer accessories and the
beer industry, it immediately tells consumers about a feature of those services,
namely, that the entertainment provided in the form of non-downloadable videos
37 February 15, 2018 Office action at TSDR 15, learn.kegerator.com.
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Serial No. 87570785
featuring beer and the beer industry includes videos related to the science of beer, or
BREW SCIENCE.
Decision: The refusal to register BREW SCIENCE under Section 2(e)(1) is
affirmed.
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