Crystal Geyser Water Company

THIS OPINION IS A
PRECEDENT OF THE TTAB

Mailed: May 31, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Crystal Geyser Water Company
________

Serial No. 76201270
_______

Lawrence G. Townsend, Owen, Wickersham & Erickson, P.C. for
Crystal Geyser Water Company.

Elizabeth A. Hughitt, Trademark Examining Attorney, Law
Office 111 (Craig D. Taylor, Managing Attorney).
_______

Before Holtzman, Kuhlke and Wellington, Administrative
Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Crystal Geyser Water Company has filed an application

to register the mark on the Principal

Register for “bottled spring water” in International Class

32.1

The examining attorney required that applicant

disclaim the wording ALPINE SPRING WATER on the ground that

1
Application Serial No. 76201270, filed January 29, 2001, under
Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a), alleging
May, 1998 as the date of first use and first use in commerce.
Serial No. 76201270

it is merely descriptive of applicant’s goods within the

meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C.

§1052(e)(1).2 When the examining attorney continued the

requirement for a disclaimer based on descriptiveness and

added misdescriptiveness as an alternative basis for the

requirement, applicant responded by filing an amendment to

seek registration under Section 2(f) of the Trademark Act

in part as to ALPINE SPRING WATER based on substantially

exclusive and continuous use in commerce for more than five

years and supporting evidence of acquired distinctiveness.

The examining attorney issued a non-final action

determining that applicant had not shown acquired

distinctiveness and maintained the refusal of registration

in the absence of a disclaimer under Section 6(a).

Applicant then submitted a disclaimer of the words SPRING

WATER, but applicant did not agree to a disclaimer of the

entire phrase ALPINE SPRING WATER. Consequently, pursuant

to Section 6(a) of the Trademark Act, 15 U.S.C. §1056(a),

the examining attorney made final the requirement for a

disclaimer and refusal of registration in the absence of

such disclaimer, stating that the declaration and evidence

was insufficient to establish acquired distinctiveness in

2
The examining attorney also refused registration under Section
2(d) based on likelihood of confusion with a prior registration.

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Serial No. 76201270

view of the highly descriptive nature of the phrase.

Applicant has appealed and both applicant and the examining

attorney have filed briefs. We affirm the disclaimer

requirement and the refusal to register in the absence of a

disclaimer.

Inasmuch as applicant has amended its application to

seek registration under Section 2(f) in part based on

acquired distinctiveness, applicant has conceded that the

phrase ALPINE SPRING WATER is descriptive, and the only

issue before us is applicant’s assertion of acquired

distinctiveness. Yamaha Int’l Corp. v. Hoshino Gakki Co.

Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988);

In re Cabot Corp., 15 USPQ2d 1224, 1229 (TTAB 1990). We

note, in any event, that the examining attorney has

submitted ample evidence to establish the mere

descriptiveness of the phrase “alpine spring water” as

shown below in the discussion relating to the highly

descriptive nature of the phrase.

It is applicant’s burden to prove acquired

distinctiveness. Yamaha, supra, 6 USPQ2d at 1006; In re

Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295

(CCPA 1954) (“[T]here is no doubt that Congress intended

The Section 2(d) refusal was subsequently withdrawn after
applicant was granted its petition to cancel that registration.

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Serial No. 76201270

that the burden of proof [under Section 2(f)] should rest

upon the applicant”). “[L]ogically that standard becomes

more difficult as the mark’s descriptiveness increases.”

Yamaha, supra, 6 USPQ2d at 1008. A claim that applicant

has been using the subject matter for a long period of

substantially exclusive use may not be sufficient to

demonstrate that the mark has acquired distinctiveness.

See In re Gibson Guitar Corp., 61 USPQ2d 1948, 1952 (TTAB

2001) (66 years of use). The amount and character of

evidence required to establish acquired distinctiveness

depends on the facts of each case, Roux Laboratories, Inc.

v. Clairol Inc., 427 F.2d 823, 166 USPQ 34 (CCPA 1970), and

more evidence is required where a mark is so highly

descriptive that purchasers seeing the matter in relation

to the goods or services would be less likely to believe

that it indicates source in any one party. See In re

Bongrain International Corp., 894 F.2d 1316, 13 USPQ2d 1727

(Fed. Cir. 1990). Evidence of acquired distinctiveness can

include the length of use of the mark, advertising

expenditures, sales, survey evidence, and affidavits

asserting source-indicating recognition. However, a

successful advertising campaign is not in itself

necessarily enough to prove secondary meaning. In re

Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed.

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Serial No. 76201270

Cir. 1999) (claim based on annual sales under the mark of

approximately eighty-five million dollars, and annual

advertising expenditures in excess of ten million dollars,

not sufficient to establish acquired distinctiveness in

view of highly descriptive nature of mark).

It is the examining attorney’s position that ALPINE

SPRING WATER is highly descriptive and applicant’s evidence

is not sufficient to establish acquired distinctiveness.

In support of her position, the examining attorney relies

on the following dictionary definition from The American

Heritage Dictionary of the English Language, for “alpine”:

Alpine: 2. Of or relating to high mountains.

The examining attorney points to the following excerpt

from a website describing applicant’s founding and noting

one of their first water sources is an alpine spring:

To succeed, they needed a source of water in a
remote area not threatened by development. They
spent a year and a half “networking” to find the
right water sources – an alpine spring 4,000 feet
up in the Sierra Nevada Mountains and a mineral
spring in Napa Valley – and figuring out
financing, production and distribution. They
built a bottling plant near the spring “in the
middle of nowhere” to ensure the purity of their
product, Gordon says. “We think that’s
important. It’s fundamental.” www.colby.edu.

In addition, she submitted printouts from various

websites retrieved from the Internet and excerpted articles

from the LEXIS/NEXIS database where the phrases “alpine

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Serial No. 76201270

spring” and “alpine spring water” are used by third parties

to describe a type of bottled water. As shown below, some

examples pertain to applicant’s proposed mark.

Does BIOTA really come from one of the highest
springs in the world? Yes. Snowmelt water is
filtered over one hundred years through 13,000-
foot peaks, emerging from its source 9,010 feet
above sea level. We believe this spring, now in
commercial use, is one of the highest and purest
alpine springs in the world.
www.biotaspringwater.com;

Pure alpine spring water, bottled with your
personalized label, is a perfect and
unforgettable refreshment for weddings and other
special events. Our bottled water comes in three
bottle sizes and dozens of label styles and
colors. www.finewaters.com;

What kind of water is best to drink? Bottled
water is more popular than ever, and for good
reason. Tap water often tastes bad and,
depending on where you live, it can contain
unwanted contaminants. If you choose bottled
water, the choices can be overwhelming. Some
things you might see on the bottles include:
spring water, distilled water, natural artesian
water, mountain spring water, alpine spring
water, and more. Confused yet? Adding to the
confusion is the fact that many bottled water
companies have been accused of putting misleading
labels on their bottles. If you’re really
serious about your water, do the research on each
company and find out which brand is best for you.
www.healthdiaries.com;

Crystal Geyser has selected 20-person shop Nice
Advertising to design a national television and
print campaign for its bottled alpine spring
water. ADWEEK (November 4, 2002).

The favorite, though, was Crystal Geyser, alpine
spring water from the mountains in Tennessee. It

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Serial No. 76201270

was the one judged to be the overall favorite.
Wilmington Star-News (October 13, 2002);

Bottled water, a familiar site [sic] to
dehydrated Mile High City dwellers, can be
customized through [email protected] Inc., a Boulder firm.
[email protected] puts a client’s logo on 12-ounce, half-
liter and 1-liter bottles of alpine spring water.
The Denver Post (April 28, 1999);

DKNY (Donna Karan) exports her alpine spring
water from her California bottler to her London
boutique and to Milan, Italy, and sells out …
Chattanooga Free Press (March 8, 1998); and

Eagle-eyed consumers would have read that Dasani
was a product of the Coca Cola Company and
should, therefore, be water of the very highest
quality, yes? …Did it bubble up from a pure and
pristine alpine spring? Was it yet another
product from the Evian region? No and no. As it
turned out, Dasani was bottled tap water… Hull
Daily Mail (January 6, 2005).

The examining attorney also submitted examples of

applicant’s advertising and promotional materials in

support of her argument that they “consistently reinforce

the highly descriptive significance of the phrase at

issue.” Br. p. 10. In the excerpts below, the examining

attorney discusses the examples she highlights:

The label for water from the applicant’s Olancha
Peak bottling plant shows a diagram of snow-
covered mountains with 14,500-ft Mr. Whitney and
12,000-ft Olancha Peak labeled, and with the term
“SOURCE” indicated below these peaks in the
diagram. The wording “BOTTLED AT THE SOURCE” is
prominently displayed across the top of the
label.;

The page from the applicant’s website with the
heading “THE DIFFERENCE” states as follows:

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Serial No. 76201270

“Bottled at the Source. Our geologists
discovered remote, protected locations with water
of remarkable quality and purity…but that is
only the first step. Other companies may truck
their water from multiple sources. We, on the
other hand, build our bottling plants right at
the mountain source because it’s the best way to
bottle and protect CRYSTAL GEYSER alpine spring
water’s freshness, purity and taste.”;

The applicant’s website page with the heading
“QUALITY” introduces the information on this page
by stating that “Crystal Geyser alpine spring
water means quality control” – with “Crystal
Geyser” having initial capitals and “alpine
spring water” shown in normal all-lowercase
lettering (exactly as just typed above in quoting
the statement), and with only the wording
“quality control” being bolded and shown in
larger lettering. In addition, the page tells
consumers: “We bottle at the source: water is
drawn directly from the spring and bottled.”;

The applicant’s website with the heading
“FREQUENTLY ASKED QUESTIONS” includes the
following question: “Q: Does CRYSTAL GEYSER
ALPINE SPRING WATER use a 1 Micron filter to
filter alpine spring water?”;

The applicant’s two-page advertisement for its
“big bottle six pack” shows, on the second page,
the large-type, bolded heading “CRYSTAL GEYSER
ALPINE SPRING WATER,” followed underneath by the
following explanation of the applicant’s goods:
“ALPINE SPRING WATER The purest, best tasting
spring water comes from the highest mountains.
Ours begins as pure rain and snow in the Sierra
Nevada, then naturally filters through the
mountain layers before emerging at the Crystal
Geyser Roxane Spring. OUR SPRING It is located
below the 12,000 foot high Olancha Peak, which is
in the protected Golden Trout National Wilderness
area. Nearby Mt. Whitney is the highest peak in
the contiguous United States. SOURCE BOTTLING
At our protected 4,000 foot high alpine spring
source, our water is drawn from deep underground
to prevent any surface contamination…We bottle

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Serial No. 76201270

Alpine Spring Water at our state of the art
bottling plant at the spring’s source. We firmly
believe that source bottling is the only way to
bottle and protect Crystal Geyser Alpine Spring
Water’s clean, refreshing taste.”; and

An online advertisement by a company selling the
applicant’s water includes the heading “Product:
Alpine Spring Water,” and describes the product
as follows: “This alpine spring water begins as
the pure snow and rain that falls on 12,000 foot
Olancha peak in the towering Sierras. It’s then
naturally filtered through the mountain’s layers.
Years later it emerges at the protected 4,000
foot high alpine source. Bottling at the source
maintains the quality and freshness.”

Br. pp. 10-13.

The examining attorney then placed applicant’s

advertising in the context of the industry where

applicant’s competitors routinely place their house mark in

close proximity to the name of the goods, two examples are

set forth below.

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Serial No. 76201270

We are persuaded by the evidence of record that the

phrase ALPINE SPRING WATER is highly descriptive of

applicant’s goods.

As proof of acquired distinctiveness, applicant

submitted the declaration of Jordan Nelson, applicant’s

Brand Manager, attesting to, inter alia, substantially

exclusive and continuous use of the mark in commerce in

connection with the identified goods since January 1990;

applicant’s sale of more than 7,650,000,000 bottles of its

spring water bearing the phrase “Alpine Spring Water”;

applicant’s display of “Alpine Spring Water” on its

delivery trucks; applicant’s use of this phrase in its

extensive advertising, including free-standing inserts or

coupon offers in newspapers; display of the mark on

promotional items (t-shirts, buttons, magnets), on sell

sheets, banners, and sales folders; and advertisements on

billboards. Mr. Nelson also asserted that applicant has

“teamed up with a number of entertainment venues or tourist

attractions” to sell its water as the “official water” of

such venues (e.g., Pier 39, a tourist attraction in San

Francisco, California, and Universal Studios in Hollywood,

California). Applicant submitted examples of its packaging

and advertising, and photographs of the billboards and

delivery trucks.

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Serial No. 76201270

After a careful review of the record, we find that

applicant has not shown that the phrase “Alpine Spring

Water” has acquired distinctiveness. We are not persuaded

by applicant’s argument that because its mark CRYSTAL

GEYSER appears in close proximity to “Alpine Spring Water”

in its advertisements and promotions, the phrase “alpine

spring water” has been endowed with source-identifying

significance. In fact, it has the effect of informing the

consumer of the nature of the product, i.e., that it is

alpine spring water. Based on applicant’s own advertising,

it is clear that at least some, if not all, of applicant’s

bottled water originates from alpine springs.3 Thus,

despite the broad advertising campaign for CRYSTAL GEYSER

ALPINE SPRING WATER and the impressive sales figures, we do

not find that ALPINE SPRING WATER has come to signify the

commercial source of the product, but rather continues

merely to inform the consumers about the nature of the

product, particularly in an industry where consumers are

accustomed to seeing the brand name and the designation of

the type of bottled water in close proximity to each other,

as the examples set forth above illustrate. Similarly,

3
While one excerpt refers to the mountains of Tennessee as a
source of applicant’s water, most refer to higher, alpine peaks
outside Tennessee.

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Serial No. 76201270

although ALPINE SPRING WATER appears in the labels in the

same color as CRYSTAL GEYSER and is set apart from the

other descriptive matter, specifically, the terms “Natural”

and “Sodium-free” displayed in a different color, we do not

find this sufficient to render applicant’s display of its

mark as significant evidence of distinctiveness, given the

highly descriptive nature of the phrase.4 While applicant

relies on In re America Online Inc., 77 USPQ2d 1618, 1619-

1621 (TTAB 2006) in support of its position, we caution

that each case must be determined on its own facts and

evidentiary record. We note that the circumstances present

in America Online were quite different and involved a

different industry. For example, in that case, the record

showed that applicant had 80 million users that send

approximately one billion messages each day using the

applicant’s services, and the record included evidence of

many corporations licensed to use the involved mark and

affidavits from customers attesting to the mark’s source-

identifying significance. America Online, at 1625.

In view of the highly descriptive nature of the phrase

ALPINE SPRING WATER, applicant’s evidence of acquired

4
We further note that use of the TM designation does not in
itself elevate descriptive matter to a trademark. In re
Remington Products Inc., 3 USPQ2d 1714 (TTAB 1987).

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Serial No. 76201270

distinctiveness is insufficient to show that the phrase

acquired distinctiveness.

Decision: The requirement for a disclaimer under

Trademark Act Section 6(a), and the refusal of

registration in the absence of a disclaimer, is

affirmed. The phrase ALPINE SPRING WATER is merely

descriptive and applicant has not established, under

Section 2(f), that it has acquired distinctiveness.

However, if applicant submits the required disclaimer

of ALPINE SPRING WATER to the Board within thirty

days, this decision will be set aside as to the

affirmance of the disclaimer requirement, and the

application then shall proceed to publication.5 See

Trademark Rule 2.142(g), 37 C.F.R. §2.142(g).

5
The standardized printing format for the required disclaimer
text is as follows: “No exclusive right to use ALPINE SPRING
WATER is claimed apart from the mark as shown.” TMEP §1213.08(a)
(4th ed. April 2005).

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