Case: 20-1236 Document: 33 Page: 1 Filed: 12/11/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: CHRISTOPHER COLES,
Appellant
______________________
2020-1236
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
87570785.
______________________
Decided: December 11, 2020
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KERRY ANN BRENNAN, Brennan Law Firm PLLC, New
York, NY, for appellant.
DANIEL KAZHDAN, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, for appellee
Andrei Iancu. Also represented by CHRISTINA J. HIEBER,
THOMAS W. KRAUSE, FARHEENA YASMEEN RASHEED, ERICA
JEUNG DICKEY.
______________________
Before NEWMAN, DYK, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
Christopher Coles appeals from a decision of the Trade-
mark Trial and Appeal Board (“Board”) affirming the
Case: 20-1236 Document: 33 Page: 2 Filed: 12/11/2020
2 IN RE: COLES
examining attorney’s final refusal to register Coles’ “BREW
SCIENCE” mark because the mark is descriptive of the
services identified in Coles’ trademark application. In re
Coles, No. 87570785, 2019 WL 5290188 (T.T.A.B. Sept. 26,
2019). Because substantial evidence supports the Board’s
conclusion, we affirm.
I. BACKGROUND
On August 16, 2017, Coles filed an application seeking
registration on the principal register of “BREW SCIENCE”
in standard characters. He identified the services as:
Entertainment services, namely, on-line non-
downloadable videos, in the field of beer, beer ac-
cessories and the beer industry; provision of enter-
tainment, namely, on-line non-downloadable
videos concerning beer, beer accessories and the
beer industry.
J.A. 223. With his application, Coles included still images
from a video, entitled “5 Last Minute Gift Ideas That Won’t
Cut Into Your Beer Fund,” that can be found on his web-
site. J.A. 37–48.
Over three non-final office actions and a final office ac-
tion, the examining attorney refused to register the mark,
finding that it was merely descriptive of a feature of the
identified services. See J.A. 51–82, 97–180, 201–04,
226–79. In the final office action, issued January 9, 2019,
the examining attorney distilled the issue. “Brew,” as de-
fined by Merriam-Webster’s Online Dictionary, means “a
brewed beverage (such as beer).” J.A. 227 (quoting J.A.
232). “Science,” as defined by The American Heritage Dic-
tionary of the English Language, means “[a] systematic
method or body of knowledge in a given area.” J.A. 227
(quoting J.A. 235). In light of these definitions, the exam-
ining attorney concluded a consumer would understand
“BREW SCIENCE” as describing “a body of knowledge
about beer or preparing beer.” J.A. 228. And the
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IN RE: COLES 3
examining attorney found that the record, including nu-
merous online videos and websites, established that “con-
sumers who brew and consume beer commonly use the
wording ‘BREW SCIENCE’ to describe information about
beer and preparing beer.” J.A. 228.
The examining attorney further found that the descrip-
tion of Coles’ videos on his website confirmed that the mark
is merely descriptive of the described services. The website
explains that it is “[a] beer show” that “do[es] sciencey type
stuff like experiments.” Id. And, the website represents,
“[w]e are committed to ensuring that no beer-related query
(a buery, if you will) goes un-answered.” Id.
Coles appealed to the Board. Coles acknowledged that
“brew” is a slang term for beer. Coles focused his argu-
ment, instead, on a contention that the “video services are
comedic in nature and not scientific.” J.A. 302. Given the
allegedly comedic nature of Coles’ videos, he claimed that
the “BREW SCIENCE” mark is “playful and fanciful in the
context of its services.” Id.
The examining attorney, in her appeal brief before the
Board, cited several pieces of evidence to establish that
“BREW SCIENCE” is descriptive. She presented diction-
ary definitions of “brew” and “science,” numerous online
sources using the phrase, and statements on Coles’ website
describing the videos as relating to “sciencey type stuff.”
The Board found that the record established the defini-
tion of “brew” as a “brewed beverage (such as beer).” Coles,
2019 WL 5290188, at *5. The Board further found that the
record established the definition of “science” as “a system-
atic method or body of knowledge in a given area.” Id. In
the context of Coles’ services, it concluded, “‘science’ . . . de-
scribes a body of knowledge about beer or brewing beer.”
Id. The Board also found that the evidence tended to show
that “brew science” is used in the beer industry to discuss
beer knowledge. Id. at *6.
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4 IN RE: COLES
The Board therefore held that “BREW SCIENCE” is “a
merely descriptive term related to a body of knowledge
about beer or brewing beer.” Id. at *7. And, when used in
connection with Coles’ identified entertainment services,
“it immediately tells consumers about a feature of those
services, namely, that the entertainment provided in the
form of non-downloadable videos featuring beer and the
beer industry includes videos related to the science of beer,
or BREW SCIENCE.” Id. The Board thus affirmed the
examining attorney’s refusal to register “BREW
SCIENCE.” Id. at *8.
Coles appeals the Board’s decision. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(4)(B).
II. ANALYSIS
The Lanham Act precludes registration of a mark that
“when used on or in connection with the goods of the appli-
cant is merely descriptive . . . of them.” 15 U.S.C.
§ 1052(e)(1). “A term is merely descriptive if it immedi-
ately conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is
used.” In re Bayer AG, 488 F.3d 960, 963 (Fed. Cir. 2007).
“A mark may be merely descriptive even if it does not de-
scribe the ‘full scope and extent’ of the applicant’s goods or
services.” In re Oppedahl & Larson LLP, 373 F.3d 1171,
1173 (Fed. Cir. 2004).
The Board’s determination that a mark is merely de-
scriptive is a factual finding, which we review for substan-
tial evidence support. In re TriVita, Inc., 783 F.3d 872, 874
(Fed. Cir. 2015). “Substantial evidence ‘means such rele-
vant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.’” In re Bayer AG, 488 F.3d
at 964 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). Given this deferential standard, “we may not
reverse the Board’s decision for lack of substantial evidence
. . . so long as competent evidence in the record supports
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IN RE: COLES 5
the Board’s ruling.” DuoProSS Meditech Corp. v. Inviro
Med. Devices, Ltd., 695 F.3d 1247, 1252 (Fed. Cir. 2012).
Coles’ arguments on appeal amount to one overarching
contention: the Board’s decision lacks substantial evidence
support. For the reasons discussed below, we disagree.
Substantial evidence supports the Board’s finding that
“brew” refers to beer. See Coles, 2019 WL 5290188, at *5.
The Board cited two dictionaries and multiple definitions.
Id. at *2. That evidence is substantial evidence supporting
the Board’s conclusion. The fact that, as Coles contends,
“brew” can also refer to, inter alia, the brewing of tea, does
not detract from the conclusion that brew is a commonly
accepted term for beer and that, in the context of entertain-
ment services related to beer, a consumer would reasona-
bly understand the term to refer to beer.
Substantial evidence also supports the Board’s finding
that “science” refers generally to “a systematic method or
body of knowledge in a given area,” and specifically, in the
context of Coles’ mark, to “a body of knowledge about beer
or brewing beer.” Id. at *5. The Board supported its con-
clusion with multiple dictionary definitions. Id. at *2. The
Board further explained that Coles’ own website, which de-
scribes his videos as containing “sciencey type stuff,” in-
cluding experimenting with different beer combinations,
confirmed its understanding. Id. at *5. Given this, the
Board rejected Coles’ contention that “science” was used in
a merely “playful” manner to describe the videos. Id. On
appeal, Coles again argues that “science” is used in a come-
dic fashion. But, as the Board aptly observed, Coles’ de-
scribed services are broad enough to encompass “providing
non-downloadable videos concerning the science of beer
and the science of brewing beer.” Id. That his specific prod-
uct is comedic does not overcome the fact that the specified
services are not so limited.
Finally, substantial evidence supports the Board’s find-
ing that the mark “BREW SCIENCE” is descriptive of
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6 IN RE: COLES
Coles’ identified services. The Board found that the terms
“brew” and “science,” when combined, retain their descrip-
tive significance. Id. at *6. The Board cited numerous
online sources using the term “brew science.” Id. at *2–5.
It concluded that those sources establish that “brew sci-
ence” is “used in the beer industry, by home brewers, by
educational institutions, by bloggers and on websites in
discussing beer, including the brewing of beer, and making
craft brews.” Id. at *6. Coles’ own website, moreover,
clearly describes his videos as relating to the knowledge of
beer. The Board, citing this evidence, concluded that
“BREW SCIENCE” was just as descriptive as its individual
components. Id. Given the extensive evidence cited by the
Board, we hold that the Board’s findings are supported by
substantial evidence.
Coles argues that the Patent and Trademark Office has
previously registered several marks containing the term
“science” for entertainment services. He contends that this
creates precedent that “science” is not descriptive of enter-
tainment services. Appellant’s Br. 13–14. We disagree. A
list of marks containing “science” is, at best, probative and
does not overcome the substantial evidence cited by the
Board that establishes the descriptiveness of “BREW
SCIENCE” in relation to the specific services at issue in
this case. We note, moreover, that Coles provides us with
a bare list of marks containing “science.” Such a list estab-
lishes nothing of relevance to this case, as there is no basis
for us to assume that the cited marks are themselves in-
herently distinctive.
CONCLUSION
We have considered Coles’ remaining arguments and
find them unpersuasive. For the reasons discussed above,
we affirm the Board’s decision affirming the examining at-
torney’s final refusal to register “BREW SCIENCE” on the
principal register.
AFFIRMED