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TTAB Applies Issue Preclusion, Grants Summary Judgment That "COCOA BUTTER FORMULA" Lacks Acquired Distinctiveness

E.T. Browne's application to register COCOA BUTTER FORMULA for personal care products was barred by the doctrine of claim preclusion in view of a ruling by the U.S. Court of Appeals for the Third Circuit that the phrase is merely descriptive and lacks acquired distinctiveness. Browne unsuccessfully argued that the opposition should be dismissed without prejudice because the appellate court's decision did not say that the phrase could never acquire distinctiveness. Cococare Products, Inc. v.E.T. Browne Drug Co., Inc., Opposition Nos. 91169074, 91162692, 91165288, and 91167122 (January 5, 2011) [not precedential].In civil proceedings between the parties the Third Circuit reversed the District Court?s holding that COCOA BUTTER FORMULA is generic, but the appellate court also ruled that the phrase "cocoa butter formula" had not acquired distinctiveness...continue to full post

Full post as published by The TTABlog on January 24, 2011 (boomark / email).