What comes to mind when one hears the term Long Island iced tea? More than likely, it’s the cocktail of gin, tequila, vodka, rum, triple sec and mixers popularized in the 1970s.
The drink looks like tea but that’s where any similarity ends. But despite widespread understanding that the term refers to a cocktail, it’s been registered for a line of actual teas.
Last month, the Long Island Iced Tea Corp., based on Long Island in New York, succeeded in getting a trademark registration for “Long Island Iced Tea,” for “Beverages made of tea; Beverages with a tea base; Fruit teas; Tea-based beverages; Tea-based beverages with fruit flavoring.”
The upshot seems to be that Long Island iced tea can be a generic term for an alcoholic drink that contains no tea. But Long Island Iced Tea can be a registered trademark for a non-alcoholic drink that is made of tea or based on tea.
Presumably, the company can’t make an alcoholic version of its iced tea and then claim exclusive rights to call it “Long Island Iced Tea.” Or can it? The registration disclaims any exclusive right to use “Iced Tea” by itself but doesn’t say whether it can have exclusive rights in an alcoholic version of its tea drinks.
In any case, the fact that the term was registered at all might be surprising. Terms such as Long Island iced tea that are used generically are usually rejected as trademarks because they lack distinctiveness.
Nonetheless, the Patent and Trademark Office issued the registration April 19 in the Supplemental Register, which is where it puts trademarks whose owners haven’t yet proved they are sufficiently distinctive.
In order to be a trademark, a term must be distinctive in relation to the goods it’s associated with. If a term is descriptive it can’t be distinctive and generally can’t serve as an indicator of the goods’ origin.
But if a descriptive term is used long enough, it can become associated in the minds of consumers with a particular source or producer. In other words, relative to trademark law, it’s can acquire distinctiveness. Proof of acquired distinctiveness is called “secondary meaning.”
All that’s important for the iced tea company, because a registration on the Supplemental Register doesn’t offer the same degree of protection as a registration on the Principal Register. For instance, a trademark owner on the Principal Register would be afforded the presumption that his trademark is valid in court, something not extended to those on Supplemental Register.
The tea makers can gather evidence of secondary meaning over time, strengthening their case for distinctiveness and applying for the Principal Register. That’s not true for terms that are officially considered generic; they can never become distinctive. “Pencil,” for instance, is the generic term for pencils. And no amount of secondary meaning is going to ever make that distinctive for anybody.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)