-Wes Anderson, Attorney
Reliant Beverage Co., makers of “Recovery Water,” has an endorsement from Russell Wilson and heaps of buzz surrounding the purported benefits of its products and “nanobubbles,” but thanks to some errors from both Reliant and the PTO, a federal trademark may be out of reach.
The attached evidence from Collins dictionary shows the wording “RECOVERY” means the act of recovering or the gaining of something lost. The word “water” appears in applicant’s identification of goods and thus is generic for an ingredient of applicant’s goods. As shown by the attached evidence from Size or Shred, Cardiostrong, Bodybuilding.com, C12, RoadRunner Sports, and an article entitled “Why Bother with Recovery Drinks,” “recovery drinks” are commonly sold in the athletic industry to allow athletes to improve the rate of recovery after serious exercise in order to enable the drinker to improve performance. Therefore, the wording taken together merely describes an ingredient and quality of applicant’s water drinks.
This must not have been entirely unexpected for Reliant – countless sports drinks and related supplements emphasize their effectiveness for post-workout or post-exercise “recovery.” But no matter – the Examining Attorney helpfully included a standard form “advisory” informing Reliant that it could amend this application to the Supplemental Register. While the Supplemental Register is effectively the “junior” register for descriptive marks and many advantages of a typical trademark registration on the Principal Registration are lost, it would at least allow Reliant to exclude others from registering a similar mark while it sought to obtain acquired distinctiveness in RECOVERY WATER over time.
So, Reliant dutifully amended its application to the Supplemental Register (with a disclaimer of the generic wording “WATER”), and all seemed well. Then in mid-August, the bombshell came with another office action:
Upon further review, the trademark examining attorney has determined that amendment to the supplemental register is insufficient to overcome the Section 2e1 refusal, as the mark appears to be generic. Therefore, applicant’s response raises a new issue, which applicant must address. The examining attorney regrets the delay in raising this issue, and apologizes for any inconvenience to the applicant.
Unfortunately for Reliant, the Examining Attorney neglected to consider whether RECOVERY WATER was not only descriptive but also generic, a finding of which would be fatal to any trademark registration (and, indeed, would preclude any legitimate enforcement of the mark for third-party use). As evidence to support a generic refusal, the Examining Attorney unearthed a press release from Reliant itself that used the wording “recovery water” generically:
Reliant is the first and only recovery water proven to reduce the muscle damage and soreness that often comes with an active lifestyle. Drinking Reliant helps you recover faster so you can do more and feel better.
Reliant recovery water has become the beverage of choice for world-class athletes wanting to train harder and perform better.
The cardinal rule to avoid genericide: always use your trademark as a trademark (“Recovery Water® sports drink”), rather than as a synonym for the thing itself — or, ideally, choose a distinctive mark in the first place. Now Reliant, once thought to be nearing a registration, has a genericness battle on its hands, thanks in part to its own marketing materials.
Not to be too cruel to Reliant, but perhaps the Russell Wilson endorsement is particularly appropriate here: right on the goal line, success looking inevitable – only to have it snatched away in an instant.
Sorry, Seahawks fans.