Thanks again very much Barton for all your hard work on the casebook!

Best,

Tomas

Thanks Barton. I think it’s a great idea to include a little bit more about it. One thing I’ve always wondered about the case was why the court was assessing the mark in a vacuum in deciding how much imagination etc was necessary in order to classify it as either suggestive or descriptive. Judge Boggs asks how would the energy be transferred to the consumer: “The first question one would ask is how would the energy be transferred? Through food? Through drink? Through injections? Through pills? Through exercise?” But to me wouldn’t we be assessing this by looking at the mark vis-a-vis the goods or services already known to be involved? And my recollection is that the mark was for a non-alcoholic beverage, so that means, to me that the mark is certainly more descriptive than suggestive. But maybe I’m misreading things.

Best,

Tomas