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Coffee four maker loses trademark appeal

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Gill Hyslop

By Gill Hyslop+

14-Aug-2017
Last updated on 29-Aug-2017 at 16:14 GMT2017-08-29T16:14:02Z

The US TTAB has ruled that 'coffee flour' can not be trademarked as it is a generic term for the flour product. Pic: ©iStock/loca4motion
The US TTAB has ruled that 'coffee flour' can not be trademarked as it is a generic term for the flour product. Pic: ©iStock/loca4motion

Empire Technology Development has lost its appeal to trademark ‘coffee flour' in the US.

The US Trademark Trial and Appeal Board (TTAB) refused to overturn the US Patent and Trademark Office’s (USPTO) decision not to grant Empire Technology Development the trademark.

Empire Technology, which created a flour from ground coffee cherry skins, pulp and pectin in 2012, was first denied the go ahead to register it on the Supplemental Register in October 2015.

The US Patent and Trademark Office examining attorney said at the time that the proposed mark is a generic name for the flour product and thus incapable of distinguishing Empire Technology’s product.

TTAB stood by the earlier ruling that the proposed mark is a generic term.

It noted that, since the launch of the flour, Empire had “failed to develop and promulgate a generic term other than 'coffee flour' and to educate the public to use another name”.

The company continued to use coffee flour as a generic term in its own advertising.

"Nor did Empire Technology ever take any steps to have the media correct their own generic uses of 'coffee flour'," the TTAB panel said. 

'New impact food for the world'

In its records, "'coffee flour' is variously referred to as a new type of flour, a product, an ingredient, a superfood, and the 'new impact food for the world,' but never as the brand name for a product identified by another generic term," it added.

“Applicant’s failure to police these generic uses of its proposed mark undercuts its claim that the relevant purchasing public will understand 'coffee flour' to be anything other than the generic term for flour made from coffee cherries,” the TTAB panel wrote.

After the failed bid in 2015, Empire Technology sought an appeal claiming that ‘coffee flour’ was descriptive at best, but that the generic name for its goods would actually be “coffee cherry skin, pulp and pectin flour.”

The Wilmington, Delaware-based company described its product as being made from a byproduct of coffee production in its appeal to TTAB.  

Just the genus

But the TTAB disagreed, finding that “flour made from coffee cherry skins, pulp and pectin captured the genus of the product.”

The case is In re Empire Technology Development LLC, case number 85876688, at the US Patent and Trademark Office’s Trademark Trial and Appeal Board.

Counsel for Empire Technology – Christensen O’Connor Johnson Kindness PLLC – has not responded to this site’s request for comment.

Pic: ©iStock/artJazz

No two the same

Almost everything is being turned into flour these days, from the seeds of wine grapes to baobab to roasted crickets. It’s no surprise that coffee flour has made its entrance, too.

What is surprising is the different types of coffee flours available on the market today.

Brandeis' coffee flour uses a less-baked coffee bean. Typically, a bean is roasted until its turns brown. But Brandeis' Dan Perlman says this roasting process reduces the amount of CGA – the beneficial ingredient – in the coffee.

Brandeis roasts the bean at a low temperatures and for a very quick period of time, then freezes it with liquid nitrogen and pulverizes it into a wheat-colored powder, which has a nutty and mild taste.

The flour is mixed with other flours before use.

Another developer – this one actually called CoffeeFlour – has created a flour that is not made from coffee beans themselves. Former Starbucks engineer Dan Belliveau’s coffee flour is made from the surrounding fruit of the bean – known as coffee cherry - that often gets dumped into rivers or left in heaps to rot.

It does not taste like coffee but has floral, citrus and roasted fruit notes. It can be used in baked products like breads, cookies and muffins, and other foodstuffs like pasta and sauces.

Lastly, the description provided to the USPTO for Empire Technology Development’s coffee flour is "Processed coffee cherry skins, pulp and pectin for use, alone or in combination with other plant and milk based products, as an ingredient in food and beverage products."

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