## Facts

- Boston Beer applied to register the slogan “The Best Beer in America” on the Principal Register for “beverages, namely beer and ale,” asserting use since 1985 and acquired distinctiveness under 15 U.S.C. § 1052(f).
- The USPTO refused registration as merely descriptive, relying on articles showing the phrase used as a quality claim for superior beers, including use by parties other than Boston Beer.
- The TTAB found the phrase highly laudatory and merely descriptive (not generic) and concluded competitors should be free to use similar superlatives; it also found Boston Beer’s § 2(f) showing insufficient.
- Boston Beer’s evidence of acquired distinctiveness included:
  - Annual advertising exceeding $10 million and annual sales around $85 million.
  - Approximately $2 million in promotions that included the slogan.
  - An affidavit from founder James Koch asserting the slogan functioned as a source identifier due to extensive promotion and sales since 1985.
  - A competitor advertisement referencing “the beer that bested ‘The Best Beer in America,’” offered to show recognition of the slogan as Boston Beer’s mark.
- Boston Beer appealed the TTAB’s refusal to the Federal Circuit.

## Issues

1. Whether “The Best Beer in America” is merely descriptive and laudatory for beer and ale.
2. Whether Boston Beer proved acquired distinctiveness under 15 U.S.C. § 1052(f) sufficient to permit registration on the Principal Register.
3. Whether substantial evidence supported the TTAB’s findings supporting refusal of registration.

## Decision

- The Federal Circuit affirmed the TTAB’s refusal to register the slogan on the Principal Register.
- The court held the slogan is a highly laudatory, descriptive phrase that directly claims product superiority rather than indicating source.
- The court held Boston Beer’s evidence did not establish that consumers perceive the slogan as a trademark rather than advertising self-praise.
- The court agreed that granting exclusive rights in the superlative phrase would hinder competitors’ ability to describe their own products’ quality.
- Applying substantial-evidence review to the TTAB’s factual determinations, the court found the record supported the Board’s descriptiveness and no-secondary-meaning findings.

## Legal Principles

- A slogan that directly and unambiguously touts product superiority is merely descriptive because it describes an alleged quality or merit, not source.
- Highly laudatory and superlative marketing phrases face a strong descriptiveness bar and require a substantial showing of acquired distinctiveness for Principal Register protection.
- Evidence of large sales and advertising expenditures, without stronger proof of consumer source association, may be insufficient to establish acquired distinctiveness for a highly promotional phrase.
- Widespread third-party use of the same or similar superlative language undermines a claim that the public uniquely associates the phrase with a single producer.
- TTAB factual findings on descriptiveness and acquired distinctiveness are reviewed for substantial evidence; legal conclusions are reviewed de novo.

## Conclusion

The Federal Circuit upheld refusal to register “The Best Beer in America” because the phrase is a descriptive, laudatory claim of superiority and Boston Beer did not prove that consumers had come to recognize the slogan as a source identifier warranting exclusive trademark rights.


In re The Boston Beer Co. Ltd. P’ship, 198 F.3d 1370 (Fed. Cir. 1999)