Wednesday, June 22, 2005

TTAB Deems "EMBASSY CHEFS" Merely Descriptive Of TV Shows Featuring Embassy Chefs

No surprise here. The Board affirmed a Section 2(e)(1) refusal to register the mark EMBASSY CHEFS, finding it merely descriptive of "providing television programs in the field of culture and cuisine." In re Nostalgia Network, Inc., Serial No. 78147904 (June 10, 2005) [not suitable].

Norway embassy chef Frode Selvaag

The Examining Attorney submitted printouts from the Nostalgia Network website describing Applicant's television show as follows: "Tour Washington D.C.'s famous Embassy Row.... Then meet the embassy's chef and find out how food ties into the national culture as they [sic] prepare a menu fit for a state dinner." Nonetheless, Nostalgia Network rather bizarrely contended that "the fact that a chef appears to demonstrate how to prepare the cuisine is ancillary to Applicant's services," and it argued that the mark should be deemed merely suggestive. The Board found that contention unpalatable.

Nostalgia also argued that this case is similar to Stork Restaurant, Inc. v. Sahati, 76 USPQ 374 (9th Cir. 1948), but that argument laid an egg. The Board noted the court's finding that:

"'The Stork Club' is a trade name that, in the language of the books, might be described as 'odd,' 'fanciful,' 'strange,' and 'truly arbitrary.' It is in no way descriptive of the appellant's night club, for in its primary significance it would denote a club for storks. Nor is it likely that the sophisticates who are its most publicized customers are particularly interested in the stork."

In contrast, the Board ruled that "[t]here is nothing odd or fanciful about referring to a show that features embassy chefs as EMBASSY CHEFS. As such, the term EMBASSY CHEFS is merely descriptive of applicant's services, and we affirm the examining attorney's refusal."

The Board also affirmed a refusal under Section 1051(a)(1), based upon Applicant's failure to submit an acceptable specimen of use. The Examining Attorney contended that Nostalgia's specimen "is an announcement or informational sheet about future services." The specimen [which is available for perusal via the PTO's Trademark Document Retrieval (TDR) database], begins with following statement before proceeding proceeds to describe what the show will feature:

"Goodlife TV Network proposes a unique program designed to foster understanding and celebrate the varied cultures of the world we share through the fellowship of food."

The Board agreed with the PTO that Nostalgia's specimen refers to future programming and not to services being offered at the time. The Board pointed out that the mere adoption of a mark is not sufficient; a service mark must be used in the sale or advertising of services. It noted, moreover, that there was no evidence that Nostalgia's entertainment services were even in existence at the time it filed the subject use-based application.

Royal Norwegian Embassy
Washington, D.C.

TTABlog comment: On second thought, there is something surprising here. It's surprising that this applicant even bothered to appeal.

Text ©John L. Welch 2005. All Rights Reserved.


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