Friday, August 05, 2005

TTAB No Fan of "COUNTRY MUSIC CAFE" -- Finds it Merely Descriptive

TTAB 101 teaches us that determining whether a mark is merely descriptive under Section 2(e)(1) is not a "guessing game." In other words, the fact that one cannot guess what the goods are from the mark alone does not mean the mark in question isn't descriptive. The mark must be evaluated in the context of the applied-for goods or services. [See recent TTABlog discussion here]. But what if you can guess? What services would you guess are offered under the mark COUNTRY MUSIC CAFE? Right! The Board didn't apply this "reverse-guessing game" approach, but it did find the mark merely descriptive of "nightclub and restaurant services" in In re Country Music Café, Inc., Serial No. 75909681 (July 28, 2005) [not citable].

country music café?

Examiner Mary Rossman soundly supported her refusal to register with dictionary definitions of "country music" and "café," and with excerpts from NEXIS and Internet articles that use the phrases "music café" and "country music café" descriptively. The Applicant acknowledged that its restaurant concept "is designed to provide customers with an opportunity to dine in [an] environment that enables them to experience the look, sound, feel and excitement of the Country M[usic] segment of the entertainment industry."

The Board found that "a 'country music café' immediately describes a coffeehouse, restaurant or bar featuring popular music based on the folk style of the southern rural United States or on the music of cowboys in the American West." It also found that Applicant "offers country music as a feature or characteristic of its services."

Thus it concluded that:

"COUNTRY MUSIC CAFE immediately describes, without conjecture or speculation, a significant characteristic or feature of applicant's services, namely, that country music is a theme of applicant's café."

Applicant argued, with absolutely no success, that its mark "does not convey ... immediate knowledge of Applicant's services to a potential consumer" because "nothing about the mark immediately indicates exactly what services the Applicant provides." The weakness of this argument was reflected in Applicant's long-winded but lame explanation that:

"Applicant's mark could refer to country music related food or favorite foods of country musicians. It could be a facility for live country music, classic country music recorded decades ago, modern country music recorded this year, or even bluegrass country music. Moreover, it could be that country music was not played at all and the only relation to country music is memorabilia on the walls. In fact, the service provided could be a combination of any or more of the above."

The Board tersely noted that "Applicant's arguments are not well taken," and it proceeded to affirm the refusal to register.

Birthplace of Woody Guthrie
Okemah, Oklahoma

TTABlog comment: Actually, I think the "guessing game" approach should be a test for genericness: if you can guess the goods or services from the "mark" alone, it's generic. For example, what's a SCREENWIPE? A wipe for screens. [found to be generic in In re Gould.] Under my test, COUNTRY MUSIC CAFE would be generic.

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


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