Monday, February 06, 2006

"FREEDOM FRIES" Not Merely Descriptive of French Fries, Says TTAB (Citably)

Because of a lack of "significant evidence" of descriptiveness, the Trademark Trial and Appeal Board, in its sixth citable decision of 2006, reversed a Section 2(e)(1) refusal to register the mark FREEDOM FRIES for "frozen French fried potatoes" (FRIES disclaimed). In re Grand Forest Holdings Inc., 78 USPQ2d 1152 (TTAB 2006).

The Examining Attorney contended that, after the French criticized the invasion of Iraq by the United States in 2003, "restaurants around the United States, as well as restaurants and snack bars of the United States House of Representatives at the order of several members of the House, substituted the designation 'freedom fries' for French fries as a symbolic gesture of displeasure with the government of France." Because of the resulting publicity, "the purchasing public would recognize the designation FREEDOM FRIES as an alternate, albeit new, descriptive name for French fried potatoes."

Applicant argued that the PTO's evidence showed no such thing: "The pertinent articles of record were all written during a two month time-span, two years ago, at the start of the war and even these articles evidence the unwillingness of the consuming public to adopt the terminology." [Emphasis in original].

The Board reviewed the Examining Attorney's "numerous references," finding the most illuminating one to be an entry in Wikipedia. [TTABlog comment: since Wikipedia is an on-line encyclopedia that may be edited by anyone, how can the Board cite it as a reliable reference?] Applicant pointed to several restaurant menus (e.g., those of McDonald's, Burger King, and Wendy's) on which the name of French fries has not been changed. [TTABlog note: In Boston, however, "New York Strip Steak" has been replaced by "Beantown Beefsteak"].

The Board concluded that it could not agree with the PTO that the evidence of the "renaming of French fries has been considerable" or that there is a "current trend of renaming French fries as 'freedom fries.'"

"While undoubtedly there was a movement underway at one point to change the name of French fries, we have little evidence that would let us conclude that the effort has met with much success. A few press releases, news stories, and a handful of examples of restaurant menu changes are simply not sufficient evidence to support a refusal to register the term as merely descriptive."

Finally, the Board noted that it resolved its doubts in applicant's favor.

TTABlog comment: Sacré bleu! Everyone knows that "freedom fries" are French fries, don't they? Ten years from now (assuming the U.S. is out of Iraq by then) the term may not have that meaning, but it surely does today. While it may be true that restaurants still use the term "French fries" on their menus, that doesn't mean that "freedom fries" isn't recognized by the public as meaning "French fries."

Okay, I understand that the Board is saying that the PTO's proofs weren't good enough here, but it still annoys me that this supposed mark is going to be registered.

One more TTABlog comment: Late in 2004, the Board found the mark NOT MADE IN FRANCE to be merely descriptive of clothing not made in France. (TTABlogged here). Are the two decisions consistent? Unrelated? Does anyone care?

Text Copyright John L. Welch 2006


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