Tuesday, February 13, 2007

Precedential No. 9: TTAB Says "Hail, No" to "CAESAR!CAESAR!" for Salad Dressings

The Board wasted little time in finding the word CAESAR to be merely descriptive of salad dressings. But what about CAESAR!CAESAR!? After all, PIZZA!PIZZA! is registered!!!! Not so fast!, said the Board. Not ... so ... fast! In re Litehouse, Inc., 82 USPQ2d 1471 (TTAB 2007) [precedential].

Applicant's Caesar dressing

Flinging aside the two PIZZA! registrations, the Board affirmed the PTO's 2(e)(1) refusal to register CAESAR!CAESAR!, finding it merely descriptive of salad dressings. The Board noted the settled law that "a mark's mere repetition of a merely descriptive word does not negate the mere descriptiveness of the mark as a whole." Likewise, the precedents are legion that the addition of exclamation point or points does not negate mere descriptiveness.

But what about the PIZZA!PIZZA! registrations, one for "restaurant services" and one for "pizza for consumption on or off the premises"? Isn't that mark just like CAESAR!CAESAR!?

So what? said the Board. Under In re Nett Designs, Inc., 57 USPQ2d 1564, 1566 (Fed. Cir. 2001), it must assess each mark "on the record of public perception submitted with the application." Prior third-party registrations have "little persuasive value." Uniform treatment is a goal, but the TTAB has to base its determination on the evidentiary record of the case at hand.

Applicant Litehouse tried one last toss of the legal salad: it urged that, by refusing registration of CAESAR!CAESAR! after allowing registration of two PIZZA!PIZZA! marks, the PTO had violated Applicant's constitutional rights under the equal protection component of the Due Process Clause of the Fifth Amendment. The Board disagreed, quoting In re Boulevard Entertainment, Inc., 67 USPQ2d 1475, 1480 (Fed. Cir. 2003):

"Even if the PTO had previously allowed a mark similar to Boulevard's marks to be registered, that would not give Boulevard an equal protection right to have its mark registered unless the agency acted pursuant to some impermissible or arbitrary standard. *** The fact that, whether because of administrative error or otherwise, some marks have been registered even though they may be in violation of the governing statutory standard does not mean that the agency must forgo applying that standard in all other cases."

And so, the Board constitutionally affirmed the Section 2(e)(1) refusal to register.

Text Copyright John L. Welch 2007.


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