Thursday, September 24, 2009

"MEDITERRANEAN MELT" Not Merely Descriptive of Sandwiches, Says TTAB

Applicant Dikran M. Iskenderian came up a winner in his TTABattle to register the mark MEDITERRANEAN MELT for "sandwiches, panini," convincing the Board to reverse a Section 2(e)(1) mere descriptiveness refusal. Although the Board agreed that MELT must be disclaimed, it found the word MEDITERRANEAN, as applied to food, to be too ambiguous to be descriptive. In re Dikran M. Iskenderian, Serial No. 77266353 (September 22, 2009) [not precedential].

Applicant Iskenderian described the MEDITERRANEAN MELT as his sandwich as "a pressed sandwich which consists of cheese and basturma. Basturma is a highly seasoned air-dried cured beef. Beef and preferably veal is the most common meat used for basturma and it is prepared by pressing the meat to squeeze out its water, then covering it with a cumin paste prepared with crushed cumin, garlic, hot paprika and air-drying it. It can be served as a mezze in thin slices, usually uncooked."

Dictionary definitions established "melt" to mean a sandwich with melted cheese. Iskenderian did not contest the matter, and so the Board required a disclaimer of MELT.

As to MEDITERRANEAN, the Examining Attorney provided a definition of the term, as well as three Internet excerpts showing use of "mediterranean melt" or variations thereof for sandwiches. However, the sandwiches described were "vastly different," leading the Board to conclude that MEDITERRANEAN is "ambiguous" as applied to food.

The evidence of record indicates that the term “MEDITERRANEAN” refers to the large geographic region surrounding the Mediterranean Sea and encompassing many countries and cultures. Indeed, as applied to food, the term is ambiguous, as there are at least three distinct cuisines, each employing many different ingredients and cooking techniques. (Dec. 5, 2007). At most, MEDITERRANEAN can be said to be broadly suggestive of certain types of ingredients and cooking styles, but as the application of the term "MEDITERRANEAN MELT” to vastly different sandwiches demonstrates, the term MEDITERRANEAN is in no way immediately descriptive of the features of sandwiches in general or of a particular sandwich....

And so the Board reversed the refusal, subject to the disclaimer of MELT.

Text Copyright John L. Welch 2009.


At 8:26 AM, Anonymous Anonymous said...

John--WYHA this case?

At 1:35 PM, Blogger Catherine said...

Seems pretty descriptive to me, in that the term Mediterranean Melt conveys the information that these "melts" contain Mediterranean ingredients, generally understood by me to be Greek. I'd say it should sit on the Supplemental until it proves itself worthy, i.e. distinctive.

At 6:55 PM, Blogger John L. Welch said...

When I first looked at the case, I though applicant had lost, and I was thinking of making it a WYHA. Take a look at the specimen of use, where MEDITERRANEAN MELT appears just like a bunch of other generic/descriptive terms on the menu.

At 12:22 PM, Blogger Sanjiv Sarwate said...

Wait, "Mediterranean Melt" is not descriptive but "E-LEX" is? Seriously, do they just use a dartboard?

At 10:33 AM, Blogger Matthew Saunders said...

See also STEAK BOMB for "sandwiches". That one sailed right through with merely a disclaimer of 'steak'. Apparently the EA made it through college without ever experiencing the joy of a late night steak bomb.


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