Use of Mark for Menu Item Insufficient for Restaurant Services Application, Says TTAB
The Board affirmed a refusal to register the mark CHA CHA for restaurant services on the ground that Applicant failed to submit an acceptable specimen of use. The Board ruled that the applied-for mark served only to identify a menu item and did not function as a service mark for restaurant services. In re The Restaurant Company, Serial No. 77508734 (January 17, 2012) [not precedential].
The definition of "service mark" in the Trademark Statute requires that the mark "identify and distinguish" the services from those of others, and indicate the source of the services. A mark will be deemed to function as a service mark "only if purchasers will directly associate the asserted mark with the services in question."
Applicant's specimens of use (shown above) consisted of various promotional pieces [table tents? - ed.]. But, the Board noted, "a proposed mark that serves only to identify an item on a menu does not function as a service mark for restaurant services."
The Board agreed with Examining Attorney Jeffrey C. Coward that the mark CHA CHA, as it appear on the specimens, identifies only a particular food items (wings) and not restaurant services.
[P]urchasers would not directly understand and perceive the mark as it appears on the displays as a source-indicator for the restaurant services. This is so, even though purchasers obviously are aware that applicant is rendering restaurant services because they are in the restaurant when they encounter the mark and can purchase wings while eating in the restaurant. Such a generalized association in the purchaser's mind between the product mark and the restaurant services does not suffice as the requisite “direct association” between the mark and the services which would make the asserted mark a service mark for the restaurant services themselves.
And so the Board affirmed the refusal to register.
Text Copyright John L. Welch 2012.