TTAB Test: Sink Your Teeth Into This Section 2(d) "KABOBERY" Appeal

The USPTO refused to register the mark shown below for "Restaurant and catering services; restaurant services featuring middle-eastern cuisine" [KABOB, ORIGINAL, and 1976 disclaimed], finding the mark likely to cause confusion with the registered mark THE ULTIMATE KABOBERY for "restaurant services" [ULTIMATE disclaimed]. Applicant appealed. How do you think this came out? In re International Grill, Inc. dba Massis Kabob, Serial No. 86452464 (December 2, 2016) [not precedential].

The Examining Attorney maintained that KABOBERY is the dominant part of the cited mark, and the parties share this "unique and coined term." Applicant contended that its mark, when considered its entirety, is readily distinguishable from the cited mark.

The Board found that KABOBERY has a highly suggestive connotation. A "kabob is "a small piece of marinated meat used as for shish kebab" [sic], that is, "pieces of meat or vegetables grilled on a long thin stick, or slices of grilled meat served in pita bread." The suffix "-ery" connotes a place of producing or selling something (e.g., fishery, bakery, eatery). Adding the suffix “-ERY” to "KABOB" yields the highly suggestive term "KABOBERY": a place for producing or selling kabobs.

The Board concluded that the additional wording and design elements in applicant's mark suffice to differentiate it from the cited mark. MASSIS is clearly the dominant element of applicant's mark.

In connotation and appearance, the involved marks are differentiated, and they sound different. "The word ULTIMATE does not impart the commercial impression that Registrant’s KABOBERY is unique; rather, it touts the superiority of Registrant’s kabobery over other, lesser kaboberies." In sum, the different words and the design serve to distinguish the marks in appearance, sound, connotation and commercial impression.

Finding the dissimilarities in the mark to be dispositive, the Board reversed the refusal.

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TTABlog comment: How did you do, Bob? For some reason, I want to spell Kabobery with two "b's" before the "e."

Text Copyright John L. Welch 2016.