TTAB Finds LUKUMADES (Stylized) Merely Descriptive of Donuts and Food Services, But Not Jams and Jellies

Loukoumades are Greek pastries consisting of fried dough balls soaked in honey syrup and topped with cinnamon or walnuts. Close enough for the Board to uphold a mere descriptiveness refusal of the mark LUKUMADES in the stylized form shown below, for "doughnuts; pastry; crepes; confectionery flavored ices; chocolates; chocolate syrup; topping syrup; pancake syrup; honey; candy; coffee; tea; cocoa; cocoa products, namely, cocoa powder, cocoa spreads, cocoa drops, cocoa biscuits; cocoa mixes; fruit sauces; dough mix; dairy ice cream, ice milk and frozen yogurt" in International Class 30, and for “services for the preparation of food and drink; services for providing food and drink” in International Class 43. However, the Board reversed the same refusal as to the applicant's Class 29 goods: "yogurt drinks; beverages made from or containing milk; butter; milk; prepared fruits; fruit jellies; jams; milk products excluding ice cream, ice milk and frozen yogurt; dairy puddings, namely, white pudding." In re Lukumades AGD Limited, Serial No. 88844592 (January 25, 2022) [not precedential] (Opinion by Judge Christopher Larkin).

The applicant conceded, in light of the evidence submitted by Examining Attorney Ronald G. McMorrow, that "Greek donuts commonly known as loukoumades are fried dough balls soaked in honey syrup and topped with cinnamon or walnuts." Applicant’s use of the proposed mark in its "Brand Guidelines" confirmed that the proposed mark is a misspelling of the word "loukoumádes' for what it calls “Greek dough balls." The Board concluded that the word, if not generic for a type of pastry, at least describes a feature of "doughnuts" and "pastries." And since the proposed mark describes at least one item in the Class 30 identification of goods, a Section 2(e)(1) mere descriptiveness refusal is appropriate for all the goods in that Class.

The evidence also showed, and the applicant acknowledged, that "lukumádes" are the "specialty of the house" menu item that will be offered in the United States in the course of providing its “services for the preparation of food and drink” and “services for providing food and drink.”

The applicant maintained that the stylization of the proposed mark makes it merely suggestive for the Class 30 goods and the Class 43 services. It argued that "the two Greek letters that surround the Roman letter 'E' at the end of the mark make the mark, as a whole, a mystery." The Board saw no mystery.

Applicant’s arguments necessarily assume unfamiliarity with the Greek letters Δ (delta) and Σ (sigma) on the part of United States consumers of the goods and services identified in the application. There is no support in the record for this assumption. We take judicial notice that the United States Department of State has estimated that as of August 12, 2021, “three million American residents of the United States claim Greek descent,” and that “[t]his large, well-organized community cultivates close political and cultural ties with Greece.” This “large, well-organized community” of Greek-Americans with close “cultural ties with Greece” surely would be a prime target of Applicant’s business in the United States, whose “signature” product is what the article about Applicant’s Athens store calls “Greece’s all-time classic desert,” and “the beloved Greek dessert from which [Applicant] takes its name.” Even assuming varying degrees of knowledge of the Greek language among Greek-Americans in the United States, it is likely that the vast majority of Greek-American consumers who view Applicant’s proposed mark containing two Greek letters will understand the mark to be the word “Lukumádes.”

Moreover, American consumers not of Greek descent "will at least be able to recognize the Greek letters Δ and Σ in Applicant’s proposed mark and use them, together with the Roman letters that proceed them, to read the mark as 'LUKUMÁDES.'"

As to the Class 29 goods, the USPTO failed to make a prima facie case that applicant's proposed mark is merely descriptive of any of the goods.

And so, the Board affirmed in part and reversed in part.

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TTABlogger comment: I read the mark as LUKUMAAEE, but then I'm not Greek\.

Text Copyright John L. Welch 2022.