TTABlog Test: Is "SOUL FOOD MARKET" Merely Descriptive of Grocery Store Services?

In this year's ninth appeal from of a mere descriptiveness refusal (with no reversals yet), the Board reviewed a Section 2(e)(1) refusal of SOUL FOOD MARKET for "online retail grocery store services; retail grocery stores." Applicant New Africa Ventures argued that “SOUL FOOD has no direct meaning in relation to its actual identified services, as the services make no reference to 'soul food'." It also contended that soul food is an "ethnic cuisine" – where "'[c]uisine’ is defined as a style of cooking" – and "cuisine involves cooking and restaurant services." '[T]here is no indication that there will be any cooking under Applicant’s recitation of [grocery store] services," and so the proposed mark does not disclose any information with particularity. How do you think this came out? In re New Africa Ventures, Inc., Serial No. 90330813 (February 8, 2023) [not precedential] (Opinion by Judge Robert H. Coggins).

Examining Attorney Drew Ciurpita maintained that the evidence demonstrated that SOUL FOOD “refers to traditional southern African American foods” and MARKET “refers to a retail store that sells agricultural produce.” “When combined, this wording refers to a retail store featuring traditional southern African American foods” and thus “merely describes a feature” of grocery stores.

The Examining Attorney relied on dictionary definitions and a Wikipedia entry for "soul food" and on several website excerpts that use the term SOUL FOOD to describe a category of food sold at grocery stores. The Board took judicial notice that "cuisine" is not only a style of cooking, but is also "food" and "fare."

The multiple dictionary definitions alone establish that SOUL FOOD is merely descriptive of traditional southern African American food. The record further demonstrates that soul food items are sold in grocery stores, and as such SOUL FOOD is merely descriptive of a feature and characteristic of grocery store services.

Of course, the word "market" is merely descriptive of a feature and characteristic of grocery store services. "In the context of the services identified in the application, the phrase 'soul food market' on its face refers to a retail establishment that sells soul food."

Applicant insisted that "the meaning of 'soul food' in connection with grocery stores is different than it is for actual cuisine, in that the first impression refers to [Black] culture and ownership." The Board was unmoved.

Accepting Applicant’s reasoning of culture and ownership, arguendo, the possibility that SOUL FOOD could have multiple connotations when used in the proposed mark SOUL FOOD MARKET is not controlling on the issue of whether Applicant’s mark is merely descriptive of Applicant’s identified services. *** "It is well settled that so long as any one of the meanings of a term is descriptive, the term may be considered to be merely descriptive.”

Finally, applicant asserted that any doubt as to registrability should be resolved in its favor. The Board, however, had no doubt as to the proposed mark's mere descriptiveness. Concluding that "the combination SOUL FOOD MARKET does not "convey[] any distinctive source-identifying impression contrary to the descriptiveness of the individual parts,'" the Board affirmed the refusal.

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Text Copyright John L. Welch 2023.