TTABlog Test: Is MUSH Generic for Oat-Based Cereals?

The USPTO refused to register the proposed mark MUSH for "Ready-to-eat cereals; Breakfast cereals; all the foregoing made in whole or significant part of oats," finding the term to be generic for the goods. Applicant Mush Foods argued that none of its competitors use "mush" to name their goods, and further that the evidence failed to show that consumers primarily use the term generically. How do you think this came out? In re Mush Foods, Inc., Serial No. 97315576 (March 28, 2025) [not precedential] (Opinion by Judge Thomas W. Wellington).

The Board, as usual, found the genus at issue to be defined by the identification of goods in the application. The relevant purchasers include "members of the general public looking to purchase 'ready-to-eat cereals' or 'breakfast cereals' made entirely or in significant part of oats."

Examining Attorney William Verhosek submitted a dictionary definition of "mush": "a thick porridge made with cornmeal boiled in water or milk." The Board took judicial notice of the definition of "porridge": "a soft food made by boiling oatmeal or another cereal in water or milk." Another dictionary defined "oatmeal mush" as "porridge made with oatmeal."

The Examining Attorney also submitted Internet evidence showing third-party use of the term "mush" in connection with food items made of oatmeal."

The Board pointed out that evidence of generic use of a term may be relevant, but not necessary "where, as here, other evidence shows that consumers will understand the term to refer to the genus."

Put plainly, the definitions establish that “mush” is a type of food made by boiling oatmeal or other cereal grains. Indeed, the last definition discussed above makes clear that there is “oatmeal mush,” which is a type of “porridge made with oatmeal.” Applicant’s goods, which include “breakfast cereals … made in whole or significant part of oats,” are clearly encompassed by these definitions.

The Internet recipes for different types of “mush” or “oatmeal mush,” were "highly probative for purposes of determining the general public’s understanding as to the meaning of 'mush' in connection with the goods identified in the application." This evidence also undermined the applicant's assertion regarding the lack of evidence that consumers use or understand the term “mush” in the generic sense.

Although [MUSH] may be a less common term today than it once was, and it frequently is associated with porridge now, the word “mush” remains in use today to refer to a food item that may be made of oats, such as the goods identified in the application. “Mush” is a common name that the relevant public understands as primarily describing the genus of goods, which are ready-to-eat cereals or breakfast cereals made of oats, and thus it is legally incapable of indicating the source of the goods.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: Mush to do about nothing? Not for this applicant.

Text Copyright John L. Welch 2025.