TTABlog Test: Is "TAC-O" Merely Descriptive of Food Seasonings and Cooking-Related Services?

The USPTO refused registration of the marks TAC-O and TAC-O LIFE in four classes - including food seasonings, related online retail store services, and entertainment services in the field of cooking - deeming TACO-O to be merely descriptive and requiring a disclaimer of TAC-O in the TAC-O LIFE application. Applicant Danos conceded the descriptiveness of "taco," but maintained that the hyphenated term "TAC-O" is a double entendre, suggesting "both a taco flavor profile and an outburst of overwhelming emotion, surprise or desire." How do you think this appeal came out? In re Danos Seasoning LLC, Serial Nos. 98316492 and 98470064 (September 30, 2025) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

Examining Attorney Angela Duong maintained that "TAC-O" is an intentional misspelling of the word "taco." She submitted a dictionary definition of "taco," excerpts from applicant's advertising ("Dan-O’s Tac-O™ is taco seasoning done right"), printouts from Yelp (e.g., a Mexican/Tex-Mex restaurant named Tac-O The Town), evidence of third-party use of the term "taco seasoning," and evidence of third-party use of "taco" for educational, entertainment, and restaurant services. The Board sided with the Examining Attorney:

Despite the addition of a hyphen between the O and the rest of the letters, we believe consumers encountering the proposed mark in the context of Applicant’s goods and services would perceive TAC-O as a mere misspelling of the word “taco.” “[A] descriptive term is not made arbitrary by hyphenating or misspelling it.” 

The Board found that TAC-O Taco” immediately conveys information about a feature or characteristic of applicant’s goods and services and is therefore descriptive of them. "The same is true of TAC-O."

With respect to Danos' double entendre argument, "[t]he multiple meanings that make an expression a double entendre must be readily apparent from the mark itself in the context of the applied-for goods and services." The Board was not persuaded that the second meaning urged by Applicant would be readily apparent to consumers encountering TAC-O for applicant's goods and services.

[T]he most direct reading of “O” in this context is as the last letter of the word “taco.” *** Although it is possible that consumers encountering TAC-O could take a “mental leap” and perceive an emotional interjection, this association is too attenuated, and the descriptive meaning of “taco” too direct, for any such double entendre to be readily apparent.

And so, the Board affirmed both the mere descriptiveness refusal and the disclaimer refusal.

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TTABlogger comment: Applicant Danos asked the Board to it allow it to file a statement of use and amend to the Supplemental Register, but the Board said, "no can do." Danos should have asked for a remand to the examining attorney in order to make that alternative proposal. Trademark Rule 2.142(g) states that “[a]n application which has been considered and decided on appeal will not be reopened except for the entry of a disclaimer under section 6 of the Act of 1946 or upon order of the Director…."

Text Copyright John L. Welch 2025.