TTAB Finds PALAPA to be Merely Descriptive of Event Venue Services

The USPTO refused to register the proposed mark PALAPA for "event venue services ...," deeming the mark to be merely descriptive of the services, and lacking acquired distinctiveness. Dictionary definitions and evidence of third-party usage of the term established that a palapa is an open-sided structure with a thatched roof. Applicant's venue fit the bill. In re Upper Buena Vista Management LLC, Serial No. 97976656 (October 30, 2025) [not precedential] (Opinion by Judge Mark Lebow).

Applicant Upper Buena Vista Management started off on the wrong foot by asking in its appeal brief that, if its appeal were denied, the mark be registered on the Supplemental Register. The Board said "no dice," pointing out that an application may be amended," if at all, only in accordance with Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g), which states, '[a]n application which has been considered and decided on appeal will not be reopened except for the entry of a disclaimer ... or upon order of the Director ....'"

Next, Buena Vista requested that the Board "incorporate by reference the exhibits and specimens" submitted to the Office in response to various Office Actions. No can do, said the Board: "Applicant’s attempt to incorporate previous arguments made during prosecution, but not presented in its brief on appeal, is improper. While we, of course, review the record and Applicant’s brief, we will not search the file for arguments made by Applicant during examination to address matters not raised in its brief."

With regard to the substantive issues, Examining Attorney Maureen Reed submitted several dictionary definitions of "palapa, including: "A structure, such as a bar or restaurant, in a tropical resort, that is open-sided and thatched with palm leaves." (American Heritage Dictionary). Buena Vista admitted that its venue is a structure with a thatched roof. Photographs of the venue (see photo above) showed open sides, and BUena Vista promoted its venue as offering an "open-air experience."

The Examining Attorney also provided Internet evidence showing that "the word ‘palapa’ is often used in connection with similar event venues and social function facilities to mean that the venue or facility has a thatched roof and open sides...."

Buena Vista made a number of unsuccessful arguments against the refusal: that a "palapa" is a dwelling; that a palapa must be open on four sides; that the dictionary definitions are too vague; and that none of the third-party evidence shows use of "palapa" to describe a third-party’s banquet or social function facilities, or pavilion facilities used for concerts or exhibitions. As to the last argument, the Board pointed out that a term can be merely descriptive even if an applicant is the first and only user of the term.

The evidence thus establishes that PALAPA describes a significant characteristic or feature of the services—namely, that the services are provided in a palapa. The lack of exact alignment with every detail of the recitation of services is irrelevant, as the mark PALAPA immediately conveys that the services are provided in a palapa structure, a central feature of Applicant’s services.

Turning to Buena Vista's Section 2(f) claim, its evidence was unimpressive. It was unclear when Buena Vista began using the term, and the social media coverage that it claimed were merely applicant's own social media posts or those of customers who had visited the venue. Moreover, its use of "palapa" did not appear to be substantially exclusive. "Exact identity between the third-party services and an applicant’s recitation of services is not required; use in analogous and overlapping fields are probative if they expose relevant consumers to competing sources."

The Board found that "Applicant has failed to demonstrate that the highly descriptive word PALAPA has acquired distinctiveness for its identified services. Applicant has not shown that “consumers have come to associate the mark with a single source." And so, it affirmed the refusal.

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Text Copyright John L. Welch 2025.