Friday, February 06, 2009

"CHED 'R' WEDGES" Merely Descriptive of Pet Treats, Says TTAB

Would you have appealed this one? The PTO refused to register the mark CHED 'R' WEDGES for "pet food; pet treats," finding the mark merely descriptive under Section 2(e)(1). What argument could you come up with on appeal? In In re Midwestern Pet Foods, Inc., Serial No. 78876346 (January 30, 2009) [not precedential], Applicant gave it a shot but was barking up the wrong tree.


Examining Attorney Jean H. Im maintained that "CHED 'R' is the equivalent to the word 'cheddar' in both sound and meaning, and describes the flavor of the goods." Moreover, pet food and treats "may be wedge-shaped." She concluded, rather logically, that "the two items combined as a unitary mark convey the commercial impression of pet food and pet treats that are cheddar flavored and wedge-shaped, or put another way, are cheddar flavored wedges."

Ok, so what does Applicant argue? Of course, one starts by asserting that the mark "is merely suggestive." Then what? Here, Applicant tried the following:

[T]he mark is "characterized by an alliterative, lilting cadence and growling sound elements formed between ‘CHED’ and ‘R’...[that] brings to mind the growl of a dog and also creates a pun on that fact that many American families treat their pets like members of the family ... the customer is purchasing this product in order to treat their pet to foods that could be enjoyed by humans.

The Board was not impressed.

The PTO's evidence included third-party websites advertising pet food and pet treats containing cheddar cheese or having cheese flavoring. Applicant's identification of goods is broad enough to encompass such goods.

Thus, upon viewing applicant's mark which is the phonetic equivalent of cheddar wedges, in connection with pet food and pet treats, consumers will immediately understand that the mark merely describes the type of food or treats, namely, that
they are wedge-shaped food or treats with cheddar cheese flavoring. No mental leap is required here.

Finally, as evidence for the mark's supposed suggestiveness, Applicant pointed to existing, third-party registrations for CHED'R'BITES for snack food, CHED-R-CUP for cheese sauce, and LIV'R'CRUNCH for pet food and treats. The Board, however, stated for the umpteenth time that "prior actions of examining attorneys in assertedly analogous situations are not binding." The Board must make its determination based on the record before it, "regardless of prior decisions by different examining attorneys."

And so the Board affirmed the refusal to register.


TTABlog comment: Reader FT would have appealed, because he believes that the TTAB's view of mere descriptiveness is out-of-whack: "The owner of the CHED 'R' WEDGES mark has created a unique commercial impression that should be protectable under the Lanham Act. The test in cases like this should not be whether people immediately know what the goods are; the test should be whether anyone else needs to use this mark to describe their goods. I don't think that anyone needs to use CHED 'R' WEDGES; they can use CHEDDAR WEDGES."

Good point, FT! I made a similar argument in trying to convince the Board that the mark THE TTABLOG is inherently distinctive (here). Perhaps the CAFC will have an opportunity to look at this case.

Text and Photograph Copyright John L. Welch 2001, 2007, 2009.


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