Wednesday, April 21, 2010

TTAB Finds "FULLY COOKED" Generic for ... Guess What?

The TTAB granted a petition for cancellation of a registration for the term FULLY COOKED for "prepared entrees consisting primarily of meat," finding it to be generic. The Board acknowledged that "fully cooked" is not the name of a food product but rather an adjective that "describes a category of processed foods," a designation that should be freely available for use by competitors. Eddy Packing Co., Inc. v. HEB Grocery Company, Cancellation No. 92041545 (April 15, 2010) [not precedential].

The Board found the genus of the goods to be "prepared foods," not just meat entrees, noting that the genus may be broader or narrower than the identification of goods.

The relevant public here comprises "ordinary consumers, institutional purchasers, food retailers and meat companies."

As to the public perception of the term "fully cooked", the Board took judicial notice of several pertinent definitions. It also looked at the way "fully cooked" is used by Respondent, by Petitioner, and by third parties. Petitioner provided numerous Internet documents showing use of "fully cooked" in connection with prepared foods. Six trademark registrations and eleven applications include "fully-cooked" within the identification of goods, and nine registration include disclaimers of "fully cooked." Five utility patents use the term in connection with a type of meat preparation."

The Board concluded that FULLY COOKED "identifies a type or category of prepared foods" and that "the relevant public understands the term 'fully cooked' to refer to that class of products which include 'prepared entrees consisting primarily of meat.'"

The commonly understood meaning of the term "fully cooked," petitioner's uses and third-party uses, all demonstrate that purchasers understand that the term "fully cooked" identifies a category of food processing. However, it is respondent's own use of that term, as well as the testimony of respondent's expert witness, that really cooks respondent's goose. Judith Quick clearly identifies "fully cooked" as a category of processed foods and she testifies that every competitor should be able to use it if it meets the labeling requirements.

And so the Board found the term to be generic, and it granted the petition for cancellation.

TTABlog comment: Highly descriptive? No doubt. Generic? What do you think?

Text Copyright John L. Welch 2010.


At 10:44 AM, Blogger Pamela Chestek said...

Heck yeah, generic. Filed in typed form? A waste of an application fee. WYHF?

At 4:47 PM, Anonymous Marta Randall said...

Generic? I dunno. What precisely is a "fully cooked?" But yes, a waste of an application fee.

At 5:00 PM, Blogger tim maguire said...

Descriptive, yes. Generic usually refers to a noun or verb but is not clearly inappropriate for "fully cooked" as used to describe an item that is fully cooked.

Not sure why the emphasis on meat, though. Plenty of non-meat items are cooked and therefore, able to be fully cooked.

At 7:50 PM, Anonymous Anonymous said...

Definitely a generic adjective, similar to "DISINFECTIBALE" for nail files, "CHOCOLATE FUDGE" for sodas, "ATTIC" for sprinklers, etc.

At 8:35 PM, Blogger Ron Coleman said...

Well, Marta is onto something. It's not so obvious what is "fully cooked", in fact.

But it's generic, of course. It's not just a waste of an application fee, either. It's a waste of someone's job, I'd think.


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