Tuesday, June 22, 2010

Test Your TTAB Judge-Ability: Is "LEMONADE" Merely Descriptive of Restaurant Services?

Flower Restaurant Group, Inc. applied to register the mark LEMONADE for “restaurant services; catering; self service restaurants.” The Examining Attorney deemed the mark merely descriptive and refused registration under Section 2(e)(1), arguing that Applicant highlights lemonade as a “house specialty.” Applicant contended that the mark is merely suggestive, evoking “an earlier time in a consumer’s life, when she was a kid, when she was focused on having fun and (in retrospect), when life was easy.” How do you think this one came out? In re Flower Restaurant Group, Inc., Serial No. 77455669 (June 2, 2010)[not precedential]

The Examining Attorney pointed to Applicant’s website, which draws attention to its lemonade: “Once you’ve filled your tray with quirky, mouthwatering morsels, pay up at the central stand, where you’ll select from the several varieties of the requisite lemonade. Favorites are rosemary, watermelon and pink ginger….” [Not so popular are spinach, onion, and licorice - ed.]

Applicant contended that the décor of its restaurant reflects the symbolic role of lemonade: “it is evocative of a grade-school cafeteria.” Applicant further noted that, although its menu includes four blends of lemonade, it also includes other beverages and a selection of food items.” [Why on earth would anyone who wanted to go out for dinner, choose a place reminiscent of a grade school cafeteria? - ed.]

The Board didn’t buy what Applicant was offering. It was not convinced that the word “lemonade” by itself evokes the meaning that Applicant suggested, and instead it agreed with the Examining Attorney that LEMONADE is merely descriptive of the services. “[I]t is enough that the term describes one significant feature of the services.”

Applicant submitted third-party registrations for MUSTARD CAFE, KETCHUP, HONEY, CITRUS, and FIG & OLIVE, all for restaurant or related services, but the Board poo-pooed that evidence, since the Board must decide each case on its unique facts and the record before it.

Furthermore, we do not find any of the marks applicant references analogous to LEMONADE. For example, it is not reasonable to conclude that either mustard or ketchup would generally serve as a featured attraction in a restaurant. Accordingly, we reject that argument. [I believe that the legendary MUCKY DUCK mustard originated at a restaurant of the same name. So perhaps mustard may be a “featured attraction” at a restaurant. - ed.]

And so the Board affirmed the refusal.

TTABlog comment: Having recently imbided about 30 ounces of “lemonade” in a short period of time in preparation for a certain medical procedure, I’m currently not very interested in anything having to do with LEMONADE.

Text Copyright John L. Welch 2010.


At 4:10 PM, Anonymous Anonymous said...

I don't think the case is as clear cut as it appears on the surface. My understanding of the "test" the applicant referred to (based on the three decisions cited), is that the name for a food items served in a restaurant will be descriptive for restaurant services if it 1) is generic for the food item, and 2) is a specialty of the house. While it's not a bright line test, it's referred to pretty consistently in the case law. The cases cited go into pretty great detail about percentages of the food item sold that make it a specialty of the house or not. In one of the cases, CHAMPAGNE was not descriptive of restaurant services even where the restaurant served Champagne, and where Champagne was deemed generic for a style of sparkling wine, because the restaurant did not specialize in selling Champagne.

I dunno, I think it's a tricky argument to make, but not an impossible one.


Post a Comment

<< Home