Tuesday, November 17, 2015

WYHA? "CALIBURGER" Merely Descriptive of Restaurant Services, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register the mark CALIBURGER, deeming it merely descriptive of restaurant services. Examining Attorney Jennifer D. Richardson submitted evidence showing that CALI is a common abbreviation for California, that a "California burger" is a particular type of hamburger (usually topped with lettuce and tomato), and that applicant's restaurants feature California burgers. Would you have appealed? In re Caliburger, Serial No. 85810919 (November 12, 2015) [not precedential].

Applicant did not dispute that “Cali” means California, or that a “California-style burger” is a type of burger. It contended, however, that the preferred term used by restaurants is “California-style burger” and not “California burger,"' and anyway “Cali” is not commonly known as “California” in connection with a type of burger. Additionally, Applicant argued that its CALIBURGER burgers are not featured food items at its restaurants and that the term “Cali” in its mark suggests a “California lifestyle” and not a California-style burger.

The Board did not award applicant any style points for that last argument. It observed that in some contexts, "Cali" may bring to mind a California life style, but here Cali is followed by the word burger. "In the context of restaurants selling California burgers, the mark as a whole will
immediately be perceived as an abbreviation for a 'California burger,' and will not impart the connotation of a 'California lifestyle.'"

Moreover, the evidence showed that applicant does indeed feature California burgers at its restaurants. Finally, evidence of prior registration of a few "CALI"-formative marks was unpersuasive, the Board once again observing that each case must be decided on its own factual record.

Finding that CALIBURGER immediately informs the consumer as to a characteristic or feature of applicant's services, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Well, would you have appealed? FWIW: I grew up in Chicago and Champaign-Urbana, where I learned to love Illiburgers: featuring ketchup, mustard, and raw onion.

Text Copyright John L. Welch 2015.


At 9:57 AM, Anonymous Anonymous said...

If the TTAB is right in this decision, the concept of a suggestive mark is indeed dead and buried.

At 1:23 PM, Blogger TMAttorneyHeller said...

Not being from California, I did not know that burgers with lettuce and tomato had a special name.

At 8:51 PM, Blogger Unknown said...

Have lived in the San Francisco bay area for 30 years. I never heard anyone refer to a burger as a Caliburger. No self respecting San Franciscan would would call a burger a Friscoburger. I'd say marks and decisions are getting nuttier by the day...


Post a Comment

<< Home