TTAB Test: Is MEAT CANDY Merely Descriptive of Food Kiosk Services?

The USPTO issued a Section 2(e)(1) refusal of the mark MEAT CANDY, deeming the mark merely descriptive of "food kiosk services; mobile food kiosk services; mobile street vendor services featuring food and drink; street vendor services featuring food and drink." Applicant appealed, arguing that her mark is suggestive, rather than descriptive, because it is a "tongue in cheek reference to the desirability of certain meat products." How do you think this came out? In re Katakis, Serial No. 85901018 (December 2, 2015) [not precedential].

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Applicant asserted that "[c]andy, in common modern American English parlance, is a snarky reference to anything desirable." "Meat Candy," according to applicant, is "merely an expression of desirability of a product - i.e., so good it's like candy." Indeed, numerous website excerpts submitted by Examining Attorney Kara E. Jackson evidenced the laudatory or descriptive nature of "Meat Candy."

Applicant contended that MEAT CANDY is merely suggestive of her services because "many mental steps" are required to get from the mark to the services themselves. The Board, however, found the mark to be laudatory when considered in the context of applicant's services. The connotation of "desirability," as stated by applicant, is the "very connotation which makes the term laudatory ... (i.e., Applicant's service features food that is so good it is meat candy)."

In addition, many third-parties use the term for specific food products: for example, bacon, wrapped sausage, desserts, brisket ends. The Board therefore found that prospective customers "will readily understand that the applied-for mark describes a delicious meat specialty of Applicant's food services.''

The Board therefore affirmed the refusal to register.

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TTABlog comment: The opinion is a bit muddled, IMHO, but apparently the Board found the applied-for mark to be descriptive both because it is laudatory and because it describes the goods.

Text Copyright John L. Welch 2015.