Friday, December 23, 2016

CHEESE ZOMBIES Not Generic But Merely Descriptive of Filled Bakery Products

The Board granted this petition for cancellation of a registration for the mark CHEESE ZOMBIES for "filled bakery products" [CHEESE disclaimed], finding the term to be merely descriptive of the goods and lacking acquired distinctiveness, but not generic. Defendant Dumploads offered the results of a survey from Survey Monkey, but the Board rejected that evidence on multiple grounds. Patty’s Original Cheese Zombies, Inc. v. Dumploads On US, Cancellation No. 92058966 (December 20, 2016) [not precedential].

Defendant's president, Mr. Giacobazzi, designed the survey and commissioned Survey Monkey to run it. He purchased an "audience" from Survey Monkey. He had designed no other surveys in the past eight years, he was not disclosed as an expert witness, there was no indication of any experience in surveys, nor did he have the skills to testify as an expert. Mr. Giacobazzi did not observe or oversee the survey and was not familiar with how Survey Monkey conducts its business. The Board concluded that the survey results constituted hearsay and it refused to consider them.

Genericness: The Board found the genus of goods to be "filled bakery products," and the relevant public to be ordinary consumers who purchase and eat filled bakery products. The Board proceeded, as required, to analyze the proposed mark as a whole.

As a first step, it is appropriate to look to dictionary definitions of the constituent words (cheese is cheese, a zombie is a zombie). There was no dictionary definition of "cheese zombie."

Ms. Riley, former teacher and administrator at Mt. Diablo Unified School District (California), testified that "cheese zombies" were served at schools in her district for decades. She describe a cheese zombie as a "wonderful puff of pastry around this nice gooey little narrow thing of cheese." They were very popular, and former students would even come back to buy them.

Plaintiff submitted media references to "cheese zombies," newspaper listings of school menus in California, Washington State, and Missouri, and at least eight on-line recipes. Defendant's president, Mr. Giacobazzi, testified that when he went to Foothill Middle School, "cheese zombies" were on the menu.

Viewing the evidence as a whole, the Board did not find that relevant consumers would understand "cheese zombies" as a type of "filled bakery products," including "a loaf of bread with cheese inside." In short, the term is not generic for those goods.

Mere Descriptiveness: The Board found, however, that the phrase "cheese zombies" immediately conveys an idea of the characteristics of the goods, i.e., they are a type of baked product filled with cheese. Indeed, "cheese zombies" is almost always used to describe the same type of baked item filled with cheese. Therefore the mark is merely descriptive.

Even if respondent had claimed acquired distinctiveness under Section 2(f), it was apparent that its use was not substantially exclusive, and so the claim must fail.

The Board therefore granted the petition for cancellation on the ground of mere descriptiveness under Section 2(e)(1).

Read comments and post your comment here.

TTABlog comment: Do you think the term is generic (a sub-genus)? What if the pastry were shaped like a zombie?

Text Copyright John L. Welch 2016.


At 1:53 PM, Anonymous Anonymous said...

How does the word cheese zombie "immediately convey a type of baked product filled with cheese"? Even if I was told the goods are “filled bakery products” I cannot make the leap required to say that the word zombie describes this product in any way.

ZOMBIE cannot even be considered a suggestive mark because the word "zombie" is not suggestive of the goods at all.

The Board just jumps to its conclusion without any legal support. The literal meaning of zombie is certainly not descriptive of the goods without outside evidence. By definition then, it cannot be considered descriptive.

ZOMBIE is clearly an arbitrary term that became generic for the goods. There was never anything descriptive about the word "zombie" as it relates to these goods.

The outside evidence proved it is now generic, like ESCALATOR.

CHEESE ZOMBIE may have begun as a unique product identifier, but its meaning become generic through widespread use by many different people.

I also am not aware that there can be "acquired distinctiveness" of an arbitrary mark.

The only way to make an generic mark a trademark (for a mark that is arbitrary) would be through "generification reversing" - like HOOVER did for vacuums.

Here they could do that because of all the current third party use.

Who really wrote this decision? I suspect it was not really written by Richie.

At 3:38 PM, Anonymous Anonymous said...

I've never heard of a "cheese zombie." If someone asked me if I wanted one, I'd assume they were referring to an undead creature made of cheese. Or an undead creature that craves cheese instead of humans. CHEESE ZOMBIE seems descriptive of either of those things, not a "filled bakery product."

At 11:21 AM, Blogger Pamela Chestek said...

I went to Foothills Middle School in the sixth grade. Only it was a junior high then. Don't remember cheese zombies though. Oh, and I agree with Anonymouses that it's a ridiculous theory "cheese zombie" is descriptive.

At 7:57 AM, Blogger John L. Welch said...

Try a Google brand search for "cheese zombies" and see what you get.

At 2:48 PM, Anonymous Anonymous said...

What lessons can be learned from this decision? Did the registrant's attorney royally screw up somehow? Did they fail to submit evidence that could have saved the mark?

At 10:10 AM, Anonymous Anonymous said...

As I read your summary, the evidence of common use is that one school cafeteria called their concoction "Cheese Zombies." Should that be enough to make the term descriptive or to defeat a 2(f) claim?

I did do a Bing brand search and found a several other users of the phrase, so maybe in the real world denial of registration is justified, but the TTAB usually ignores the real world and only focuses on the evidence that survived their efforts to disqualify admissibility.

At 10:20 AM, Blogger John L. Welch said...

It wasn't just one school cafeteria. There was other evidence, including on-line recipes.

At 4:29 PM, Anonymous T.J. said...

The area of Yakima, WA schools started serving Cheese Zombies in the 1950's...originally in our area it started in the Grandview School District...I would like to know if anyone knows why and how they became known as Cheese Zombies? I you? Shoot me a reply.


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