Thursday, March 09, 2017

CAFC Affirms TTAB: EMPORIUM Is Descriptive of Arcade and Bar Services

In a non-precedential opinion, the CAFC affirmed the TTAB's ruling (here), that the word EMPORIUM in the mark shown below is merely descriptive of "providing video and amusement arcade services" and "bar services; bar services featuring snacks." The Board had affirmed the USTPO's refusal to register the mark absent a disclaimer of EMPORIUM. In re DDMB, Inc., Appeal No. 2016-2037 (Fed. Cir. March 8, 2017) [not precedential].

The Board found, based on dictionary definitions, that "emporium" connotes the attributes of "size, variety of merchandise, and trading activity," and it noted that arcades and bars "contain elements of these attributes." The Board also considered the definitions of "arcade" and "bar," and found that an arcade is an emporium because it provides a variety of different video games, and a bar is an emporium because it sells a variety of beers. Thus EMPORIUM is descriptive of both arcade and bar services.

The Board also relied on seven third-party registrations for marks containing the term EMPORIUM for bar services, in which the word EMPORIUM was disclaimed.

Finally, the Board found that EMPORIUM ARCADE BAR is not a unitary phrase, but rather that each term creates a separate commercial impression.

The CAFC found that substantial evidence supported the Board's findings that EMPORIUM describes applicant's services. Likewise, the phrase EMPORIUM ARCADE BAR is not a unitary mark because (unlike SUGAR & SPICE, which has a meaning independent of the constituent words), the phrase EMPORIUM ARCADE BAR has no independent significance.

And so the CAFC affirmed the Board's decision.

Read comments and post your comment here.

TTABlog comment: Why does the CAFC issue opinions in straightforward mundane cases like this, yet in other, more interesting cases, it affirms per curiam?

Text Copyright John L. Welch 2017.


At 10:14 AM, Anonymous Anonymous said...

It typically depends if the appellant waives oral argument. If appellant waives, the court will usually issue a nonprecedential written opinion, even where it's pretty clearly a case that should be affirmed, on or about the day that oral argument had been scheduled. If appellant does not waive oral argument, then in such cases the court will issue a Rule 36 summary affirmance. I'm guessing, but I suspect the rationale behind this unwritten, de facto "policy" is that the court wants the appellant to have something tangible -- either an argument or an opinion -- that indicates the court actually heard and thought about its arguments.


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