from the no-shrimp-for-you dept
I acknowledge that trademark legislation is a nuanced factor and I don’t count on the common individual to be conversant in all of its intricacies. Hell, I write about logos on a regular basis and I might in all probability fill a legislation faculty gymnasium with what I nonetheless don’t find out about it. However I actually am usually stunned by how usually the idea that you simply can not trademark, or monopolize, a time period that’s purely descriptive of the services or products the mark is for. It appears to me that the idea that you simply can not lock up language in commerce when that language describes a product for which there might be competing merchandise appears to me to be fairly apparent, but it escapes far too many individuals.
And generally they need to be taught this a number of occasions earlier than it takes. Randy White owns Doc Ford’s Rum Bar & Grille in Florida and includes on its menu a dish referred to as “Yucatan Shrimp.” It’s a dish consisting of, properly shrimp. And it’s cooked within the model popularized within the Yucatan area of Mexico. You in all probability already guessed all of that, as a result of the identify of the dish is solely descriptive. Regardless of that, White tried to get a trademark on the time period.
This has gone by means of a number of steps up to now. First, the examiner reviewed the appliance, did their homework on the time period, discovered it in use in every single place and famous its descriptive nature, after which denied the mark. White appealed the choice to the USPTO’s TTAB, which reviewed the examiner’s work and affirmed it. Not content material with being taught about descriptive marks twice, White then appealed that call to the Courtroom of Appeals, which has now also affirmed the examiner’s and TTAB’s decision.
There’s plenty of good element within the choice embedded under, however the highlights include the courtroom doing what I can solely describe as educating White and his attorneys on trademark legislation.
Substantial proof helps the Board’s conclusion that the YUCATAN SHRIMP mark is merely descriptive of Mr. White’s items. The examiner marshalled a legion of recipes and descriptions of “Yucatan Shrimp” dishes from third-party cooking and restaurant webpages, displaying that the general public understands “Yucatan Shrimp” to confer with a dish that options shrimp ready with a set of widespread elements related to Mexican delicacies, corresponding to scorching peppers or sauce, citrus juice, and cilantro. J.A. 39–113. The Board discovered that the third-party proof establishes that YUCATAN SHRIMP is acknowledged as a dish utilizing shrimp and explicit elements related to Mexican delicacies. J.A. 8.
The Board additionally relied on Mr. White’s personal utilization of the mark on his restaurant’s menu. The menu describes the dish as originating in Quintana Roo, Mexico, which encompasses a portion of the Yucatan Peninsula. J.A. 24, 26. And the menu explains that the dish is ready utilizing the identical elements because the third-party dishes described above, additional supporting the Board’s discovering that the general public would acknowledge the YUCATAN SHRIMP mark as describing a shrimp dish with widespread elements.
White tried to poke some very particular holes within the TTAB’s reasoning, however to no avail. He stated that the TTAB ought to have needed to show that there was a selected model of cooking understood by the general public to have originated within the Yucatan: denied by the courtroom. He stated that the TTAB modified the reasoning of the refusal in comparison with the unique examiner as a result of the examiner referred to the descriptive nature of the cooking model being from the “Yucatan,” whereas the TTAB referred to it as descriptive of “Mexican-inspired” meals and that this made the TTAB’s evaluation improper: denied by the courtroom. White asserted that the examiner failed to contemplate “proof” White supplied by not reviewing a information article in regards to the dish and restaurant: denied by the courtroom, as a result of it doesn’t change the reasoning of the examiner in any possible way.
However this one is my favourite:
Lastly, Mr. White contends that any doubts as to descriptiveness ought to have been resolved in his favor. This argument merely repackages Mr. White’s complaints in regards to the Board’s antagonistic discovering. There is no such thing as a foundation on this file to conclude that the examiner or the Board doubted the descriptiveness of the mark or that they improperly resolved any doubts towards Mr. White.
Thrice now, White and his authorized workforce have been informed the mark is descriptive and to go away. Hopefully, because the saying goes, right here endeth the lesson.
Filed Underneath: descriptive, randy white, trademark, ttab, yucatan shrimp
Corporations: doc ford’s rum bar & grille
Source link
