Birds Eye Foods LLC

Trademark Trial and Appeal Board

Oct 14, 2014

No. 85729823 (T.T.A.B. Oct. 14, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 14, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Birds Eye Foods LLC
_____

Serial No. 85729804 for the mark SAVORY SKILLETS and
Serial No. 85729823 for the mark BIRDS EYE SAVORY SKILLETS
_____

Michael D. Fishman of Rader Fishman & Grauer PLLC,
for Birds Eye Foods LLC.
Nicole Nguyen, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Kuhlke, Taylor and Gorowitz,
Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Birds Eye Foods LLC (“Applicant”) seeks registration on the Principal Register
of the marks SAVORY SKILLETS (in standard characters), the subject of
application Serial No. 85729804, and BIRDS EYE SAVORY SKILLETS, the subject
of application Serial No. 85729823 for
Frozen entrees consisting primarily of one or more of
meat, fish, poultry or vegetables; frozen meals consisting
primarily of one or more of meat, fish, poultry or
vegetables in Class 29; and
Serial Nos. 85729804 and 85729823
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Frozen entrees consisting primarily of one or more of
pasta or rice; frozen meals consisting primarily of one or
more of pasta or rice in Class 30.
Both applications were filed on September 14, 2012, and were based upon
applicant’s allegation of a bona fide intention to use the mark in commerce under
Section 1(b) of the Trademark Act.
The Trademark Examining Attorney has refused registration of Serial No.
85729804 under Section 2(e)(1) on the ground that the mark is merely descriptive of
Applicant’s goods and has refused registration of Serial No. 85729823 on the ground
that the term “SAVORY SKILLETS” is merely descriptive of Applicant’s goods and
thus must be disclaimed. After the Examining Attorney made the refusals final,
Applicant appealed. Because the two appeals involve similar issues of law and fact
and similar records, we are deciding both appeals in this single decision.1 We affirm
both refusals to register.
I. Discussion
A. The phrase “SAVORY SKILLETS” is merely descriptive of Applicant’s
frozen entrees.
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic, feature, function, purpose
or use of the goods. DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695
F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); In re Chamber of Commerce of

1 Unless otherwise noted, all references to the record are from application Serial No.
85729804.
Serial Nos. 85729804 and 85729823
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the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). Whether a
term is merely descriptive is determined not in the abstract, but in relation to the
goods for which registration is sought, the context in which it is being used on or in
connection with the goods, and the possible significance that the term would have to
the average purchaser of the goods because of the manner of its use; that a term
may have other meanings in different contexts is not controlling. In re Chamber of
Commerce of the U.S., 102 USPQ2d at 1219 (citing In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979). The burden is on the United States Patent and
Trademark Office to make a prima facie showing that the mark in question is
merely descriptive. See In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1090
(Fed. Cir. 2005) (citing In re Abcor Development); see also In re Merrill Lynch,
Pierce, Fenner, and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir.
1987). The Examining Attorney has met this burden.
The Examining Attorney has submitted the definition of “savory” to establish
that the word “savory” is descriptive of a characteristic of Applicant’s goods.
Applicant argues that the dictionary definition of “savory” is insufficient to establish
the descriptiveness of the word “savory.” Appeal Brief, p. 5, 4 TTABVUE at 6. We
disagree. “Evidence that a term is merely descriptive may be obtained from any
competent source, such as dictionaries, newspapers, or surveys.” In re Stereotaxis,
Inc., 77 USPQ2d at 1089.
Serial Nos. 85729804 and 85729823
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“Savory,” which is defined in Merriam-Webster’s Online Dictionary as
“pungently flavorful without sweetness,”2 immediately conveys a characteristic of
Applicant’s frozen entrees, which is that the entrees are flavorful, but not sweet.
Accordingly, we find that the dictionary definition is sufficient to establish that the
term “savory,” is merely descriptive of applicant’s goods.
With respect to the issue of the nature of the word “skillets,” Applicant admits
that “[t]he Examining Attorney did provide a modicum of support for the statement
that ‘skillet meal is commonly used to describe one-pot or one-pan meals.’” Reply
Brief, p. 2, 7 TTABVUE at 3. However, Applicant argues that “the record does not
support the assumption that consumers will make the intuitive leap to understand
‘SKILLET’ to mean ‘skillet meal’; [and] [i]f this intuitive leap is not supported by
evidence, it is mere supposition.” Id. Contrary to Applicant’s assertions, the
Examining Attorney has provided more than a modicum of evidence both to
establish that “skillet meal” is commonly used to describe one-pot or one-pan meals
and that “skillet meals” are referred to as “skillet” or “skillets.” The evidence
includes advertisements and articles regarding the sale of “skillet meals,” including

2 Merriam-Webster On-line Dictionary (m-w.com), © Merriam-Webster,
Incorporated 2013, Exhibit to Office Action dated January 14, 2013.

Serial Nos. 85729804 and 85729823
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the following advertisement from Applicant’s website:

In the advertisement, Applicant uses the term “skillet meal” as a description of a
meal consisting of frozen food cooked in a single pan (a skillet). Examples of the
other advertisements and promotional materials for skillet meals, including frozen
skillet meals are:
• Annie’s “Organic Skillet Meals” (www.annies.com),
(Office Action dated January 14, 2013)

Serial Nos. 85729804 and 85729823
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• Schwans’ “skillet meals” (www.schwans.com),
(Office Action dated January 14, 2013)

• Newman’s Own “Complete Skillet Meals”
(www.newmansown.com), (Office Action dated
August 6, 2013)

and

Serial Nos. 85729804 and 85729823
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• Fred Meyer - Kroger brand frozen skillet meals
(www.fredmeyer.com), (Office Action dated August
6, 2013).

The evidence also establishes that “skillet meals” are known as “skillets.” For
example, an article dated May 1, 2005 from Food and Drink, entitled “Best taste in
skillets: Gourmet Express Co. explains how it has grown in the past eight years by
listening to customers and taking advantage of opportunities in the market,”3
provides a company profile of Gourmet Express, a Texas based company
specializing in frozen skillet meals.4 “Skillets” is also discussed in an excerpt from
7-DAY MENU PLANNER FOR DUMMIES, which states that combination meals in
which “all the ingredients end up in one vessel,” are also known as “casseroles,”
“bakes,” and “skillets.”5 “Skillets” is also listed as a “one dish” meal on the

3 Obtained from the Highbeam Business website (business.highbeam.com), Exhibit to Office
Action dated August 6, 2013.
4 Web page from Gourmet Dining website, located at www.gourmetdining.com, Exhibit to
Office Action dated January 14, 2013.
5 Google Books excerpt from Nicholson, Susan, 7-DAY MENU PLANNER FOR DUMMIES,
accessed at book.google.com, Exhibit to Office Action dated August 6, 2013.

Serial Nos. 85729804 and 85729823
- 8 -

Tablespoon Blog (www.tablespoon.com/recipe-categories/cuisine/one-dish), Exhibit
to Office Action dated August 6, 2013. Further, the term “skillets” is frequently used
in restaurants to describe a “one dish” meal. As exhibits to the Office Action dated
August 6, 2013, the Examining Attorney attached a number of menus for skillets,
including:
• Denny’s Breakfast Menu obtained from the Eat24
website (Orlando.eat24hours.com), which includes
“Omelets and Skillets”;
• Egg’lectic Café Menu (www.egglecticcafe.net) which
includes “Frittatas and Skillets”;
• Northern Queen Inn Breakfast Menu
(www.northernqueeninn.com), which includes
“Omelets & Skillets” and;
• “Margie’s Dream Diner Breakfast Menu,”
(www.margiesdreamdiner.com), which states:
“Come to see us at Margie’s for breakfast. From
eggs and skillets to kielbasa and waffles, we’ve got
a breakfast food for your morning craving.”
Despite this evidence, Applicant, relying on Silver Skillet Food Prod. Co. v.
Carnation Co., 159 USPQ 47 (TTAB 1968), argues that the term “‘SKILLETS’ is
arbitrary with respect to ‘canned and frozen prepared foods’ and a ‘wide variety of
canned prepared food products, including canned sauces for casseroles’.”6
Applicant’s reliance on this decision is misplaced. “[A]lthough a term at its inception
or adoption may have been arbitrary or even suggestive in character, it may
thereafter through use in a descriptive sense over a period of time lose its
distinguishing and origin denoting characteristics and be regarded by the relevant

6 Appeal Brief, p. 9, 4 TTABVUE at 10.
Serial Nos. 8

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Serial Nos. 8

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- 10 -
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Serial Nos. 85729804 and 85729823
- 11 -

must literally, and with particularity, “describe” the goods
or services. As noted in In re Colonial Stores, Inc., 157
U.S.P.Q. 382 (CCPA 1968) and In re Quik-Print Copy
Shops, Inc., 205 U.S.P.Q. 505, n.7 (CCPA 1980), “merely”
in “merely descriptive” means “only.”7
Applicant’s argument is not well-taken. As discussed, supra, the context in which it
is being used on or in connection with the goods, and the possible significance that
the term would have to the average purchaser of the goods because of the manner of
its use; that a term may have other meanings in different contexts is not
controlling. In re Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (citing In
re Bayer Aktiengesellschaft, 82 USPQ2d at 1831); In re Bright-Crest, Ltd., 204
USPQ 593.
Based on the evidence of record, we find that the average purchaser of
Applicant’s frozen entrees will immediately interpret the term SAVORY SKILLETS
as a frozen skillet meal that is not sweet. Accordingly find the mark SAVORY
SKILLETS (in standard characters), which is the subject of application Serial No.
85729804 to be merely descriptive of Applicant’s goods under Section 2(e)(1) of the
Trademark Act.
B. The term “SAVORY SKILLETS” must be disclaimed in application
Serial No. 85729823.
“The Director may require the applicant to disclaim an unregistrable
component of a mark otherwise registrable.” Section 6 of the Trademark Act.
Trademark Manual of Examining Procedures (TMEP) § 1213.03(a).“A mark or
component is unregistrable if, when used on or in connection with the goods of the

7 Appeal Brief, p. 3, 4 TTABVUE at 4.
Serial Nos. 85729804 and 85729823
- 12 -

applicant’s, it is merely descriptive --- of them.” In re Stereotaxis Inc., 77 USPQ2d at
1089. Failure to comply with a disclaimer requirement is grounds for refusal of
registration. See In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed.
Cir. 1987); In re Richardson Ink Co., 511 F.2d 559, 185 USPQ 46 (CCPA 1975); In re
Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007); In re National Presto Industries, Inc.,
197 USPQ 188 (TTAB 1977); and In re Pendleton Tool Industries, Inc., 157 USPQ
114 (TTAB 1968). As discussed, supra, the term “SAVORY SKILLETS” is merely
descriptive of Applicant’s frozen food entrees and thus is an unregistrable
component of Applicant’s mark. Accordingly the mark BIRDS EYE SAVORY
SKILLETS is not registrable in the absence of a disclaimer of the wording
“SAVORY SKILLETS.”
Decision: The refusals to register Applicant’s marks SAVORY
SKILLETS and BIRDS EYE SAVORY SKILLETS in application Serial Nos.
85729804 and 85729823 are affirmed. However, if applicant submits the
required disclaimer of SAVORY SKILLETS in application Serial No.
85729823 to the Board within thirty days, this decision will be set aside as to
the affirmance of the disclaimer requirement.8 See Trademark Rule 2.142(g),
37 C.F.R. § 2.142.

8 The standardized printing format for the required disclaimer text is as follows: “No claim
is made to the exclusive right to use SAVORY SKILLETS apart from the mark as shown.”
TMEP 1213.08(a) (i).