Country Music Café, Inc.

Trademark Trial and Appeal Board

Jul 28, 2005

No. 75909681 (T.T.A.B. Jul. 28, 2005)

Mailed:
July 28, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Country Music Café, Inc.
________

Serial No. 75909681
_______

Joel T. Beres and Jennifer L. Kovalcik of Stites &
Harbison, PLLC for Country Music Café, Inc.

Mary Rossman, Trademark Examining Attorney, Law Office 108
(Andrew Lawrence, Managing Attorney).
_______

Before Quinn, Zervas and Walsh, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:

An application was filed by Country Music Café, Inc.
to register the mark COUNTRY MUSIC CAFE for, inter alia,
"nightclub and restaurant services" in International Class
42.1

1 Application Serial No. 75909681, filed February 4, 2000,
alleging a bona fide intention to use the mark in commerce. The
application originally also included goods in International
Classes 14, 18, 21, 25 and 26.
The examining attorney’s initial refusal to register under
Section 2(e)(1) of the Trademark Act (discussed below) was not
limited to the services in International Class 42. She later
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser No. 75909681
2
The examining attorney refused registration under
Section 2(e)(1) of the Trademark Act on the ground that
applicant's mark, if applied to applicant's services, would
be merely descriptive of them.
Applicant has appealed the final refusal. Both
applicant and the examining attorney have filed briefs.
Applicant did not request an oral hearing.
Applicant contends that its proposed mark “as a whole
… is not merely descriptive because it does not immediately
convey knowledge of the ingredients, qualities or other
characteristics” of its services. (Emphasis in the
original.) Further, applicant maintains that the evidence
relied on by the examining attorney confirms that the mark
is suggestive and fails to establish that the mark cannot
function to distinguish applicant's services. In support
of its contention that its mark is suggestive, applicant
cites to seventeen registrations “wherein the PTO merely
required a disclaimer of the generic term ‘café.’”2

withdrew her Section 2(e)(1) refusal with respect to any goods in
the application. Thus, on August 23, 2004, applicant filed a
request to divide the application, which the Office granted,
creating a child application and assigning it application Serial
No. 75983517. A notice of allowance has issued in the child
application.
2 The examining attorney has objected to applicant's citation of
sixteen of these seventeen registrations because “a list of
registrations is not evidence, particularly when the list does
not even indicate whether the registrations are on the Principal
or Supplemental Register and when the identifications include
Ser No. 75909681
3
The examining attorney maintains that the mark
“immediately describes features of nightclub and restaurant
services, e.g., they are to [be] provided in a café setting
featuring country music.” In support of her refusal to
register, the examining attorney submitted dictionary
definitions of “country music” and “café”; excerpts of
articles retrieved from the NEXIS database; articles found
on the Internet; disclaimers of “analogous wording, such as
COUNTRY ROCK CAFÉ, JAZZ AND BLUES CAFÉ, JAZZ CAFÉ, BLUES
CAFÉ, BLUES CENTER, MUSIC PALACE, for nightclub,
restaurant, bar and entertainment services in third-
parties’ registrations”; disclaimers of the term COUNTRY
MUSIC in registrations for a wide variety of goods and
services; and disclaimers of the term CAFÉ in registrations
for nightclub and restaurant services. The examining
attorney maintains that such evidence “all support the
determination that COUNTRY MUSIC CAFÉ immediately describes

applicant's gloss.” (Applicant did not provide a copy of the
sixteen registrations, and the examining attorney introduced the
seventeenth registration into the record.) Because these
registrations were noted by applicant in its request for
reconsideration, and the examining attorney did not advise
applicant that the listing is insufficient to make the
registrations of record in her denial of the request for
reconsideration, see TBMP § 1208.02 (2d ed. rev. 2004), the
examining attorney is deemed to have waived the objection. As
explained below, however, the disclaimers or lack of disclaimers
in third-party registrations are not determinative of the issues
before us in this appeal.

Ser No. 75909681
4
a café where COUNTRY MUSIC is featured, be it live COUNTRY
MUSIC or pre-recorded COUNTRY MUSIC.”
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Act Section
2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function,
purpose or use of the goods or services. In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
A term need not immediately convey an idea of each and
every specific feature of the applicant's goods or services
in order to be considered merely descriptive; it is enough
that the term describes one significant attribute, function
or property of the goods or services. In re H.U.D.D.L.E.,
216 USPQ 358 (TTAB 1982); and In re MBAssociates, 180 USPQ
338 (TTAB 1973). Whether a term is merely descriptive is
determined not in the abstract, but in relation to the
goods or services for which registration is sought, the
context in which it is being used on or in connection with
those goods or services, and the possible significance that
the term would have to the average purchaser of the goods
or services because of the manner of its use; that a term
may have other meanings in different contexts is not
controlling. In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB
Ser No. 75909681
5
1979). It is settled that "[t]he question is not whether
someone presented with only the mark could guess what the
goods or services are. Rather, the question is whether
someone who knows what the goods or services are will
understand the mark to convey information about them." In
re Tower Tech Inc., 64 USPQ2d 1314 (TTAB 2002); see also In
re Home Builders Association of Greenville, 18 USPQ2d 1313
(TTAB 1990); and In re American Greetings Corporation, 226
USPQ 365 (TTAB 1985). As the Board has explained:
... the question of whether a mark is merely
descriptive must be determined not in the
abstract, that is, not by asking whether one can
guess, from the mark itself, considered in a
vacuum, what the goods or services are, but
rather in relation to the goods or services for
which registration is sought, that is, by asking
whether, when the mark is seen on the goods or
services, it immediately conveys information
about their nature.

In re Patent & Trademark Services Inc., 49 USPQ2d 1537
(TTAB 1998).
According to the examining attorney, The American
Heritage Dictionary of the English Language (1992) defines
“country music” as: “popular music based on the folk style
of the southern rural United States or on the music of
cowboys in the American West.” Additionally, “café,” which
has been disclaimed by applicant, is defined as a
“coffeehouse, restaurant, or bar.” Id. Thus, a “country
Ser No. 75909681
6
music café” immediately describes a coffeehouse, restaurant
or bar featuring popular music based on the folk style of
the southern rural United States or on the music of cowboys
in the American West. When the proposed mark is considered
as a whole and used in connection with the identified
services, it has a definite, readily identifiable meaning.
Country music “and its associated culture” evidently
is a central theme adopted by applicant in rendering its
“nightclub and restaurant services.” At p. 5 of its brief,
applicant acknowledges that the two page article discussing
the “County Music Café” that the examining attorney
introduced into evidence, taken from the
www.millcapquest.com website (dated March 11, 2004), refers
to applicant. The article, under the heading “Completed
Direct Public Offerings” and the caption “Country Music
Café,” states:
The Company was incorporated in April of 1996 to
develop, own and operat[e] the Country Music
Café, casual dining restaurants which will serve
moderately priced American style f[ood] and
beverages and feature Country Music and its
associated culture as its basic theme. The
County Music Café restaurant concept is based
upon the popularity and appeal of Country Music
and the culture and lifestyle it represents. It
is designed to provide customers with an
opportunity to dine in [an] environment that
enables them to experience the look, sound, feel
and excitement of the Country M[usic] segment of
the entertainment industry. The Company intends
to create this environment primarily through the
Ser No. 75909681
7
use of pre-recorded traditional and contemporary
County Music, décor which will featu[re] country
Music memorabilia, collectibles and art. It is
also expected that the Company’s restaurants
w[ill] feature live musical performances.3

Applicant has not contested the accuracy of the description
of applicant's nightclub/restaurant in the article.
Further, the record in this case shows descriptive
uses of “country music café.” Specifically, the examining
attorney has noted the following uses of “country music
café” taken from the Nexis database:4
If it’s a sweet tooth you have, try some of the
desserts featured at the Millstone Dine and
Dessert Café located on the northwest corner of
the International Fountain lawn. There you can
indulge in a mondo medley of confections and sip
gourmet coffee while watching demonstrations at
the Blue Ribbon Cooking School. As if the cheap
eats weren’t enough, there are lots of free food
samples to be had at the food-products exhibit,
such as sauces, cereals and salsa. For those of
you who still claim to come strictly for the
entertainment, there are bands, health-care
booths, a Flag Pavilion dance palace and a
country-music café.

(The Seattle Times, July 20, 2001)

3 Several words were cut off or omitted on the copy of the
article in the record. The lettering in brackets consists of
those letters that were omitted from the copy of the article in
the record.
4 The examining attorney’s search for “country music café”
located seven hits. Two hits are identified above. The
remaining hits show use of COUNTRY MUSIC CAFÉ as a trade name –
and hence may be referring to applicant itself - or do not use
COUNTRY MUSIC CAFÉ as a unitary term, e.g., “… Great Hill
Mountain Band will offer country music. The café is open until 2
a.m. ….” (The Hartford Courant Company, September 2, 1999).
Ser No. 75909681
8
Vanderbilt is an oasis of Southern gentility
right in the middle of Nashville, the country-
music capital of the world. There’s the Grand
Old Opry, Dollywood and Barbara Mandrell Land.
So while Brendan saw Vanderbilt’s campus, I
decided to take in the Country Music Hall of
Fame. There right before my eyes were Elvis
Presley’s car, a suit worn by Johnny Cash and a
roomful of guitars. Later, sitting in a country
music café, listening to country music, Brendan
confessed that he was more confused than ever.
Where should he go to school? What should he
major in? And where would he meet girls?

(The Baltimore Sun, November 9, 1995)

Additionally, the examining attorney has located several
articles from the Nexis database showing descriptive use of
“music café,” including the following excerpts from those
articles:
The center, which has been in the planning stages
since 1997, would celebrate black contributions
to the arts, sports, media, literature and civil
rights, and feature a mix of local and national
exhibitions and performances. A theater, retail
store, music café and restaurant are also
envisioned.

(Pittsburgh Post-Gazette, September 13, 2001)

A 300–seat theater is envisioned, as is a
restaurant, store and music café. Culture will
be brought to life through musical performances,
storytelling and hands-on exhibits for children.

(Pittsburgh Post-Gazette, July 28, 2001)

ShowBizCity will also house the 900-seat Broadway
Theatre. ShowBizCity will also feature a 230-
seat Comedy Store, a music café, a Back to the
‘60s Café, theaters, restaurants and tours of the

Ser No. 75909681
9
Aalsmeer studios, where many of Holland’s more
popular TV programs are made.

(Variety, September 1-7, 1997)

One of the most complicated scenes has been saved
for the last week — they’re shooting the
projected revelry of June 30 in Lan Kwai Fong, a
small L-shaped street crammed by singles bars,
music cafés and trendy restaurants with names
like Oscar’s and Tokyo Joe.

(Los Angeles Times, June 16, 1997)

Because “country music” is a type of music, the use of
“music café” in a descriptive manner is relevant to the
question of whether “country music café” is merely
descriptive of applicant's nightclub and restaurant
services.
From the foregoing, we find that “country music café”
is a term which has a definite meaning and that applicant
offers country music as a feature or characteristic of its
services. We conclude that, when used in connection with
applicant's services, the term COUNTRY MUSIC CAFE
immediately describes, without conjecture or speculation, a
significant characteristic or feature of applicant's
services, namely, that country music is a theme of
applicant's café.
Applicant has argued that its proposed mark “does not
convey … immediate knowledge of the Applicant's services to
a potential consumer” because “nothing about the mark
Ser No. 75909681
10
immediately indicates exactly what services the Applicant
provides.” Applicant points out that:
Applicant's mark could refer to country music
related food or favorite foods of country
musicians. It could be a facility for live
country music, classic country music recorded
decades ago, modern country music recorded this
year, or even bluegrass country music. Moreover,
it could be that country music was not played at
all and the only relation to country music is
memorabilia on the walls. In fact, the service
provided could be a combination of any or more of
the above.
Applicant's arguments are not well taken. The mark
immediately – and without imagination or thought - conveys
the fact that the nightclub and restaurant services
provided by applicant have a country music theme. As such,
the mark forthwith conveys an immediate idea of a
characteristic or feature of applicant's services. See In
re Gyulay, 820 F.2d at 1217.5
Further, we note that both applicant and the examining
attorney have made third-party registrations of record in
support of their arguments. Our decision is not affected
by any of the third-party registrations made of record by
either applicant or the examining attorney. Many of these
registrations involve services that are not in question in

5 We note that this is an instance where consumers do not need to
know what services applicant is offering under the mark to
determine a feature or characteristic of applicant's services –
the descriptive significance is obvious from the mark itself when
considered in its entirety.
Ser No. 75909681
11
this case. Also, applicant has not identified the services
listed in each of the registrations it has mentioned in its
brief.6 Further, the registrations of record are not
determinative of the issues before us in this appeal - each
case must be decided on its own merits, and neither the
Board nor the examining attorney is bound by the prior
actions of the Office. See In Re Nett Designs Inc., 236
F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001). ("Even if some
prior registrations had some characteristics similar to
[applicant's application], the PTO's allowance of such
prior registrations does not bind the Board or this
court.")
In view of the foregoing, we conclude that, when used
in connection with applicant's services, the term COUNTRY
MUSIC CAFÉ immediately describes, without conjecture or
speculation, a significant characteristic or feature of the
services, namely, that applicant's nightclub/restaurant is
a café that features country music.
Decision: The refusal to register is affirmed.

6 See e.g., Registration No. 2872532 for FITNESS CAFÉ which
applicant states is “presumably registered for a health conscious
restaurant.”