Flower Restaurant Group, Inc.

Trademark Trial and Appeal Board

Jun 2, 2010

No. 77455669 (T.T.A.B. Jun. 2, 2010)

Mailed:
June 2, 2010
jtw

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Flower Restaurant Group, Inc.
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Serial No. 77455669
_______

Sheila Fox Morrison of Davis Wright Tremaine LLP for Flower
Restaurant Group, Inc.

Inga Ervin, Trademark Examining Attorney, Law Office 111
(Craig D. Taylor, Managing Attorney).1
_______

Before Seeherman, Walsh and Wellington, Administrative
Trademark Judges.

Opinion by Walsh, Administrative Trademark Judge:

Flower Restaurant Group, Inc. (applicant) has applied
to register LEMONADE on the Principal Register in standard
characters for services identified as “restaurant services;
catering; self service restaurants” in International Class
43.

1 A different examining attorney acted on this application prior
to this appeal.

THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77455669
2
The Examining Attorney has issued a final refusal on
the grounds that the mark merely describes the services
under Trademark Act Section 2(e)(1), 15 U.S.C. §
1052(e)(1). Applicant has appealed. Applicant and the
Examining Attorney have filed briefs. We affirm.
As a preliminary matter we note that applicant filed
certain evidence, a copy of a magazine article, for the
first time with its reply brief. This submission was late.
Therefore, we have not considered it. See Trademark Rule
2.142(d). Also, if we had considered this evidence, we
would not have decided this case differently.
Turning to the merits, a term is merely descriptive of
services within the meaning of Section 2(e)(1) if it
forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the services. See, e.g., In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009, 1009 (Fed. Cir. 1987); and In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA
1978). A term need not immediately convey an idea of each
and every specific feature of the applicant’s services in
order to be considered merely descriptive; it is enough
that the term describes one significant attribute or
function of the services. See In re H.U.D.D.L.E., 216 USPQ
Serial No. 77455669
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358, 359 (TTAB 1982); and In re MBAssociates, 180 USPQ 338,
339 (TTAB 1973).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the services identified
in the application, and the possible significance that the
term would have to the average purchaser (user) of the
services because of the manner of use. In re Polo
International Inc., 51 USPQ2d 1061, 1062 (TTAB 1999); and
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
The Examining Attorney argues that LEMONADE is merely
descriptive because LEMONADE is “… the name of a beverage
offered at applicant’s restaurant.” Examining Attorney’s
Brief at 3. The Examining Attorney also points out that
applicant offers a variety of lemonade blends and argues
that applicant highlights lemonade as a “house specialty”
in the operation of its restaurant. Id. at 5.
Furthermore, the Examining Attorney points to the fact that
applicant draws attention to its lemonade in the promotion
of its restaurant on applicant’s website. The website
states, “Once you’ve filled your tray with quirky,
mouthwatering morsels, pay up at the central stand, where
you’ll select from the several varieties of the requisite
lemonade. Favorites are rosemary, watermelon and pink
ginger….”
Serial No. 77455669
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Applicant argues, “The term LEMONADE is used as a
symbol. The name LEMONADE evokes an earlier time in a
consumer’s life, when she was a kid, when she was focused
on having fun and (in retrospect), when life was easy. The
name LEMONADE serves this symbolic role because lemonade is
a common drink of choice for kids and is emblematic of
summertime playfulness. The mark is therefore suggestive.”
Applicant’s brief at 3.
Applicant also points out that the décor of its
restaurant reflects this concept – it is evocative of a
grade-school cafeteria. Applicant’s menu includes four
blends of lemonade, as well as other beverages and a
selection of food items.
We find LEMONADE merely descriptive of the identified
services. As the Examining Attorney points out,
applicant’s own website promotes lemonade as a featured
item in the restaurant. Applicant offers several varieties
of lemonade at a prominent location in the restaurant.
Also, we are not persuaded that the term LEMONADE
would, by itself, evoke the suggestive meaning applicant
asserts. While a term, such as lemonade stand, might have
that effect, we fail to see how LEMONADE alone would.
Applicant argues that we should consider three
questions to determine whether LEMONADE is merely
Serial No. 77455669
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descriptive of restaurant services: (1) Is the named item
a “house specialty” or “principal food item”? (2) Has
applicant applied to register the same mark for the named
goods, as well as restaurant services? and (3) Has
applicant engaged in significant advertising which
emphasizes the named food item, indicating that the
applicant’s restaurant is the principal source of these
goods?
Applicant alleges that this three-part “test” is
derived from prior Board cases. However, applicant has not
cited, nor can we find, a case which frames the issue as
applicant suggests. While cases discuss some of the
considerations applicant notes, we reject applicant’s test.
In this connection, applicant relies on the following
cases: In re France Croissant, Ltd., 1 USPQ2d 1238 (TTAB
1986) (LE CROISSANT SHOP held merely descriptive of an
eating establishment where croissants are the principal
attraction, even though other items are available); In re
Le Sorbet, Inc., 228 USPQ 27 (TTAB 1985) (LE SORBET held
merely descriptive for restaurant and carry-out services
where sorbet is the principal attraction); and In re The
Registry Hotel Corporation, 216 USPQ 1104 (TTAB 1983) (LA
CHAMPAGNE held not merely descriptive of restaurant
services because the mark is suggestive of French cuisine
Serial No. 77455669
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in general rather than descriptive of a particular wine
served by applicant). In particular, we find no basis for
applicant’s assertion that the second question, as to
whether applicant has applied to register the mark for the
named item of goods, as well as the service, is relevant.
We reiterate that we must consider whether LEMONADE is
merely descriptive as applied to the identified services,
In re Polo International Inc., 51 USPQ2d at 1062, and that
it is enough that the term describes one significant
feature of the services. In re H.U.D.D.L.E., 216 USPQ at
359. The cases cited by applicant discuss whether the
named goods are a principal attraction of the restaurant
services to show that the term describes a significant
feature of the services. However, they do not require that
a mark must name the principal product offered by the
establishment in order for us to find that a mark is merely
descriptive of the services. In this case. we find that
LEMONADE describes one significant feature of “restaurant
services; catering; self service restaurants.”
The evidence of record as to applicant’s own use of
LEMONADE demonstrates that LEMONADE merely describes the
identified restaurant and related services. As we noted,
applicant itself features lemonade as a principal
attraction, and applicant promotes lemonade as such in its
Serial No. 77455669
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website advertising. Thus, our conclusions here are
entirely consistent with the cases applicant emphasizes.
Applicant has also provided examples of third-party
registrations for marks, including, MUSTARD CAFE, KETCHUP,
HONEY, CITRUS, and FIG & OLIVE, all for restaurant or
related services. Through this evidence applicant attempts
to argue that these marks are analogous to its mark, and
therefore, that we should treat LEMONADE in the same
manner. Of course, we must decide each case on its unique
facts and the record before use. In re Nett Designs Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).
Furthermore, we do not find any of the marks applicant
references analogous to LEMONADE. For example, it is not
reasonable to conclude that either mustard or ketchup would
generally serve as a featured attraction in a restaurant.
Accordingly, we reject that argument.
Decision: We affirm the refusal to register LEMONADE
under Section 2(e)(1).