Panda Restaurant Group, Inc.

Trademark Trial and Appeal BoardMar 15, 2012

No. 77757688 (T.T.A.B. Mar. 15, 2012)

THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Mailed: March 15, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Panda Restaurant Group, Inc. ________ Serial No. 77757688 _______ Katherine L. McDaniel of Fulwider Patton LLP for Panda Restaurant Group, Inc. William Breckenfeld, Trademark Examining Attorney, Law Office 116 (Michael W. Baird, Managing Attorney). _______ Before Quinn, Kuhlke, and Wolfson, Administrative Trademark Judges. Opinion by Wolfson, Administrative Trademark Judge: Panda Restaurant Group, Inc. (“applicant”) has filed an application for the standard character mark BEIJING BEEF for “prepared Chinese food, namely, entrees consisting primarily of meat and vegetables” in International Class 29.1 The examining attorney refused registration of applicant’s mark under the provisions of Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground 1 Filed June 11, 2009, on the basis of applicant’s alleged first use and first use in commerce on March 20, 2008. The term “BEEF” has been disclaimed. Serial No. 77757688 2 that the mark is merely descriptive of a style of Chinese regional cooking.2 Upon final refusal of registration, applicant filed a timely appeal. The appeal has been fully briefed. For the reasons discussed below, we affirm the refusal to register. A mark is merely descriptive if it immediately conveys knowledge of a significant quality, characteristic, function, feature or purpose of the goods with which it is used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether a particular term is merely descriptive is determined in relation to the products for which registration is sought and the context in which the term is used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 2 An earlier refusal of the application on the ground that the mark is merely descriptive of a variety of Chinese food dishes referred to as “Beijing Beef” was withdrawn. Applicant argues in its brief that following the withdrawal (and publication of the mark that was subsequently withdrawn), the next Office action should have issued as a non-final action, and not as a final refusal. However, we find that the final refusal did not raise a new ground for refusal. The examining attorney asserted in both the first and final Office actions that the mark was unregistrable as merely descriptive. Moreover, applicant had an opportunity to object to the timing of the final refusal in its request for reconsideration; however, the request was silent on the matter. The fact that the examining attorney based the mere descriptiveness final refusal on a somewhat different rationale from that expressed in the initial refusal does not render the final refusal premature. See Trademark Rule 2.64; TMEP § 714.03 and § 714.06 (8th ed. 2011). Serial No. 77757688 3 (TTAB 2002). In other words, the issue is whether someone who knows what the products are will understand the mark to directly convey information about them. In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent & Trademark Serv. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In re Home Builders Assn. of Greenville, 18 USPQ2d 1313, 1317 (TTAB 1990). Applicant’s mark is BEIJING BEEF for prepared Chinese food. The examining attorney contends that there is a style of cuisine known as “Beijing cuisine,” emanating from the region of Beijing, China. It is not disputed that Beijing is the capital city of the People’s Republic of China, located in the northeastern part of China.3 The examining attorney further contends that “there are dishes known as Beijing Beef.”4 Applicant, on the other hand, argues that BEIJING BEEF is a term coined by applicant to suggest a Chinese-inspired dish that applicant has successfully marketed since March 2008.5 The examining attorney relies on several pieces of Internet evidence to support his position, including: 3 Family Reference Atlas of the World, p. 180, (National Geographic 2d ed. 2007). The Board may take judicial notice of reference works such as encyclopedias and atlases. In re London & Edinburgh Insurance Group Ltd., 36 USPQ2d 1367, 1370 (TTAB 1995). 4 Examining Attorney’s Brief, (unnumbered) p. 5. 5 March 9, 2009 Response to Office Action, p. 3. Serial No. 77757688 4 1. Reach To Teach Guide to China -- Chinese Food “Beijing Cuisine is a refined combination of Shangdong and Imperial cuisine. Beijing chefs generally put more effort in the method of cooking while using more common ingredients. … The most famous dish associated with Beijing is Peking Roast Duck.”6 2. Beijing Restaurant Review, San Francisco, 94112 “Beijing Restaurant is a new Beijing style Chinese restaurant in San Francisco’s Excelsior district that opened in early 2009. It’s gotten lots of hype on Chowhound. It is a family owned place that focuses on authentic Beijing dishes. … Beijing Beef Pancake ($7.25) had lots of beef sandwiched between layers of a pan fried scallion pancake. … This restaurant offers up some very good Beijing Chinese food and at reasonable prices….”7 3. San Francisco Bay Area Digest: Beijing’s Fare Is Capital “A lot of places say they specialize in Beijing cuisine, but this one really means it, with dishes you’ll rarely find in the Bay Area…. The menu is full of dumplings, pancakes, … and lots of Beijing-style meat dishes. … Top choices include … Beijing beef pie…. Beijing beef pancake (kind of like a taco) and house special spicy eggplant, while not so spicy, are also delicious.”8 6 Final Office action dated October 21, 2010. At www.reachtoteachrecruiting.com. Snapshot of the page as it appeared on October 19, 2010; accessed October 21, 2010. 7 Office action dated September 15, 2009. At www.foodnut.com. Snapshot of the page as it appeared on September 10, 2009; accessed September 15, 2009. 8 Office action dated September 15, 2009. At www.chow.com. Snapshot of the page as it appeared on September 7, 2009; accessed September 15, 2009 Serial No. 77757688 5 4. Wikipedia entry under “American Chinese cuisine” has a heading titled “Westernized versions of native Chinese dishes.” One of these is “Beijing Beef--This dish exists in native Chinese form, but using gai-lan (Chinese broccoli) rather than American broccoli.”9 5. Wikipedia entry under “Beijing cuisine” “Beijing cuisine ([Chinese characters and transliterations omitted…]; literally “capital cuisine”) is a cooking style in Beijing, China. It is also formally known as Mandarin cuisine. … Since Beijing has been the Chinese capital city for centuries, its cuisine has been influenced by culinary traditions from all over China, but the cuisine that has exerted the greatest influence on Beijing cuisine is the cuisine of the eastern coastal province of Shandong. Beijing cuisine has itself, in turn, also greatly influenced other Chinese cuisines ….”10 This article includes a list of “Well- known Beijing dishes and street food.” While there is no entry for “Beijing Beef,” there are other beef entrees. 6. Abacus (see Chinese Culture section)--Food. Introduction: Beijing Food “Beijing food or Northern food is a combination of different areas 9 Final Office action dated October 21, 2010. At http://en.wikipedia.org/wiki/American_Chinese_cuisine. Snapshot of the page as it appeared on October 19, 2010; accessed October 21, 2010. Applicant’s argument that the Wikipedia entry carries a high-level warning against the reliability of the information goes to the probative value of the evidence, and not its admissibility. The “Board will consider evidence taken from Wikipedia so long as the non-offering party has an opportunity to rebut that evidence….” In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1032 (TTAB 2007). 10 Final Office action dated October 21, 2010. At http://en.wikipedia.org/wiki/Beijing_cuisine; accessed October 21, 2010. Serial No. 77757688 6 varieties [sic] namely Hebei, Sangdong, Lower Yangzi River area, Mongolia and Xinjiang.”11 7. Muztagh Travel Service. Local Cuisines of Beijing. “A prime example of Beijing cuisine is the Beijing Roast Duck.”12 8. Beef - The Online Reference & Resource for Foodservice. Funded by the Beef Checkoff. BEEF FOR FOODSERVICE PROFESSIONALS -- “Beef Recipes” “Beijing Beef. Thinly-sliced flank steak stir-fried with asparagus and red peppers and served over fresh cabbage.”13 9. “Dr. Delicious -- Beijing Beef recipe today with the daily updated recipe from NYC Chef Dr. Delicious.”14 10. Menu from Chef Chu’s. The restaurant appears to be located in the United States as the telephone number for ordering is 650-948-2696. “Grilled Beijing Beef. Marinated beef strips, wok-roasted with Beijing bean sauce & green onion, garnished with crispy rice noodles.”15 11. Beijing Chinese Restaurant in Houston, Texas 11 Final Office action dated October 21, 2010. At www.west-meet- east.com. Snapshot of the page as it appeared on October 15, 2010; accessed October 21, 2010. 12 Final Office action dated October 21, 2010. At www.muztagh.com; accessed October 21, 2010. 13 Office action dated September 15, 2009. At www.beeffoodservice.com. Snapshot of the page as it appeared on September 5, 2009; accessed September 15, 2009. Applicant’s argument that this dish is sold only to foodservice professionals and not to the general public is unavailing. There are no limitations in the identification of goods of applicant’s application. Thus, applicant’s prepared Chinese foods are presumed to be offered to all trade channels normal for such goods, which would include foodservice professionals. 14 Office action dated September 15, 2009. At www.readio.com. Snapshot of the page as it appeared on September 1, 2009; accessed September 15, 2009. 15 Office action dated September 15, 2009. At www.chefchu.com. Snapshot of the page as it appeared on August 18, 2009; accessed September 15, 2009. Serial No. 77757688 7 Menu includes “Beijing Beef Skewers,” “Beijing Special Wonton Soup” and “Beijing Special Noodles Soup”16 Applicant has also submitted Internet evidence to show that the term BEIJING BEEF uniquely identifies applicant’s recipe. Applicant argues that based on the searches it conducted, the mark names a dish made from applicant’s proprietary recipe and does not refer to a regional style of cooking. The results of applicant’s searches include: 1. Applicant’s 2010 search for “Beijing Beef” at www.google.com wherein 20 of the first 29 hits directly refer to applicant either in the heading or body of the results.17 2. Applicant’s 2011 search for “Beijing Beef” at www.google.com wherein seven out of eleven entries identify “Beijing Beef” as a recipe from applicant; one of the listings uses “Chinese crispy beef” as an alternative name for the dish. 18 3. Applicant’s Wikipedia search for “Beijing beef” wherein applicant printed the first twenty listed entries (out of 141 entries) in summary fashion. The first of these identifies “Beijing Beef” as an entrée offered by applicant. The second listing is headed “Beijing cuisine” but no substantive information is included as to the nature of the entry. Another entry, for “Chinese Islamic cuisine,” notes that it “is heavily influenced by Beijing cuisine.” One of the other entries repeats an earlier 16 Office action dated September 15, 2009. At www.beijing1960.com/menu. Snapshot of the page as it appeared on September 6, 2009; accessed September 15, 2009. 17 Applicant’s Response to Office action dated September 15, 2009. Exhibits C, E, F, I, L, and N. At www.google.com; accessed February 17, 2010. 18 Applicant’s Request for Reconsideration. At www.google.com; accessed March 18, 2011. Serial No. 77757688 8 posting (listed above), and none of the other entries is relevant.19 4. A website at which was posed “How many calories does the average person eat at a Chinese buffet?” listed “Beijing Beef” as a buffet item, along with nutritional information, attributing the information to applicant.20 5. Other websites attributing BEIJING BEEF to applicant, such as “Panda Express’ Beijing Beef Copycat”21 and “Beijing Beef copycat of Panda Express recipe.”22 Based on these results, applicant argues that “Beijing Beef” identifies applicant’s own food dish; that there is no well-understood designation that refers to beef dishes emanating from Beijing and, therefore, no readily understood type of “Beijing” cooking style. In order to determine whether the term BEIJING BEEF serves as a source indicator for applicant’s specific dish, or merely describes a type of cuisine, we consider the entirety of the evidence. It is the “perception of the relevant purchasing public” which sets the standard for determining mere descriptiveness. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (citation omitted). 19 Applicant’s Request for Reconsideration. At http://en.wikipedia.org; accessed March 25, 2011. 20 Applicant’s Response to Office action dated September 15, 2009. At http://wiki.answers.com; accessed February 24, 2010. 21 Applicant’s Response to Office action dated September 15, 2009. At www.recipezaar.com; accessed February 24, 2010. 22 Applicant’s Response to Office action dated September 15, 2009. At www.bigoven.com; accessed February 24, 2010. Serial No. 77757688 9 Upon consideration of the evidence and arguments presented, we agree with the examining attorney that the term “BEIJING BEEF” is merely descriptive of applicant’s “prepared Chinese food, namely, entrees consisting primarily of meat and vegetables.” Such term immediately conveys, without speculation or conjecture, that the goods are of a category of food prepared using the Beijing style of cooking. While the record clearly shows different entities using this term in connection with prepared foods, even were applicant the first, or only entity, to use the term BEIJING BEEF in relation to a prepared Chinese food dish using meat and vegetables, such fact would not be dispositive. See In re Tekdyne Inc., 33 USPQ2d 1949, 1953 (TTAB 1994) and cases cited therein. Nor does the fact that there appear to be variations on the recipe from which “Beijing Beef” dishes are prepared change the result. The references show that there is a type of cooking known as “Beijing cuisine.” A prepared food dish known as “Beijing Beef” may be expected to have been made using Beijing cooking style techniques. Accordingly, the mark is merely descriptive for a prepared Chinese food dish. Decision: The refusal to register under Section 2(e)(2) is affirmed.