Red Lobster Hospitality LLC

Trademark Trial and Appeal Board

Jun 28, 2017

No. 85179618 (T.T.A.B. Jun. 28, 2017)

This Opinion is not a
Precedent of the TTAB

Hearing: May 2, 2017 Mailed: June 28, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Red Lobster Hospitality LLC.1
_____

Serial Nos. 85179591 and 85179618

Belinda J. Scrimenti and Seth I Appel of Pattishall, McAuliffe, Newbury, Hilliard &
Geraldson LLP, for Red Lobster Hospitality LLC.

Josette M. Beverly, Trademark Examining Attorney, Law Office 115,
John Lincoski, Managing Attorney.
_____

Before Wolfson, Gorowitz and Masiello,
Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
Red Lobster Hospitality LLC (“Applicant”) seeks registration on the Principal
Register of the marks:
and

1 The applications were filed in the name of Darden Concepts, Inc. and were assigned to Red
Lobster Hospitality LLC on July 28, 2014, at which time this appeal had been fully briefed.
Serial Nos. 85179591 and 85179618

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for “restaurant services and carry-out services” (jointly referred to as “Restaurant
Services”) in International Class 43.2 Disclaimers of “FRESH FISH” and “LIVE
LOBSTER” have been entered in both applications; and claims of acquired
distinctiveness pursuant to Section 2(f) of the Trademark Act, 15 U.S.C. §1052(f),
were entered with respect to the term “RED LOBSTER” and the lobster design and
were accepted by the Examining Attorney. The following description of the mark was
entered in Serial No. 8517951:
The mark consists of a black rectangular shape with
rounded edges as background, with a design of a stylized
lobster in red with areas of lighter and darker red shading,
black detailing and a fine white border. The words "RED
LOBSTER" appear in white under the stylized lobster
design. The words "FRESH FISH · LIVE LOBSTER"
appear in white under the words "RED LOBSTER.”
The colors black, red, and white are also claimed as a feature of the mark.
Color is not claimed as a feature of the mark in Serial No. 85179618. The
description of the mark reads:
The mark consists of rectangular shape with rounded edges
as background, with a design of a stylized lobster with
areas of lighter and darker shading, detailing and a fine
border. The words "RED LOBSTER" appear under the
stylized lobster design. The words "FRESH FISH · LIVE
LOBSTER" appear under the words "RED LOBSTER".

2 Both applications were filed November 18, 2010, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), based on Applicant’s allegation of use of each mark in commerce since at
least as early as December 10, 2009.

With the exception of the claim to color in Application Serial No. 85179591, the marks are
identical.

Serial Nos. 85179591 and 85179618

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The Trademark Examining Attorney has refused registration of Applicant’s
marks under Section 6(a) of the Trademark Act, 15 U.S.C. §1056(a), on the ground
that a disclaimer is required of the word LOBSTER because it is generic for
Applicant’s services.3 When the refusals were made final, Applicant appealed and
requested reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed. At Applicant’s request, the two appeals
were consolidated.4
The case has been fully briefed5 and a hearing was held on May 2, 2017.
I. Preliminary Matter.
The Examining Attorney objects to Applicant’s reference in its appeal brief to four
third-party registrations containing the word “LOBSTER.” While these registrations
were discussed by Applicant in its Request for Reconsideration, Applicant did not
make them of record. “[T]he Board does not take judicial notice of records residing in
the Patent and Trademark Office.” In re Ruffin Gaming LLC, 66 USPQ2d 1924, 1925
n.3 (TTAB 2002) and cases cited therein. “The proper procedure [] for making
information concerning third-party registrations of record is to submit either copies

3 The Examining Attorney also required a disclaimer of the design of a lobster; however, such
requirement was withdrawn and thus is not at issue in this appeal.
4 All references to documents in the application files are to the documents in Application
Serial No. 85179591. All citations to the Trademark Status and Document Retrieval (TSDR)
database are to the PDF versions of the documents.

5 Applicant’s reply brief was twenty-pages in length. Trademark Rule 2.142(b)(2) mandates
that a reply brief shall not exceed ten pages in length in its entirety. 37 CFR § 2.142(b)(2).
Accordingly, Applicant’s reply brief has not been considered.

Serial Nos. 85179591 and 85179618

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of the actual registrations or the electronic equivalents thereof, i.e., printouts of the
registrations which have been taken from the PTO's own computerized database.” Id.
Based thereon, we sustain the Examining Attorney’s objection and have not
considered the contested referenced registrations.
II. Background.
Applicant and its predecessors have been using the term RED LOBSTER as a
mark for restaurant services for over 70 years.6 “RED LOBSTER is one of the largest
restaurant chains in the United States, with well more than 600 restaurants since
2002 …”7 Since 2000, Applicant’s RED LOBSTER restaurants in the United States
have served over 100 million customers annually and annual revenues since 2002
have been over $2.3 billion.89 Applicant advertises its mark extensively and has spent
over $75 million annually on television commercials; in a five year period between
2007 and 2012, Applicant’s television commercials were viewed over 14.8 billion times
annually.10 Applicant’s other advertising includes free-standing inserts in
newspapers (distributed to 60 million U.S. households),11 “radio, outdoor billboards,
direct mail and e-mail advertising, and other Internet/digital and new media.”12

6 March 6, 2012 Response, Horace G. Dawson, III (“Dawson”) Declaration ¶2, TSDR p. 161.
7 Id., Dawson Declaration ¶9, TSDR p. 164.
8 Applicant did not specify whether the annual revenues are restricted to sales in the
United States.
9 Id., Dawson Declaration ¶¶10-11, TSDR p. 164.
10 Id., Dawson Declaration ¶ 15, TSDR p. 166.
11 Id., Dawson Declaration ¶ 16, TSDR p. 167.
12 Id., Dawson Declaration ¶ 17, TSDR p. 167.
Serial Nos. 85179591 and 85179618

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We agree with Applicant that the mark RED LOBSTER is famous for restaurant
services. In particular, RED LOBSTER is famous for seafood restaurants, in which,
lobster is a specialty and a “best selling classic item:” 13
Applicant owns seven registrations for the mark RED LOBSTER depicted in a
variety of stylizations and designs, all for restaurant services. The earliest-issued
three registrations, which issued in the late 1970s, and one registration that issued
on January 23, 1990, do not include a disclaimer of the word LOBSTER:
1. Reg. No. 1128443 – RED LOBSTER in typed form14
– issued December 26, 1979;
2. Reg. No. 1067005 -
issued May 31, 1977;
3. Reg. No. 1069147 -
issued July 5, 1977;

13 Id., Frumkin, Nation’s Restaurant News, December 11, 2006, TSDR p. 96-8.
14 It is noted that prior to November 2, 2003, “standard character” drawings were known as
“typed” drawings. A typed mark is the legal equivalent of a standard character mark. In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012)

Serial Nos. 85179591 and 85179618

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4. Registration No. 1579587 for the mark
issued on January 23, 1990.
Disclaimers of the word “lobster” were required prior to issuance in the following
three registrations:
1. Reg. No. 1438742 -
issued May 5, 1987;
2. Reg. No. 1502609 -
issued August 8, 1988;

3. Reg. No. 2015236 -
issued November 21, 1996.

III. Disclaimer Requirement.
Section 6(a) of the Trademark Act, 15 U.S.C. §1056(a), states “[t]he Director may
require the applicant to disclaim an unregistrable component of a mark otherwise
registrable.” “A mark or component is unregistrable if, ‘when used on or in connection
with the goods [or services] of the applicant,’ it is ‘merely descriptive ... of them.’” 15
Serial Nos. 85179591 and 85179618

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U.S.C. § 1052(e)(1). See In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089
(Fed. Cir. 2005). This prohibition also applies to generic terms. Generic terms are
terms that the relevant purchasing public understands primarily as the common or
class name for the goods or services. In re Dial-A-Mattress Operating Corp., 240 F.3d
1341, 57 USPQ2d 1807, 1811 (Fed. Cir. 2001); In re Am. Fertility Soc'y, 188 F.3d 1341,
1346, 51 USPQ2d 1832, 1836 (Fed. Cir. 1999). A generic term is "the ultimate in...
descriptiveness" under §2(e)(1) and incapable of acquiring distinctiveness under §2(f).
H. Marvin Ginn Corp. v. Int'l Ass'n of Fire Chiefs, Inc., 782 F.2d 987, 989, 228 USPQ
528, 530 (Fed. Cir. 1986).
Applicant contends that “it is unfathomable that an average consumer, upon
seeing one of Applicant’s RED LOBSTER restaurants would come away with the
impression of two distinct marks.” See Appeal Brief, 16 TTABVUE 19. We agree;
however, disclaiming exclusive rights to the word “lobster” apart from the mark as a
whole is not an acknowlegment that consumers would have the impression of two
distinct marks when viewing RED LOBSTER. A disclaimer “does not have the effect
of removing [the disclaimed words] from the mark sought to be registered, or from
our consideration. It disclaims only exclusive right in those words per se.” Scwarzkopf
v. John H. Breck, Inc., 340 F.2d 978, 144 USPQ 433, 433 (CCPA 1965) (“The purpose
of a disclaimer is to permit the registration of a mark which is registrable as a whole
but which contains matter which would not be registrable standing alone, without
creating the false impression of the extent of the registrant’s right with respect to
certain individual elements in the mark.”).
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A disclaimer of a term is required if the term is merely descriptive (without a
showing of acquired distinctiveness) or generic. However, in either case a disclaimer
will not be required if the term forms part of a unitary, registrable component of the
mark. In this case, Applicant has conceded that RED LOBSTER is merely descriptive
of Applicant’s services. The two specific questions before us are whether the word
LOBSTER is generic for a seafood restaurant that specializes in lobster; and whether,
as used in Applicant’s mark, LOBSTER is part of a unitary, distinctive component of
the mark.
A. Is the term LOBSTER generic for restaurant services?
Applicant acknowledges that LOBSTER is “merely descriptive [] for restaurant
services”;15 however, the Examining Attorney contends that the word LOBSTER is
generic for restaurant services. The determination of whether a particular term is
generic, and therefore cannot be a trademark or service mark, is a question of fact.
In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009). The
question is “whether members of the relevant public primarily use or understand the
term sought to be protected to refer to the genus of goods or services in question.” H.
Marvin Ginn 228 USPQ at 530. Making this determination “involves a two-step
inquiry: First, what is the genus of goods or services at issue? Second, is the term

15 Appeal Brief, 16 TTABVUE at 16.

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sought to be registered … understood by the relevant public primarily to refer to that
genus of goods or services?” H. Marvin Ginn, 228 USPQ at 530.
The genus of the services at issue is adequately defined by the recitation of
services in the application, specifically “restaurant services.” Magic Wand Inc. v.
RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (“[A] proper
genericness inquiry focuses on the description of services set forth in the [application
or] certificate of registration”).
The Examining Attorney has established that the term LOBSTER is
understood by the relevant public primarily to refer to restaurant services by
submitting evidence that “lobster restaurant” is a common term used to denote a type
of restaurant. The evidence includes the following excerpts from newspaper articles:
• “Bean made her endorsement at the lobster restaurant she
owns in Freeport ...”16
• “Crossing the bridge to enter what many consider the real
Downeast, you leave behind fudge shops and lobster
restaurants …”17
• “The Obamas ate at Stewman’s Downtown, a waterfront
lobster restaurant on West Street …”18

16 April 17, 2012 Office Action, Shannon Travis, L.L. Bean heiress backs Paul, CNN Wire,
January 28, 2012, TSDR p. 5.
17 Id., Kathleen Weldon, The craft of fire and fish, and some new Yankee classics, The Boston
Globe, August 3, 2011, TSDR p. 7.
18 Id., Kevin Miller, Obamas explore MDI; Hiking, biking and ice cream fill the day, Bangor
Daily News, July 17, 2010, TSDR p. 11.
Serial Nos. 85179591 and 85179618

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• “Alas, neither park can boast anything as rich as Acadia’s
abundance of lobster restaurants.”19
The Examining Attorney also submitted evidence of numerous restaurants
categorized as “lobster restaurants,” which specialize in lobster and other seafood.
Representative samples of articles discussing and identifying “lobster restaurants"
include:
• Lobster Restaurants in New England20
“Dining on lobster is a New England tradition you won’t want
to miss when you visit. Here’s your guide to restaurants that
specialize in lobster and other seafood.”21

• Lobster Restaurants in Orlando22
“McCormick and Schmick’s Seafood Restaurant,” The
“Oceanaire Seafood Room,” “High Tide Harry’s,” and “Boston
Lobster Feast.”

• Belfast Restaurants: Top 5 Lobster Restaurants23
“Belfast is not renowned for their Chinese dishes or pizza
specialties, but rather for their lobster.”
“Young’s Lobster Pound,” “Weathervane Seafood
Restaurants,” “Papa J’s & the Lobster Bar,” “Lunch Wagon,”
and “Lookout Pub.”

Applicant identifies itself as “[t]he nation’s largest seafood chain.”24 As discussed,
supra, lobster is a specialty of Applicant’s restaurants, where annually there is a

19 Id., Chris Riemenscheider, Sure, America’s Most Popular National Parks Pack in the
Tourists Each Summer, But There are Others Worth a Visit: Quiet Gems With All the
Scenery and None of the Crowds, Star Tribune, May 16, 2010.
20 September 6, 2011 Office Action, About.com (gonewengland.about.com), TSDR pp. 14-15.
21 “Red Lobster” is listed as a “sponsored link.”
22 Id., USA Travel, (www.traveltips.usa.com), TSDR pp. 20-22.
23 Id., Bed&BreakfastInns Online, (www.bbonline.com), TSDR pp. 24-25.
24 March 6, 2012 Response, Catherine R. Cobb, Nation’s Restaurant News, January 28, 2008,
TSDR p.105.
Serial Nos. 85179591 and 85179618

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“celebration of everything lobster,” which is called “Lobsterfest.” The following are
representative examples of the Lobsterfest promotion:
25
26

25 March 6, 2012 Response, Dawson Decl., Exhibit 5, TSDR p. 219.
26 Id., Exhibit 6, TSDR p. 231.
Serial Nos. 85179591 and 85179618

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Based on the evidence of record, we find that the relevant public (consumers of
restaurant services) understands that “lobster” is generic for a type of restaurant that
serves “lobster,” and since Applicant operates this type of restaurant, the word
LOBSTER in its mark is generic for restaurant services. See In re Cordua Rests., Inc.,
823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“A term can be generic for a
genus of goods or services if the relevant public -- here, the restaurant-going public—
understands the term to refer to a key aspect of that genus—e.g., a key good that
characterizes a particular genus of retail services.”)
B. Is the term RED LOBSTER a unitary term for which no disclaimer of
LOBSTER is required?
Applicant contends that “[e]ven if the word ‘LOBSTER’ were generic for
restaurant services …it would be improper to require Applicant to disclaim this
element because RED LOBSTER is a unitary mark.” Appeal Brief, 16 TTABVUE 18.
“A disclaimer of a descriptive [or generic] portion of a composite mark is unnecessary
only where the form or degree of integration of that element in the composite makes
it obvious that no claim other than of the composite would be involved. That is, if the
elements are so merged together that they cannot be regarded as separable elements,
the mark is a single unitary mark and not a composite mark and no disclaimer is
necessary.” In re EBS Data Processing, Inc., 212 USPQ 964, 966 (TTAB 1981).
A unitary mark has certain observable characteristics.
Specifically, its elements are inseparable. In a unitary
mark, these observable characteristics must combine to
show that the mark has a distinct meaning of its own
independent of the meaning of its constituent elements. In
other words, a unitary mark must create a single and
Serial Nos. 85179591 and 85179618

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distinct commercial impression. This test for unitariness
requires the Board to determine ‘how the average
purchaser would encounter the mark under normal
marketing of such goods and also ... what the reaction of
the average purchaser would be to this display of the mark.’
Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555, 21 USPQ2d 1047, 1052 (Fed. Cir.
1991) (citation omitted). The Court, citing the 1986 revision of the Trademark Manual
of Examining Procedure (TMEP), set forth the following factors which assist in
determining whether matter is a part of a unitary mark: “whether it is physically
connected to the mark by lines or other design features; how close the matter is
located to the mark and whether side by side on the same line; the meaning of the
words and how the meaning relates to each other and to the goods …” Id. The current
version of the TMEP, at Section 1213.05, further defines these factors and by doing
so finds the following types of marks to be unitary:
• Compound word marks consisting of two or more distinct
words that are represented as one word, which includes
telescoped words comprising two or more words that share
letters, compound words formed by either hyphenating terms
or joining terms with other punctuation; 27
• Unitary phrases consisting of two or more words that act as a
single idea or a syntactical unit, if the whole is something more
than its parts, which includes slogans;28
• Double entendre marks consisting of marks that have a double
connotation or significance as applied to the goods or
services;29

27 TMEP §§ 1213.05(a), (a)(i) and (a)(ii) (April 2017).
28 Id. at §§ 1213.05(b) and (b)(i).
29 Id, at § 1213.05(c).
Serial Nos. 85179591 and 85179618

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• Incongruous marks consisting of word combinations whose
import would not be grasped without some measure of
imagination and mental pause.30
Applicant contends that its mark is a unitary phrase consisting of two words that
act as a single syntactical unit in which “Applicant’s RED LOBSTER mark has a
particular meaning apart from its individual words.” Appeal Brief, 16 TTABVUE 19.
According to Applicant, the term “RED LOBSTER” suggests a lobster that has been
cooked to perfection.31 Thus, the RED LOBSTER mark has a pleasing connotation
independent of its individual elements.” Id. Applicant compares its mark to the marks
discussed in the non-precedential decision32 In re MerchSource, LLC, Serial No.
77713799 (TTAB 2012). In MerchSource, the Board discussed the nature of the marks
BLACK DIAMOND, BLACK WIDOW, BLACK LETTER, BLACK MAGIC and
BLACK GRANITE and concluded these marks were unitary because in each mark
“the word ‘black’ took on a significance that transcends its meaning as a designator
of color.” MerchSource, at p. 14.33

30 Id. at §§ 1209.01(a) and 13.05(d).
31 Applicant claims this conclusion is supported by the evidence; however, Applicant did not
refer to any evidence in support thereof.
32 While non-precendential decisions may be cited, they are not binding on the Board. See In
re Morrison & Foerster LLP, 110 USPQ2d 1423, 1427, n.6 (TTAB 2014) ("Although parties
may cite to non-precedential decisions, the Board does not encourage the practice.”); In re the
Procter & Gamble Co., 105 USPQ2d 1119, 1120-21 (TTAB 2012) (citation to non-precedential
opinions permitted but not encouraged; non-precedential decisions not binding on the Board).
33 The word “black” transcended its meaning as a designator of color in the mark BLACK
DIAMOND for “plastic combs” because the unitary phrase “black diamond” is defined as a
dense black hematite.
The word “black” transcended its meaning as a designator of color in the mark BLACK
WIDOW for “golf cleat brushes” because the unitary phrase “black widow” is defined as a
venomous New World spider.
Serial Nos. 85179591 and 85179618

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In this case, the Examining Attorney established that red is the color of a cooked lobster;34
however, there is no evidence supporting Applicant’s contention that the mark suggests a
lobster cooked to perfection or that it has a pleasing connotation. The phrase RED
LOBSTER does not have any meaning, whether literal or figurative, that transforms
the ordinary meaning of the two words when interpreted according to standard
English usage. The term RED LOBSTER does not constitute a unitary phrase in
which the whole is something other than the sum of its parts.
Applicant also argues that the mark is famous and therefore, it is unitary. Based
on the evidence, we agree with Applicant that the term “RED LOBSTER” is famous
for restaurant services, in particular for seafood restaurants in which lobster is a

The word “black” transformed its meaning as a designator of color in the mark BLACK
LETTER LINES for “beverageware” because the unitary phrase “black letter” is defined as
heavy angular condensed typeface.
The word “black” transformed its meaning as a designator of color in the mark BLACK
MAGIC for “automobile cleaners” because the unitary phrase “black magic” is defined as a
type of magic in which people communicate with evil spirits and use evil powers.
The word black transformed its meaning as a designator of color in the mark BLACK
GRANITE for “camping cookware” because the unitary phrase “black granite” is defined as a
diabase, diorite, gabbro, or other rock that is dark gray to black when polished and is used as
a commercial granite.
MerchSource, at 11-13.
34 April 17, 2012 Office Action, LobsterHelp.Com “Your
Guide to Everything Lobster,” www.lobsterhelp.com TSDR pp. 14-18.

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speciality, which strengthens Applicant’s rights in the mark. We do not, however,
agree that the fame renders the wording unitary. To support its contention, Applicant
relies on In re Kraft, Inc., 218 USPQ 571 (TTAB 1983), in which the Board found the
mark LIGHT N’ LIVELY to be a unitary mark because
[t]he mark “LIGHT N’ LIVELY” as a whole has a
suggestive significance which is distinctly different from
the merely descriptive significance of the term “LIGHT”
per se. That is, the merely descriptive significance of the
term “LIGHT” is lost in the mark as a whole. Moreover, the
expression as a whole has an alliterative lilting cadence
which encourages persons encountering it to perceive it as
a whole. For these reasons, we believe that purchasers will
not go through the mental process of breaking the mark
“LIGHT N’ LIVELY” into its component elements but will
rather regard it as a unitary mark.
Kraft, at 573. After finding the mark unitary, the Board added:
Further, the record includes evidence of applicant’s long
and extensive use of its mark in connection with food
products as well as copies of its four subsisting
registrations of the mark for various food products closely
related to the goods here involved. It is clear therefrom that
applicant’s mark as a whole has become distinctive of
applicant’s food products in commerce, that is, that
purchasers have come to recognize the mark as a unitary
expression signifying the source of origin of such goods.
Id. Applicant argues that “[l]ike Kraft’s LIGHT N’ LIVELY mark, purchasers have
come to recognize Applicant’s RED LOBSTER mark as a unitary expression
signifying the source of origin of Applicant’s services”35 because
RED LOBSTER is one of the most popular restaurants in
the country, and it has been for many years. Further,
Applicant owns numerous U.S. registrations for RED

35 Appeal Brief, 16 TTABUVE 20.
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LOBSTER marks, and it has promoted these marks
extensively for years.36
In Kraft, the Board found the LIGHT N’ LIVELY mark to be unitary because the
mark “LIGHT N’ LIVELY” as a whole had a suggestive significance which was
distinctly different from the merely descriptive significance of the term “LIGHT.”
This case is distinguishable from Kraft wherein the acquired distinctiveness of the
mark was an independent, sufficient reason not to require a disclaimer, because none
of the words of the mark was generic.
Thus, since the term RED LOBSTER does not consist of a phrase in which the
combination of words has transformed the meaning of the phrase as a whole into
something more than the parts, it does not qualify as a unitary phrase under the
Dena factors, as expanded in the TMEP.
After considering all of the evidence and argument, we find that the word
“LOBSTER” is generic for restaurant services and that the term RED LOBSTER is
not a unitary term. As such, disclaimers of the word “LOBSTER” are required in
Application Serial Nos. 85179591 and 85179618.
Decision: The refusals to register Applicant’s marks in Application Serial Nos.
85179591 and 85179618:

36 Id.
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and
are affirmed. However, if Applicant submits the required disclaimers of LOBSTER to
the Board within thirty days, this decision will be set aside.37 See Trademark Rule
2.142(g), 37 C.F.R. § 2.142.

37 The disclaimer should include all of the wording disclaimed. As such, the standardized
printing format for the required disclaimer text is as follows: “No claim is made to the
exclusive right to use FRESH FISH, LIVE LOBSTER, and LOBSTER apart from the
mark as shown.” TMEP 1213.08(a)(i).