Snowizard, Inc.

Trademark Trial and Appeal Board

Feb 18, 2011

No. 77472649 (T.T.A.B. Feb. 18, 2011)

Mailed:
February 18, 2011
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Snowizard, Inc.
________

Serial No. 77472649
_______

Kenneth L. Tolar for Snowizard, Inc.

Janice L. McMorrow, Trademark Examining Attorney, Law Office
115 (John T. Lincoksi, Acting Managing Attorney).
_______

Before Seeherman, Bucher and Zervas, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Snowizard, Inc. seeks registration on the Principal
Register of the mark CAJUN RED HOT (in standard character
format) for goods identified as “flavoring concentrate for non-
nutritional purposes, namely, flavoring concentrate for shaved
ice confections” in International Class 30.1
The Trademark Examining Attorney refused registration on
the ground that the term is merely descriptive under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1),
specifically that it immediately tells consumers that the

1 Application Serial No. 77472649 was filed on May 13, 2008 based
upon claims of first use anywhere and first use in commerce at least
as early as May 31, 1988.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77472649
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flavor is spicy hot. After the Trademark Examining Attorney
made the refusal final, applicant appealed to this Board.
At the same time as applicant filed this Notice of
Appeal, it also filed with the Trademark Examining Attorney a
Request for Reconsideration of the refusal to register in
which, in the alternative, it amended its application to the
Supplemental Register. The Trademark Examining Attorney has
stated explicitly that she finds this proposed mark
registrable on the Supplemental Register. Hence, based upon
our analysis, infra, we find this proposed mark to be merely
descriptive under Section 2(e)(1) of the Act, and affirm the
refusal to register this application on the Principal
Register, but a registration will issue in due course on the
Supplemental Register.
In support of registrability, applicant argues that the
term “Cajun” does not refer to a spicy flavor, but rather to
the French settlers of Southwest Louisiana, and that
traditional Cajun cooking represents a complex style of
cuisine that differs generally from spicy food. Applicant
argues that the evidence collected by the Trademark Examining
Attorney merely shows other merchants and manufacturers,
particularly in the New Orleans area, who market spices,
marinades, etc., using the designation “Cajun.” Applicant
argues that a number of its flavoring concentrate competitors
Serial No. 77472649
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have copied its mark, but there is nothing inherent in this
combined terminology that members of the purchasing public
will think conveys any information about the goods.
By contrast, the Trademark Examining Attorney takes the
position that the terms “Cajun” and “Red Hot” are each merely
descriptive – pointing out multiple trademark owners in the
food product field who have admitted – by disclaiming exclusive
rights to such terms – that “Cajun” and “Red Hot” are each
descriptive of food products. Focusing specifically on the
word “Cajun,” the Trademark Examining Attorney contends that
it refers to a cuisine popularized with the public as having
dishes characterized by spicy flavors, as well as to a culture
in southern Louisiana that is proximate to applicant’s
business. Finally, she contends that applicant’s combining
the terms “Cajun” and “Red Hot” into a composite term does not
create a new and unique mark with a non-descriptive meaning.
A mark is merely descriptive, and therefore unregistrable
pursuant to the provisions of Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1), if it immediately conveys
“knowledge of a quality, feature, function, or characteristic
of the goods or services.” In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) [ASPIRINA
is merely descriptive of analgesic product]. See also In re
MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780
Serial No. 77472649
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(Fed. Cir. 2003) [MONTANA SERIES and PHILADELPHIA CARD are
merely descriptive of applicant’s “affinity” credit card
services; a “mark is merely descriptive if the ultimate
consumers immediately associate it with a quality or
characteristic of the product or service”]; In re Nett
Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001) [THE ULTIMATE BIKE RACK is merely descriptive of bicycle
racks]; In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed.
Cir. 1987) [APPLE PIE is merely descriptive of a potpourri
mixture]; and In re Quik-Print Copy Shops, Inc., 616 F.2d 523,
205 USPQ 505, 507 (CCPA 1980). To be “merely descriptive,” a
term need only describe a single significant quality or
property of the goods [or services]. Gyulay, 3 USPQ2d at
1009. Descriptiveness of a mark is not considered in the
abstract, but in relation to the particular goods or services
for which registration is sought. That is, when we analyze
the evidence of record, we must keep in mind that the test is
not whether prospective purchasers can guess what applicant’s
goods [or services] are after seeing only applicant’s mark.
In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 218
(CCPA 1978) [GASBADGE merely descriptive of a “gas monitoring
badge”; “Appellant’s abstract test is deficient – not only in
denying consideration of evidence of the advertising materials
directed to its goods, but in failing to require consideration
Serial No. 77472649
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of its mark ‘when applied to the goods’ as required by
statute.”]. 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, 1316-1317 (TTAB 2002); and In re Patent &
Trademark Services Inc., 49 USPQ2d 1537, 1539 (TTAB 1998).
In addition to considering the applied-for mark in
relation to the goods or services for which registration is
sought, the proper test for descriptiveness also considers the
context in which the mark is used and the significance that
the mark is likely to have on the average purchaser
encountering the goods or services in the marketplace. In re
Omaha National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir.
1987); In re Pennzoil Products Co., 20 USPQ2d 1753 (TTAB
1991); and In re Engineering Systems Corp., 2 USPQ2d 1075
(TTAB 1986).
A mark is suggestive, and therefore registrable on the
Principal Register without a showing of acquired
distinctiveness, if imagination, thought or perception is
required to reach a conclusion on the nature of the goods or
services. “Whether a given mark is suggestive or merely
descriptive depends on whether the mark ‘immediately conveys …
knowledge of the ingredients, qualities, or characteristics of
the goods … with which it is used,’ or whether ‘imagination,
Serial No. 77472649
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thought, or perception is required to reach a conclusion on
the nature of the goods.’” (citation omitted) In re Gyulay,
3 USPQ2d at 1009; In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American
Greetings Corp., 226 USPQ 365 (TTAB 1985).
Hence, the ultimate question before us is whether the
term CAJUN RED HOT conveys information about a significant
feature of applicant’s goods with the immediacy and
particularity required by the Trademark Act.
In partial support of her refusal, the Trademark
Examining Attorney has submitted copies of third-party
registrations for food items wherein the word “Cajun” has been
disclaimed within a composite mark:
CAJUN BLAST for “food additives for non-nutritional
purposes for use as flavoring, ingredient or
filler, namely, rouxes, basting sauces and
extracts” in International Class 30;2
N'ORLEANS CAJUN for “marinades; seasonings; spices” in
International Class 30;3 and
CAJUN HEAT for “condiment, namely, pepper sauce; hot
pepper powder; hot sauce; sauces” in
International Class 30.4

2 Registration No. 2760306 issued on September 2, 2003; Section 8
affidavit (six-year) accepted. No claim is made to the exclusive
right to use the word “Cajun” apart from the mark as shown.

3 Registration No. 3238512 issued on May 1, 2007. No claim is
made to the exclusive right to use the word “Cajun” apart from the
mark as shown.

Serial No. 77472649
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She also provided Internet evidence about a distinctive
type of cuisine having a similar style of herbs and spices:
Cajun Food
Why not spice your next meal up the Cajun way with our vast selection of
authentic Cajun spice mixes and rubs? … 5

6

HEADLINE: Barbecues and Grilling: Cajun Grilling
Adding real Cajun flavor to your cookouts is easy
… Of all the cooking traditions of the United States, Cajun has been the one to see
the most evolution. From these one pot classics to Cajun fried turkey, blackened fish
(and everything else), and the whole list of Cajun spices, sauces and seasonings.
Cajun has come to mean heat with flavor. By this I mean that the typical Cajun
seasoning has a good source of heat from a variety of chilies and peppers and a whole
load of flavors that rely on herbs and spices like Fennel seeds, cinnamon and cumin.
… 7
Similarly, in support of her showing that the term “Red
Hot” is descriptive, the Trademark Examining Attorney has
submitted third-party registrations for food items where the

4 Registration No. 3407341 issued on April 1, 2008. No claim is
made to the exclusive right to use the word “Cajun” apart from the
mark as shown.

5 http://www.cajungrocer.com/food-c-1.html

6 http://www.cajundepeaux.com/spices.html

7 http://bbq.about.com/od/regionalandethniccooking/a/aa051599.htm

Serial No. 77472649
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term “Red Hot” has been disclaimed within a composite mark, or
where the mark was registered under § 2(f) of the Act:

for “fried pork skins” in International Class
29;8

for “meat products; namely, sausage “ in
International Class 29;9
SEE'S RED HOT
SWAMP GOO
for “candy” in International Class 30;10
REDHOT for “food flavorings, marinades, sauces,
seasonings, and spices for food or food
products; condiments in the nature of hot
sauces; coatings and seasonings for food,
namely, seasoned coating for meat, fish and
poultry” in International Class 30.11

8 Registration No. 1226082 issued on February 1, 1983; renewed.
No claim is made to the exclusive right to use the words “Red Hot”
apart from the mark as shown.

9 Registration No. 1803845 issued on November 9, 1993; renewed.
No claim is made to the exclusive right to use the word “Red Hot”
and “Sausage” apart from the mark as shown.

10 Registration No. 2095637 issued on September 9, 1997; renewed.
No claim is made to the exclusive right to use the words “Red Hot”
apart from the mark as shown.

11 Registration No. 2389514 issued under Section 2(f) of the Act
on September 26, 2000; renewed.

Serial No. 77472649
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She also provided evidence from the Internet where other
manufacturers or merchants have used the term “Red Hot” as an
obvious reference to food with a spicy, hot flavor:
12
The Trademark Examining Attorney also placed into the
record pages from the website of a spice manufacturer that
discusses, inter alia, the “red-hot” flavor profile of Saigon
Cinnamon as a spice.13
Finally, the Examining Attorney submitted multiple
examples where merchants and manufacturers used the term
“Cajun Red Hot” in connection with a flavoring concentrate, a
syrup, or a snow cone flavor sold from a store or cart:

12 http://www.amazon.com/gp/product/B0000DK8PM;
http://www.amazon.com/gp/product/B0006ODXPE;
http://www.colpops.com/group.php?categoryid=cheese&groupid=ch_red_hcpc; and
http://gourmetgardens.com/cart/product_info.php?products_id=70

13 http://mccormick.com/

Serial No. 77472649
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CAJUN RED HOT 14
15
Caramel - Cajun Red Hot - Chocolate - Cinnamon - Fuzzy Navel - Blue Hawaii - Mango - Pineapple
16

14 http://www.sno-bobs.com/

15 http://www.fdlflavors.com/flavors.html, of Nashville, TN, as
accessed by the Trademark Examining Attorney on October 15, 2009.

16 http://snoballsupplies.com/page2.html, of Oklahoma City, OK, as
accessed by the Trademark Examining Attorney on October 15, 2009.

Serial No. 77472649
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Cajun Red Hot 17
18
ITALIAN ICE: Cajun Red Hot
19

20

The following excerpt was taken from an article on the
website of an undergraduate business program in Austin, TX:

17 http://www.kartwheelsinc.com/Shaved-ice.html, of Llano, TX, as
accessed by the Trademark Examining Attorney on October 14, 2009.

18 http://www.hawaiianshavedice.com/flavorlist.html, of Newton
Grove, NC, as accessed by the Trademark Examining Attorney on
October 15, 2009.

19 http://www.happybellys.com/products.htm, of Shreveport, LA, as
accessed by the Trademark Examining Attorney on October 15, 2009.

20 http://snow-balls.com/flavors.htm,

Serial No. 77472649
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Miranda Oropeza Leverages Entrepreneurial Education
Outside of the Classroom
When Entrepreneurship major Miranda Oropeza was assigned to conduct a feasibility
study on a potential business for one of her classes, she did more than complete the project
— in 2005, she used it to launch South Austin Sno.
Turning Classroom Smarts into Business Acumen
As founder of a business that sells “homegrown sno-cones,” Miranda credits a large
part of her success to customer suggestions. Just by listening to their ideas, she now offers
over 10,000 flavor combinations, everything from cherry to Cajun red hot.
She embraces the high level of customer interaction that her business
provides. “Sno-cone lovers come in all ages, shapes and sizes,” says Miranda, “so I
get to meet a lot of different people.” … 21

Finally, the Trademark Examining Attorney has also
provided a number of stories from newspapers around the
country using this term as a snow cone flavoring:
• Baton Rouge, LA newspaper
Smiley Anders, columnist, July 1, 2002
Only in Louisiana: Mason Jewell of New Roads invites flavored-ice lovers to "The Original
New Roads Snowball Stand" on Main Street overlooking False River.
He says the stand is open from 11 a.m. to 8 p.m. and has lots of flavors.
But the one that caught my eye was “Cajun Red Hot.” My guess is equal parts Tabasco and
Steen’s Cane Syrup … What’s your?.. 22

• Dallas, TX newspaper:
HEADLINE: COLD CAPITALISM: Rival snow cone stands battle for share of market at Ellis County
intersection
… Besides standard fare such as raspberry, cherry and strawberry, beyond even less traditional
concoctions such as amaretto and mai tai, [Gus Shedid] offers icy confections called Cajun
Red Hot, Ninja Turtle and Dinosaur … 23

• Lancaster, PA newspaper:
HEADLINE: At new mall cart, tasty snow in the forecast
After surviving the winter from you-know-where, would you pay for a handful of snow?
…
And while you can have your cherry or even plain old vanilla, the old-fashioned Snoball can
take on a newfangled twist, with such flavors as amaretto, white chocolate, piña colada, wine
cooler, cotton candy, bubble gum, kiwi, and for the experimenting type, Cajun red hot. 24

21 http://www.gotostedwards.com/x679.xml, from St. Edwards
University in Austin, TX, as accessed by the Trademark Examining
Attorney on October 15, 2009.

22 The Advocate (Baton Rouge, LA.)

23 The Dallas Morning News, June 16, 1997.

24 Lancaster (PA) New Era, April 10, 1994.
Serial No. 77472649
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Based on all of the evidence in the record, we agree with
the position of the Trademark Examining Attorney that “Cajun
Red Hot,” used for a flavoring, immediately tells consumers
that the flavoring has a Cajun profile of spices that make it
spicy-hot. We understand applicant’s argument that
traditional Cajun cuisine may not have been particularly hot,
but whatever Cajun cuisine might have meant originally, today
the term “Cajun” as used for food is understood as describing
something that is spicy. As was stated in one of the articles
quoted above:
Cajun has come to mean heat with flavor. By
this I mean that the typical Cajun seasoning
has a good source of heat from a variety of
chilies and peppers and a whole load of flavors
that rely on herbs and spices like Fennel
seeds, cinnamon and cumin … .

Manufacturers and merchants of a variety of food items
have chosen this exact combination of terms, “Cajun Red Hot,”
to indicate that their products are spicy hot. In particular,
there is substantial evidence that third-party vendors in
Louisiana, Texas, Tennessee and North Carolina, as seen above,
use this term to name a snow cone flavoring.
These third-party uses support our view that the term
“Cajun Red Hot” is merely descriptive. Applicant dismisses
any competitor’s uses by asserting that they are “unlawful
use,” although it is not clear what applicant has done to
counteract this usage. In any event, the fact that third
Serial No. 77472649
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parties consistently use this term to describe a flavoring is
an indication that manufacturers and retail merchants as well
as the ultimate snow cone consumers around the country view
“Cajun Red Hot” as a descriptive term for this particular
flavoring. In determining descriptiveness, tribunals often
look to whether competitors actually use the identical term
and/or need to use the disputed term to compete within an
established product line. See 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION, §§ 11.68 and 11.69, 4th Edition (2010).
Applicant also argues that CAJUN RED HOT is registrable on
the Principal Register because it conveys a double entendre,
citing to the well-known example of the term SUGAR & SPICE
having been found inherently distinctive for bakery products.
See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382,
384 (CCPA 1968).25 However, applicant has not explained what
non-descriptive meaning consumers would ascribe to its mark,
and a non-descriptive meaning is not readily apparent to us.
Therefore, we find that the term “Cajun Red Hot” does not
consist of a clever or incongruous combination and conveys no
double entendre.

25 In this oft-cited decision of the predecessor to our principal
reviewing court, the Court found this matter clearly functioned as a
trademark because “sugar and spice” is a well-known phrase taken
from a nursery rhyme. The composite mark is inherently distinctive
as applied to bakery products – even ones containing these two
ingredients – precisely because this combination from the nursery
rhyme is familiar to anyone seeing or hearing this mark.
Serial No. 77472649
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Rather, we find that the Trademark Examining Attorney has
demonstrated that the term, “Cajun Red Hot,” when viewed as a
whole, immediately conveys information about the flavor of the
goods. Hence, we conclude that applicant’s applied-for mark
is merely descriptive of its identified flavoring concentrate.
Genericness
The question of whether this term is capable of
functioning as a source identifier is not before us. The
Trademark Examining Attorney has already determined that this
term is registrable on the Supplemental Register. Hence, this
mark will not be published for opposition, but will proceed to
issuance on the Supplemental Register.
Decision: In view of the above findings, the refusal to
register on the Principal Register is hereby affirmed.
However, the registration will issue on the Supplemental
Register in due course.