The All American Gourmet Co.

Trademark Trial and Appeal Board

Dec 16, 1999

No. 75226831 (T.T.A.B. Dec. 16, 1999)

Paper No. 12
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC. 16, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re The All American Gourmet Company
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Serial No. 75/226,831
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Bert A. Collison of Nims, Howes, Collison, Hansen & Lackert
for The All American Gourmet Company.
Mitchell Front, Trademark Examining Attorney, Law Office
111 (Craig Taylor, Managing Attorney).
_______
Before Cissel, Chapman and Rogers, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
The All American Gourmet Company has filed an
application to register the mark shown below
for “entrees, dinners, and side dishes principally
consisting of meat, poultry, fish, shellfish, seafood,
cheese or vegetables” in International Class 29; and
Ser. No. 75/226831
2
“entrees, dinners, and side dishes principally consisting
of rice or pasta” in International Class 30.1
Registration has been finally refused under Section 6
of the Trademark Act on the basis of applicant’s failure to
comply with a requirement to disclaim the word “GOURMET.”
Such word, according to the Examining Attorney, is merely
descriptive of applicant’s goods within the meaning of
Section 2(e)(1) of the Trademark Act, and therefore must be
disclaimed.
Applicant has appealed.2 Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm.
It is the Examining Attorney’s position that the term
“gourmet” is a laudatory term which conveys a sense of
quality about the food products, e.g., high quality or
skillfully prepared; and that when the mark is viewed in
its entirety, the term “gourmet” is an unregistrable
component of an otherwise registrable mark. As evidence in

1 Application Serial No. 75/226,831, filed January 16, 1997,
wherein applicant alleges a bona fide intent to use the mark in
commerce.
2 Applicant’s application includes two classes of goods, but
applicant paid an appeal filing fee for only one class of goods.
Applicant is advised that one additional appeal fee has been
charged to applicant’s deposit account to cover the appeal fee
for the second class of goods. See Trademark Rules 2.6(a)(18),
2.85(e) and 2.141.
Ser. No. 75/226831
3
support of this position, the Examining Attorney submitted
the following dictionary definitions:
(1) “gourmet” from The Random House
Unabridged Dictionary (2nd ed. 1993)3
defined as “n. 1. a connoisseur of fine
food and drink; epicure. -adj. 2. of or
characteristic of a gourmet, esp. in
involving or purporting to invovle high-
quality or exotic ingredients and skilled
preparation: gourmet meals; gourmet
cooking. 3. elaborately equipped for the
preparation of fancy, specialized or
exotic meals: a gourmet kitchen.”; and
(2) “gourmet” and “gourmet foods”
from Webster’s New World Dictionary of
Culinary Arts defined, respectively, as
“A connoisseur of fine food and drink,”
and “A term used imprecisely to denote
foods of the highest quality, perfectly
prepared and beautifully presented.”
The Examining Attorney also submitted 25 third-party
Principal Register registrations4 showing disclaimers of the
term “gourmet” apart from the marks used in connection with
food products; and excerpts retrieved from the Nexis
database showing “gourmet foods” used in the food industry
to describe high-quality food products.

3 This definition was submitted with the Examining Attorney’s
brief, along with a request that the Board take judicial notice
thereof. The Examining Attorney’s request for judicial notice of
the dictionary definition is granted. See TBMP §712.
4 The Examining Attorney stated that he found 214 active
registrations in Classes 29 and 30 with disclaimers of the term
“gourmet.”
Ser. No. 75/226831
4
Applicant argues that when the mark is considered in
its entirety, the term “gourmet” is suggestive. Applicant
explains in its brief as follows:
“a consumer encountering the
applicant’s mark will not have a direct or
immediate association of the mark with
gourmet food, but rather is more likely to
associate the word ‘GOURMET’ with the
design of a chef which in this instance is
the applicant, the manufacturer of the food
products sold under the trademark.” (p. 5);
and
“At most, it is suggestive that
applicant is the ‘chef’ for food products
appealing to the entire family.” (pp. 6-7).
That is, applicant essentially contends that in this case
the term “gourmet” is a noun referring to an individual,
and not an adjective used to describe the quality of the
goods. Applicant also contends that it owns three
registrations for the mark THE BUDGET GOURMET and one for
the mark THE BUDGET GOURMET LITE, all for food products,
and all without a disclaimer of the term “gourmet”; and
that a registration to applicant in the current case will
not prevent others from using the term “gourmet.” Finally,
applicant contends that its goods are not exotic, elegant
goods, but rather are pre-cooked, family style frozen
dinners, entrees and side dishes which are sold in
supermarkets and grocery stores, thus rendering applicant’s
Ser. No. 75/226831
5
use of the term “gourmet” incongruous; and that any doubt
on the issue of descriptiveness should be resolved in
applicant’s favor.
It is well settled that a term or phrase is considered
merely descriptive of goods or services, within the meaning
of Section 2(e)(1), if it immediately conveys information
concerning an ingredient, quality, characteristic or
feature thereof, or if it directly conveys information
regarding the nature, function, purpose or use of the goods
or services. See In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215 (CCPA 1978). It is not necessary that a
term describe all of the properties or functions of the
goods or services in order for it to be considered to be
merely descriptive thereof; rather, it is sufficient if the
term describes a significant attribute of them. Moreover,
whether a term or phrase is merely descriptive is
determined in relation to the goods or services for which
registration is sought. See In re Bright-Crest, Ltd., 204
USPQ 591 (TTAB 1979). See also, In re Consolidated Cigar
Co., 35 USPQ2d 1290 (TTAB 1995); and In re Pennzoil
Products Co., 20 USPQ2d 1753 (TTAB 1991). Terms which are
laudatory are also regarded as being merely descriptive
because these laudatory terms are seen as a form of
describing the quality of the goods. See 2 J. Thomas
Ser. No. 75/226831
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McCarthy, Trademarks and Unfair Competition, §11:17 (4th
ed. 1998), and cases cited therein.
The Examining Attorney has established that the term
“gourmet” is a laudatory term which relates to food
products, often involving or purporting to involve high-
quality ingredients or skilled preparation of foods. This
term is unregistrable by itself for these goods.
Applicant’s argument that the term may be construed to
refer to a person, specifically here a “chef,” which in
turn, relates to applicant as the manufacturer of the
goods, is unpersuasive. First, there is no evidence of
record that the purchasing public would consider the term
“gourmet” within applicant’s mark in the two-step process
explained by applicant. Second, even if viewed by the
purchasing public in the manner suggested by applicant
(i.e., as a noun referring to a “chef”), we find the term
“gourmet” remains merely descriptive in relation to
applicant’s goods because it refers to skillful preparation
by a master chef. The third-party registrations submitted
by the Examining Attorney include uses of “gourmet” as both
an adjective and as a noun, but all include disclaimers of
the word. See In re Omaha National Corporation, 819 F.2d
1117, 2 USPQ2d 1859 (Fed. Cir. 1987). The design feature
of applicant’s mark, namely, the depiction of a chef’s hat
Ser. No. 75/226831
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and scarf, does not negate the descriptive significance of
the word “gourmet” as applied to entrees, dinners and side
dishes principally consisting of meat, poultry, fish,
shellfish, seafood, cheese, vegetables, rice or pasta. See
In re Lean Line, Inc., 229 USPQ 781 (TTAB 1986)
(requirement for a disclaimer of the merely descriptive
term “lean” for a variety of low calorie foods affirmed);
In re IBP, Inc., 228 USPQ 304 (TTAB 1985) (requirement for
a disclaimer of the merely descriptive terms “select trim”
for pork affirmed); and In re Truckwriters Inc., 219 USPQ
1227 (TTAB 1983), aff’d unpubl’d Appeal No. 84-689 (Fed.
Cir., November 1, 1984) (requirement for a disclaimer of
the merely descriptive term “writers” for insurance agency
services affirmed).
Applicant argues that the term “gourmet” is
incongruous in relation to its goods, which are family-
style frozen foods sold in supermarkets and grocery stores,
and they are not elegant or exotic foods sold in specialty
stores. Applicant’s identification of goods is not so
limited, rendering this argument unpersuasive. See
Canadian Imperial Bank of Commerce, N.A. v. Wells Fargo
Bank, 811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
Applicant’s argument that it has obtained four
registrations for the marks THE BUDGET GOURMET and THE
Ser. No. 75/226831
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BUDGET GOURMET LIGHT, each without any disclaimer of the
term “gourmet,” is also not persuasive. The Examining
Attorney acknowledges that applicant obtained these
registrations which do not include a disclaimer of the word
“gourmet,” but he contends that each case must be decided
on its own facts.
It is clear that there are registered marks which
include the word “gourmet” with a disclaimer; and there are
applicant’s four registrations which do not include such
treatment of the term “gourmet.” Thus, we acknowledge that
the records of the Patent and Trademark Office are
inconsistent with regard to the Office treatment of the
word “gourmet.” However, while the Office strives for
consistency, we must decide each case on its own facts and
record. See In re Consolidated Foods Corp., 200 USPQ 477
(TTAB 1978). The mere fact that there have been
inconsistencies in how Examining Attorneys treated the word
“gourmet” in other applications does not raise a doubt as
to the merely descriptive nature of the mark now before us.
Common and laudatory terms of this character must remain
available for the trade and competitive use to which they
are so relentlessly put.
Decision: The requirement under Section 6 for a
disclaimer of the term “gourmet” is proper. In the absence
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9
of a disclaimer of “gourmet” registration is refused. If a
disclaimer is entered within thirty days from the mailing
date hereof, this decision will be vacated and the mark
will then be published for opposition. See Trademark Rule
2.142(g).
R. F. Cissel
B. A. Chapman
G. E. Rogers
Administrative Trademark Judges,
Trademark Trial and Appeal Board