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Federal Circuit Affirms TTAB Refusal to Register ‘CHURRASCOS’

trademark-gavel-bIn Re: Cordua Restaurants, Inc., (Fed. Cir. May 13, 2016) (Before Dyk, Stoll, and Prost, C J.) (Opinion for the court, Dyk, J.) Click Here for a copy of the opinion.

In a May 13, 2016 decision, the Federal Circuit affirmed a Trademark Trial and Appeal Board (TTAB) decision upholding an Examiner’s denial of registration based on a finding that the term CHURRASCOS was generic as used for a restaurant, because the word “refer[s] to beef or grilled meat more generally” and that the term “identifies a key characteristic or feature of the restaurant services, namely, the type of restaurant.”

On appeal, the Federal Circuit found that the TTAB sustained the examiner’s determination that “churrascos” is a generic term with respect to restaurant services, after concluding that the examiner had proved this fact by clear and convincing evidence—a burden borne by the Patent and Trademark Office in every registration proceeding.  The Court clarified that “[t]he critical issue in genericness cases 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.”  Specifically, genericness involves asking “[f]irst, what is the genus of goods or services at issue? Second, is the term … understood by the relevant public primarily to refer to that genus of goods or services?”

Here, the Court cited the TTAB’s explicit holding that “the examining attorney has established by clear evidence that the general public (the consumers of restaurant services) understands that churrascos is generic for a type of restaurant, specifically a restaurant that serves ‘churrascos.’”  The Court similarly upheld the TTAB’s genericness finding with respect to a stylized version of the “churrascos” mark, which concluded that “the display of Applicant’s mark, consisting primarily of stylized letters, does not make the applied-for matter registrable, despite the genericness of the term CHURRASCOS, since it does not create a separate commercial impression over and above that made by the generic term.”

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