Saturday, May 14, 2016

The term “churrascos” is generic for restaurant services

The CAFC affirmed the TTAB in the Cordua Restaurants case:

The Board’s decision contains no harmful legal error, and the Board’s finding that the mark is generic is supported by substantial evidence. We affirm.

Of the generic issue:

The PTO disputes Cordua’s contention that the ’321 Registration had achieved incontestable status at the time of appeal to the TTAB. We need not address this question, because even if the earlier registration were incontestable, incontestability is irrelevant to the question of genericness. Section 15(4) of the Lanham Act mandates that “no incontestable right shall be acquired in a mark which is the generic name for the goods or services or a portion thereof, for which it is registered.” 15 U.S.C. § 1065(4). “[A] registered mark may be canceled at any time on the grounds that it has become generic.” Park ’N Fly, 469 U.S. at 194.

Of foreign terms:

“Under the doctrine of foreign equivalents, foreign words from common languages are translated into English to determine genericness, descriptiveness, as well as similarity of connotation . . . .” Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1377 (Fed. Cir. 2005); see also In re Spirits Int’l, N.V., 563 F.3d 1347, 1351 (Fed. Cir. 2009). Because “churrasco” is a common word in Spanish and Portuguese and because the ’191 Application itself concedes that “churrascos” means “barbecue,” the PTO would have been justified in translating “churrascos” into “barbecue” and
subsequently determining whether the term “barbecue” is generic when applied to restaurant services. Indeed, the examiner aptly remarked that “a foreign equivalent of a generic English word is no more registrable than the English word itself.” J.A. 71. But the examiner, and the Board, did not rely here on the doctrine of foreign equivalents. Instead, the examiner and the Board found that “churrasco” is used in the English language to refer to grilled meat. The evidence before the Board included, inter alia, three Englishlanguage dictionaries that define “churrasco” as grilled meat. See Cordua, 2014 WL 1390504, at *3. Two of the dictionaries specify that the meat is steak or beef. Id. The dictionaries constitute evidence that “churrasco” is a generic English-language term for grilled meat, especially grilled steak. Cordua essentially concedes this point. In its brief, Cordua concedes “‘churrasco’ can be used as a noun meaning grilled steak specially prepared in the churrasco style.” Appellant’s Br. at 47. However, Cordua contends that the addition of the “S” at the end of CHURRASCOS makes the term non-generic. That is, while Cordua concedes that “churrasco” describes a grilled steak, it argues that adding an “S” changes the term’s meaning because “churrascos” is not the proper pluralization of “churrasco” in Spanish. While each trademark must always be evaluated individually, pluralization commonly does not alter the meaning of a mark. See In re Belgrade Shoe Co., 411 F.2d 1352, 1353 (CCPA 1969); Wilson v. Delaunay, 245 F.2d 877, 878 (CCPA 1957). Since “churrascos” is an English-language term, there is nothing in the record to indicate that the addition of the “S” at the end alters its meaning (beyond making the word plural).


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