A Pizza LLC

Trademark Trial and Appeal Board

Jan 7, 2021

88283917 (T.T.A.B. Jan. 7, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 7, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re A Pizza LLC
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Serial No. 88283917
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Thomas D. Foster of TDFoster – Intellectual Property Law,
for A Pizza LLC.
Udeme U. Attang, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
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Before Wellington, Goodman, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
A Pizza LLC (“Applicant”) seeks registration on the Principal Register of the
proposed standard character mark FOLDED PIZZA (PIZZA disclaimed) for “pizzas”
in International Class 30.1

1 Application Serial No. 88283917 was filed on January 31, 2019 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. Applicant also filed Application Serial No. 88283932 to register
the proposed mark ORIGINAL FOLDED PIZZA for pizzas. As discussed below, the panel on
this appeal previously rendered a decision affirming a final refusal to register that mark on
the ground of mere descriptiveness.
Serial No. 88283917
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The Trademark Examining Attorney refused registration of Applicant’s proposed
mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the
ground that the proposed mark is merely descriptive of the goods identified in the
application.
Applicant appealed when the Examining Attorney made the refusal final.2
Applicant and the Examining Attorney have filed briefs.3 We affirm the refusal to
register.
I. Record on Appeal4
The record on appeal consists of dictionary definitions of the words “fold” and
“pizza,” and a Wikipedia entry entitled “Calzone,” made of record by the Examining
Attorney;5 webpages using the term “folded pizza” in connection with calzones,6 made

2 The Examining Attorney issued a similar mere descriptiveness refusal as to Applicant’s
proposed mark ORIGINAL FOLDED PIZZA. Applicant appealed the final refusal to register
that mark and the panel affirmed the refusal to register on November 17, 2020. The issues
in the two cases are obviously very similar, and our decision on the other appeal provides
guidance for our disposition of this appeal.
3 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page number(s) of the docket entry where the cited materials
appear.
4 Citations in this opinion to the application record are to pages in the Trademark Status &
Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office
(“USPTO”).
5 April 13, 2019 Office Action at TSDR 2-10, 14-15.
6 The Board “may take judicial notice of information from dictionaries, encyclopedias, and
other standard referenced works,” In re Information Builders Inc., 2020 USPQ2d 10444, *3
n.6 (TTAB 2020), “including online dictionaries that exist in printed form or have regular
fixed editions.” In re MK Diamond Prods., Inc., 2020 USPQ2d 10882, *6 n.37 (TTAB 2020).
We take judicial notice that a “calzone” is “a baked or fried turnover of pizza dough stuffed
with various filings usually including cheese.” MERRIAM-WEBSTER DICTIONARY (merriam-
webster.com, last accessed on January 7, 2021).
Serial No. 88283917
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of record by the Examining Attorney;7 and a page from Applicant’s website at
apizzaforeveryone.com, made of record by the Examining Attorney.8
II. Analysis of Refusal
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), prohibits registration
on the Principal Register of “a mark which, (1) when used on or in connection with
the goods of the applicant is merely descriptive . . . of them,” unless the mark has
acquired distinctiveness under Section 2(f) of the Act, 15 U.S.C. § 1052(f).9
“A mark is ‘merely descriptive’ within the meaning of Section 2(e)(1) ‘if it
immediately conveys information concerning a feature, quality, or characteristic of
the goods or services for which registration is sought.’” In re Omniome, Inc., 2020
USPQ2d 3222, *3 (TTAB 2020) (quoting In re N.C. Lottery, 866 F.3d 1363, 123
USPQ2d 1707, 1709 (Fed. Cir. 2017)). “A mark need not recite each feature of the
relevant goods or services in detail to be descriptive, it need only describe a single
feature or attribute.” Id. (quoting In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)).
Whether a mark is merely descriptive is “evaluated ‘in relation to the particular
goods for which registration is sought, the context in which it is being used, and the
possible significance that the term would have to the average purchaser of the goods
because of the manner of its use or intended use,’” Chamber of Commerce, 102

7 April 13, 2019 Office Action at TSDR 11-13, 16-17; February 19, 2020 Final Office Action at
TSDR 2-6.
8 February 19, 2020 Final Office Action at TSDR 7.
9 Applicant does not claim that its proposed mark has acquired distinctiveness.
Serial No. 88283917
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USPQ2d at 1219 (quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Cir. 2007)), and “not in the abstract or on the basis of guesswork.” In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1513 (TTAB 2016) (citing In re Abcor Dev.
Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). We ask “whether someone
who knows what the goods and services are will understand the mark to convey
information about them.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965,
128 USPQ2d 1370, 1374 (Fed. Cir. 2018) (quoting DuoProSS Meditech Corp. v. Inviro
Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (internal
quotation omitted)). A mark is suggestive rather than merely descriptive if it requires
imagination, thought, and perception on the part of someone who knows what the
goods are to reach a conclusion about their nature from the mark. See, e.g., Fat Boys,
118 USPQ2d at 1515.
Applicant’s proposed mark consists of the words FOLDED PIZZA. We “must
consider the commercial impression of a mark as a whole.” Real Foods, 128 USPQ2d
at 1374 (quoting DuoProSS, 103 USPQ2d at 1757 (citation omitted)). “In considering
[a] mark as a whole, [we] ‘may not dissect the mark into isolated elements,’ without
‘consider[ing] . . . the entire mark,’” id. (quoting DuoProSS, 103 USPQ2d at 1757),
but we “may weigh the individual components of the mark to determine the overall
impression or the descriptiveness of the mark and its various components.” Id.
(quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed.
Cir. 2004)). Indeed, we are “required to examine the meaning of each component
Serial No. 88283917
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individually, and then determine whether the mark as a whole is merely descriptive.”
DuoProSS, 103 USPQ2d at 1758.
If the two words in the proposed mark are individually descriptive of the identified
goods, we must then determine whether their combination “conveys any distinctive
source-identifying impression contrary to the descriptiveness of the individual parts.”
Fat Boys, 118 USPQ2d at 1515-16 (quoting Oppedahl & Larson, 71 USPQ2d at 1372).
If each word instead “retains its merely descriptive significance in relation to the
goods, the combination results in a composite that is itself merely descriptive.” Id. at
1516 (citing In re Tower Tech., Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002)); see also
In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1953-55 (TTAB 2018).
“Evidence of the public’s understanding of [a] term . . . may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers[,] and other publications.” Real Foods, 128
USPQ2d at 1374 (quoting Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1046 (Fed. Cir. 2018)). “These sources may include [w]ebsites,
publications and use ‘in labels, packages, or in advertising material directed to the
goods.’” N.C. Lottery, 123 USPQ2d at 1710 (quoting Abcor Dev., 200 USPQ at 218).
“It is the Examining Attorney’s burden to show, prima facie, that a mark is merely
descriptive of an applicant’s goods or services.” Fat Boys, 118 USPQ2d at 1513 (citing
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987)). “If such a
showing is made, the burden of rebuttal shifts to the applicant.” Id. (citing In re Pacer
Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1632 (Fed. Cir. 2003)).
Serial No. 88283917
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The Examining Attorney argues that FOLDED PIZZA “is highly descriptive
because it identifies a feature and characteristic of applicant’s pizza goods,” 6
TTABVUE 3, and that “both the individual components and the composite result are
descriptive of applicant’s goods and do not create a unique, incongruous, or
nondescriptive meaning in relation to the goods.” Id. at 4. Citing dictionary
definitions of the words “fold” and “pizza,”10 the Examining Attorney argues that “the
applied-for mark FOLDED PIZZA directly conveys information about a feature and
characteristic of the goods, namely, that applicant’s pizza goods have one part laid
over another part.” Id. She also cites the third-party webpages showing the use of the
phrase “folded pizza” in connection with calzones, id., and Applicant’s own website, a
portion of which we depict below, in arguing that “consumers of pizza goods are well
acquainted with the wording FOLDED PIZZA to describe pizza in which one part is
laid over another.” Id.
11

10 April 13, 2019 Office Action at TSDR 2-10 (MERRIAM-WEBSTER DICTIONARY).
11 February 19, 2019 Final Office Action at TSDR 7 (highlighting supplied by the Examining
Attorney).
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The Examining Attorney concludes that “because one of the meanings of the term
FOLDED means ‘to lay one part over another part,’ the term is merely descriptive”
in the context of pizza, and that “this is clearly demonstrated by applicant’s own
website which describes their [sic] pizza goods as being ‘conveniently folded in half.’”
Id. at 5 (emphasis in original).
As in the appeal in Application Serial No. 88283932 to register ORIGINAL
FOLDED PIZZA, 8 TTABVUE 8 (Serial No. 88283932), Applicant’s sole argument
here is that “a mark comprising a combination of merely descriptive components is
registrable if the combination of terms creates a unitary mark with a non-descriptive
meaning, or if the composite has an incongruous meaning as applied to the goods or
services.” 4 TTABVUE 6. Citing a screenshot from an online slang dictionary
reproduced in its brief, id. at 7,12 Applicant claims that “the word ‘folded’ means
‘drunk’ which adds an alternative congruous [sic] meaning to the mark - that of a
drunk slice of pizza.” Id. at 6. Applicant claims that the proffered meaning “is akin to
such hypothetical marks as ‘The Drunk Crab’ for a restaurant that serves crab or
‘Drunk Oyster’ for an oyster bar.” Id. Applicant concludes that “[c]learly the FOLDED
PIZZA portion of applicant’s mark has an alternative incongruous meaning as applied
to the goods and the refusal should be reconsidered and withdrawn.” Id. at 7.

12 As in the appeal in Application Serial No. 88283932, Applicant did not make the screenshot
of record during prosecution, but the Examining Attorney did not object to it and addressed
Applicant’s accompanying argument on the merits, 6 TTABVUE 5, so we will consider the
screenshot and the argument. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (“TBMP”) Section 1203.02(e) (2020).
Serial No. 88283917
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As noted above, we first consider the individual elements of Applicant’s proposed
mark in determining whether the mark as a whole is merely descriptive. With respect
to the word FOLDED in Applicant’s proposed mark, the Examining Attorney made
of record a definition of the verb “fold” as “to lay one part over another part of,”13 and
Applicant’s website shown above uses “folded” in precisely that sense in stating that
Applicant’s “folded apizzas” are “conveniently folded in half” for dine-in or take-out
consumption.14 Here, as in the appeal in Application Serial No. 88283932, there is
nothing in the record, including on Applicant’s website, to support Applicant’s claim
that the word FOLDED in its mark would instead convey to its customers an
“alternative incongruous meaning,” id. at 7, of “a drunk slice of pizza.” Id. at 6. “That
a term may have other meanings in different contexts is not controlling,” In re Canine
Caviar Prods., Inc., 126 USPQ2d 1590, 1598 (TTAB 2018), and “‘[i]t is well settled
that so long as any one of the meanings of a term is descriptive, the term may be
considered to be merely descriptive.’” In re Mueller Sports Med., Inc., 126 USPQ2d
1584, 1590 (TTAB 2018) (quoting In re Chopper Indus., 222 USPQ 258, 259 (TTAB
1984)). There is no doubt that the word FOLDED in Applicant’s proposed mark is

13 April 13, 2019 Office Action at TSDR 3 (MERRIAM-WEBSTER DICTIONARY).
14 Id. at TSDR 8. As noted above, the Examining Attorney also made of record webpages in
which the term “folded pizza” is used in connection with calzones. The record does not show
that anyone other than Applicant has used the term “folded pizza” in connection with pizza
per se, but “there is no requirement that the Examining Attorney prove that others have used
the mark at issue or that they need to use it,” Fat Boys, 118 USPQ2d at 1514, and the “fact
that Applicant may be the first or only user of a term does not render that term distinctive,
if it otherwise meets the standard” for descriptiveness. Id.
Serial No. 88283917
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merely descriptive of the goods because it describes the fact that certain of Applicant’s
pizzas are “conveniently folded in half” for consumption on- or off-premises.
The disclaimed word PIZZA at the end of the proposed mark is the singular form
of the goods identified in the application as “pizzas” and has no source-identifying
significance. As a generic term, PIZZA is “‘the ultimate in descriptiveness.’” In re
Serial Podcast, LLC, 126 USPQ2d 1061, 1063 (TTAB 2018) (quoting H. Marvin Ginn
Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 960, 228 USPQ 528, 530 (Fed. Cir.
1986)).
Like Applicant’s proposed mark ORIGINAL FOLDED PIZZA in Application Serial
No. 88283932, Applicant’s proposed mark FOLDED PIZZA here is no more than the
sum of its merely descriptive parts. As shown above, Applicant’s website gives no
indication that Applicant claims “folded pizza” as its trademark, but rather explains
that a “folded apizza” is a pizza that is “conveniently folded in half.” The “explanatory
text accompanying the [proposed] mark is not complicated,” N.C. Lottery, 123
USPQ2d at 1710, and the “commercial context here demonstrates that a consumer
would immediately understand the intended meaning of” FOLDED PIZZA, id.,
namely, that it describes a type of pizza that is “folded in half” for convenient dine-in
or take-out consumption. The “evidence shows that the mark is less an identifier of
the source of the goods . . . and more a description of a feature or characteristic of
those goods . . . .” Id. Because each word in the proposed mark “retains its merely
descriptive significance in relation to the goods, the combination results in a
composite that is itself merely descriptive.” Fat Boys, 118 USPQ2d at 1516. We find
Serial No. 88283917
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that the Examining Attorney established a prima facie case that the proposed mark
FOLDED PIZZA is merely descriptive of the goods, and that Applicant failed to rebut
that case.15
Decision: The refusal to register is affirmed.

15 Applicant argues that “[a]t the very least . . . applicant has raised doubts about the ‘merely
descriptive’ character of the mark,” and that “it is clear that such doubts are to be resolved
in favor of applicants.” 4 TTABVUE 7. Applicant correctly states the law in cases of doubt
regarding mere descriptiveness, but as in the appeal in Serial No. 88283932, we have no
doubt that FOLDED PIZZA is merely descriptive of pizza that is folded in half.