Business Building Solutions, LLC

Trademark Trial and Appeal Board

Jul 31, 2017

No. 86306250 (T.T.A.B. Jul. 31, 2017)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: Mailed:
June 21, 2017 July 31, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Business Building Solutions, LLC
_____

Serial No. 86306250
_____

Dominic J. Souza of Souza LLC for Business Building Solutions, LLC.

Priscilla Milton, Trademark Examining Attorney,1 Law Office 110, Chris A. F.
Pedersen, Managing Attorney.
_____

Before Cataldo, Adlin, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
Business Building Solutions, LLC (“Applicant”), trading as The Breakfast Shoppe,
filed an application to register on the Principal Register THE BREAKFAST
SHOPPE in standard characters for “Catering services,” in International Class 43.2

1 At oral hearing, Deborah L. Meiners appeared for the USPTO.
2 Application Serial No. 86306250 was filed on June 11, 2014 under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a), based on Applicant’s asserted use of the mark in
commerce, stating January 1, 1988 as the date of first use and first use in commerce.
Applicant has disclaimed the exclusive right to use SHOPPE apart from the mark as
shown.
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The Trademark Examining Attorney originally refused registration under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that Applicant’s
mark is merely descriptive of the identified services. When Applicant requested
registration under Section 2(f), 15 U.S.C. § 1052(f), on the ground that the mark had
acquired distinctiveness, the Examining Attorney refused registration on the
additional ground that the proposed mark is generic and therefore incapable of
distinguishing the identified services, or, alternatively, that the mark is merely
descriptive and that Applicant had failed to show acquired distinctiveness under
Section 2(f). While continuing to pursue registration under Section 2(f), Applicant
maintained, as an alternative position, that its mark was neither generic nor
merely descriptive. When the Examining Attorney made both refusals final,
Applicant appealed to this Board and requested reconsideration. The Examining
Attorney denied the request for reconsideration and this appeal proceeded. The case
is fully briefed.
1. Refusal on grounds of genericness.
We first address the Examining Attorney’s refusal to register the proposed mark
on the ground that it is generic for the identified services. A designation is generic if
it refers to the class or category of goods or services on or in connection with which
it is used. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807
(Fed. Cir. 2001) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782
F.2d 987, 228 USPQ 528 (Fed. Cir. 1986) (“Marvin Ginn”)). The test for determining
whether a proposed mark is generic is its primary significance to the relevant
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public. In re American Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir.
1999); Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir.
1991); Marvin Ginn, supra. Making this determination “involves a two-step inquiry:
First, what is the genus of goods or services at issue? Second, is the term sought to
be registered … understood by the relevant public primarily to refer to that genus of
goods or services?” Marvin Ginn, 228 USPQ at 530. The Examining Attorney has
the burden of establishing by clear evidence that a mark is generic. In re Merrill
Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir.
1987); In re American Fertility Soc’y, supra; Magic Wand Inc., supra. “Doubt on the
issue of genericness is resolved in favor of the applicant.” In re DNI Holdings Ltd.,
77 USPQ2d 1435, 1437 (TTAB 2005).
(a) The genus of Applicant’s services.
Because the identification of goods or services in an application defines the scope
of rights that will be accorded the owner of any resulting registration under Section
7(b) of the Trademark Act, generally “a proper genericness inquiry focuses on the
description of services set forth in the [application or] certificate of registration.”
Magic Wand, 19 USPQ2d at 1552 (citing Octocom Sys., Inc. v. Houston Computer
Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). In this case, the
identification of services, “Catering services,” is clear in meaning and is an
appropriate expression of the genus of services at issue.3 Accordingly, we proceed to

3 To “cater” means “to provide food and drinks at a party, meeting, etc., especially as a job”;
“to provide a supply of food”; and “to provide food and service for .”
Definition at , Office Action of December 11, 2015 at 71.
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consider whether the term THE BREAKFAST SHOPPE is understood by the
relevant public primarily to refer to catering services.
(b) Public understanding of THE BREAKFAST SHOPPE.

The relevant public consists of individuals and businesses interested in
purchasing foods and food services. The Examining Attorney has made of record the
following relevant dictionary definitions:
breakfast: the first meal you have in the morning;

a meal consisting of the things people often have for breakfast,
for example eggs or bacon.4

shop: a building or room where goods and services are sold

the place where a specified kind of worker works : a worker’s
place of business

also shoppe : a small retail establishment or a department in a
large one offering a specified line of goods or services

a business establishment : OFFICE .5

shoppe: Variant of shop.6

The Examining Attorney argues that a “breakfast shop” “is a type of business
establishment wherein breakfast food is a primary item and central focus of the
services”;7 and that, although this term appears to be used primarily to identify a

4 Definition from MACMILLAN DICTIONARY, Office Action of September 22, 2014 at 5.
5 Definition from , id. at 8-9.
6 Definition from THE AMERICAN HERITAGE DICTIONARY, Office Action of July 25, 2016 at
193-194.
7 Examining Attorney’s brief, 23 TTABVUE 14.
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restaurant that specializes in breakfast, “consumers are familiar with restaurants
that provide … catering services in remote places.”8
Applicant argues that the Examining Attorney’s attempt to connect restaurant
services with catering services is “an enormous leap.”9 Applicant points out that it
has deleted all reference to its restaurant services from the application, and that
“with the narrowing of the identification of goods and services to only applicant’s
catering service, the level of descriptiveness has diminished greatly.”10
There is ample evidence of record to show that members of the consuming public
use the expression “breakfast shop” to describe restaurants that specialize in
breakfast. The Office Action of May 12, 2015 includes the following references:
We have been looking for a breakfast shop for a while in
North Port … (Yelp comment, p. 30).
If you can’t cook eggs, don’t work at a breakfast shop.
(Yelp comment, p. 34).
The hotel … offers a breakfast shop … (hotel
advertisement, p. 36).
I should open up a breakfast shop!!! Best omelet in the
world! (Social media chatter, p. 38).
With good reason, the Galley is known as a breakfast
shop. (Galley Diner advertisement, p. 39).
Opening a breakfast shop in a small space … was
definitely not in Silvana Salcido Esparza’s plans …
(Phoenix Business Journal article, p. 41).

8 Id., 23 TTABVUE 15.
9 Applicant’s brief, 21 TTABVUE 5.
10 Id., 21 TTABVUE 7.
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Student Group to Open Breakfast Shop at Minooka High
School. … [T]he 20-plus member group has been working
on business plans to have a breakfast shop up and
running at the central campus by the beginning of
February. (Channahon-Minooka Patch article, p. 45-6).
Breakfast Shop. (Title of photograph of restaurant, p. 50).
i remember the two days i spent in park city with my
parents. how each of those two mornings we began at a
breakfast shop: bagel with egg and cheese … (personal
blog, p. 56).
Additional evidence of generic use is found in the Office Action of December 11,
2015:
Profitable coffee & breakfast shop on busy intersection!
Grand Island, NE (Hall County) Seller Financing
Available. (Advertisement, p. 37).
Oak Park breakfast shop … Food truck owner ready to
open Oak Park breakfast shop (Chicago Tribune article, p.
62-3).
Waterfront sandwich breakfast shop - $20000 (Hazlet).
(Craigslist advertisement, p. 68-9).
Next up is a famous part of McLean tradition,
Chesapeake Bagels. This is the definition of a breakfast
shop. (The Saxon Scope Online article, p. 75).
The same Office Action includes evidence of third-party restaurants that refer to
themselves as “breakfast shops,” including the following:
THE BREAKFAST SHOPPE (Swannanoa, NC) (p. 19);
SUNRISE BREAKFAST SHOPPE (p. 35);
JARDEK’S DOUGHTNUT & BREAKFAST SHOP (p. 43);
DEWEY’S BREAKFAST SHOP (p. 48);
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HELEN’S BREAKFAST SHOP (p. 52);
ASHLEY’S BREAKFAST SHOP (p. 56).
Other examples of third-party restaurants that refer to themselves as “breakfast
shops” can be found in the Office Action of May 12, 2015:
LANA’S BREAKFAST SHOP (p. 69);
WALT’S FAMILY BREAKFAST SHOP (p. 79).
In order to demonstrate that restaurants typically offer catering services, the
Examining Attorney has submitted internet web pages of the following
establishments, which indicate that both restaurant and breakfast catering services
are offered (all included in the Office Action of July 25, 2016):
Einstein Bros Bagels (pp. 77-78)
Garry’s Grill & Catering (pp. 79-83)
The Works Bakery Café (pp. 84-85)
Cobblestone Market Café (pp. 100-101).
The following establishments offer restaurant and catering services (but not
necessarily breakfast catering):
Olive Garden Italian Kitchen (pp. 145-147)
Carrabba’s Italian Grill (pp. 148-157)
Bertucci’s Italian Restaurant (pp. 158-160)
Chick-fil-A (pp. 161-162)
Levi’s Restaurant (pp. 180-181)
Quiznos (pp. 182)
Di Paolo’s Italian Restaurant (pp.183-185)
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Pepe’s Mexican Restaurants (pp. 186-188)
Beef It Up Sandwich Shop (pp. 189-190).
The Examining Attorney also submitted 12 use-based third-party registrations that
individually cover both restaurant services and catering services.11 Such third-party
registrations “may serve to suggest that such … services are of a type which may
emanate from a single source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
We find that the evidence of record persuasively demonstrates that Applicant’s
proposed mark is a generic name for the type of business that Applicant operates;
and that relevant customers would readily understand the term “breakfast shoppe”
to refer to a category of establishment that provides catering services, and,
specifically, breakfast catering services. As the dictionary definition from shows, the word “shop” is broad in application and may be used to
identify any kind of “business establishment.”12 While the evidence shows that the
public often uses “breakfast shop” to refer to restaurants that are known for their
breakfast foods, the evidence also shows that restaurants commonly provide
catering services, including breakfast catering.13 Just as the public would
understand “breakfast shop” to refer to a restaurant offering breakfast foods, they

11 Office Action of July 25, 2016 at 200-238.
12 , Office Action of September 22, 2014 at 8-9.
13 At oral argument, the Examining Attorney also pointed out that the definition of “cater”
is broad enough to mean providing a source of food for others, which is what restaurants do.
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would as readily understand it to refer to a restaurant that provides breakfast
catering, such as Einstein Bros Bagels or The Works Bakery Café.
Applicant’s use of the term SHOPPE, instead of the more standard spelling
“shop,” does not change the generic nature of the proposed mark, because dictionary
evidence shows that SHOPPE is a recognized variant of “shop.” The definite article
THE adds no source indicating significance to the term, as it can be applied with
equal validity to any catering establishment.
Applicant’s objection that the Board must not “simply cite definitions and generic
uses of the constituent terms of a mark … in lieu of conducting an inquiry into the
meaning of the disputed phrase as a whole” (citing In re American Fertility Society,
51 USPQ2d at 1836)14 is inapposite, because the Examining Attorney has provided
much evidence of the use of the expression “breakfast shop” as a whole.
Applicant’s contention that its catering services “are not limited to breakfast
foods” and that “[t]he term ‘breakfast shoppe’ does not describe general catering
services”15 does not affect our decision. The relevant question is not whether
Applicant’s proposed mark is generic with respect to the services Applicant actually
provides in the marketplace, but rather whether it is generic with respect to the
services identified in the application. In re Cordua Rests., Inc., 823 F.3d 594, 118
USPQ2d 1632, 1636 (Fed. Cir. 2016) (citing Octocom v. Houston Computer Servs., 16
USPQ2d at 1787). Clearly the identification “Catering services” includes within its

14 Applicant’s brief, 21 TTABVUE 6.
15 Id.
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scope breakfast catering of the type illustrated in the evidence of third-party
caterers.
Applicant has made of record a number of registrations of marks that include the
term SHOP or SHOPPE and which Applicant characterizes as “far more
descriptive” than its own.16 However, as the Cordua Court observed, each
application must be examined on its own merits, and the USPTO is required to
examine all trademark applications for compliance with each and every eligibility
requirement, including non-genericness, regardless of the way other applications
may have been processed. In re Cordua Rests., Inc., 118 USPQ2d at 1635 (citing In
re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even
if some prior registrations had some characteristics similar to Nett Designs'
application, the PTO's allowance of such prior registrations does not bind the Board
or this court.”)).
That there is no evidence “that actually shows use of the term ‘the breakfast shop’
to substitute for the word ‘catering’”17 does not require a different result. The
generic name of the type of business that offers particular services would be
understood by relevant customers as referring to the genus of the offered services.
As the Board stated in In re Wm. B. Coleman Co., 93 USPQ2d 2019 (TTAB 2010):
[T]hough applicant contends ELECTRIC CANDLE
COMPANY is not the term the relevant public would use
to describe the genus, the relevant public would
nonetheless understand ELECTRIC CANDLE

16 Applicant’s brief, 21 TTABVUE 7; Applicant’s response of October 26, 2015 at 13-43;
Applicant’s response of June 10, 2016 at 10-15.
17 Applicant’s brief, 21 TTABVUE 5.
Serial No. 86306250

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COMPANY to refer to a company that offers electric
candles, and public understanding is critical. [Citation
omitted.] It is, therefore, incapable of identifying source
for electric candles because it is a term a purchaser would
understand and could use to refer to the type of company
that sells electric candles, and must be left available for
use by other such companies selling electric candles.
Id. at 2027. The U.S. Supreme Court, in a seminal case, reached a similar
conclusion. Goodyear's Rubber Manufacturing Co. v. Goodyear Rubber Co., 128 U.S.
598, 602 (1888) (holding that adding terms such as “Corp.”, “Inc.”, and “Co.” to a
generic term does not add any trademark significance to an otherwise unregistrable
mark). See also In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370,
1373 (Fed. Cir. 2004) (“Although not a perfect analogy, the comparison of TLDs (i.e.,
‘.com,’ ‘.org,’ etc.) to entity designations such as ‘Corp.’ and ‘Inc.’ has merit. The
commercial impression created by ‘.com’ is similar to the impression created by
‘Corp.’ and ‘Co.’, that is, the association of a commercial entity with the mark.”);
Ashley Furniture Industries Inc. v. SanGiacomo N.A. Ltd., 187 F.3d 363, 51
USPQ2d 1609, 1612 (4th Cir. 1999) (“[T]he trade name ‘Pet Store’ for a shop that
sold pets would be generic.”); The Vette Shop, Inc. v. Roy, 542 F.2d 20, 192 USPQ
554, 555 (6th Cir. 1976) (affirming finding “that the term ‘Vette Shop’ is a generic
term and not subject to protection under the Lanham Act.”); Miller’s Ale House Inc.
v. Boynton Carolina Ale House LLC, 702 F.3d 1312, 105 USPQ2d 1345, 1350, n.10
(11th Cir. 2012) (“If, for example, Boynton Garden Shop is the only local user of this
seemingly generic phrase, residents might well only use the words ‘the garden shop’
in reference to it. This fact should not inhibit a competitor from opening a ‘Carolina
Garden Shop.’”).
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We find that the relevant public would understand the term THE BREAKFAST
SHOPPE primarily to refer to the genus of catering services and therefore we
AFFIRM the refusal to register Applicant’s proposed mark on the ground that it is
generic.
2. Refusal on grounds of mere descriptiveness and lack of acquired
distinctiveness.

We turn next to the Examining Attorney’s refusal to register the mark on grounds
that it is merely descriptive of the identified services under Section 2(e)(1) and has
not acquired distinctiveness under Section 2(f). During prosecution of the
application, Applicant maintained that its mark was not merely descriptive of
catering services.
A term is merely descriptive under Section 2(e)(1) if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic, feature, function, purpose
or use of the services. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012); see also In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987). A mark need not immediately convey an idea of each
and every specific feature of the services in order to be considered merely
descriptive; it is enough if it describes one significant attribute, function or property
of the services. See In re Gyulay, 3 USPQ2d at 1010.
Implicit in our holding that THE BREAKFAST SHOPPE is generic for Applicant's
services is a holding that the mark is at least merely descriptive of the services
under Section 2(e)(1). “The generic name of a thing is in fact the ultimate in
descriptiveness.” H. Marvin Ginn Corp., supra, at 530. The dictionary evidence
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alone demonstrates that Applicant’s mark immediately conveys the idea of a
business establishment that provides breakfast foods, which is an accurate
description of a significant aspect of a caterer’s services.
Applicant argues, in the alternative, that its mark has acquired distinctiveness as
Applicant’s source indicator. Acquired distinctiveness is generally understood to
mean an acquired “mental association in buyers’ minds between the alleged mark
and a single source of the product.” 2 J. Thomas McCarthy, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 15:5 (4th ed. June 2016 update). We
determine whether Applicant’s mark has acquired distinctiveness based on the
entire record, keeping in mind that Applicant has the “ultimate burden of
persuasion” as to acquired distinctiveness. See Yamaha International Corp. v.
Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1004 (Fed. Cir. 1988). The
amount and character of evidence required to establish acquired distinctiveness
depends on the facts of each case and the nature of the mark sought to be
registered. See Roux Labs., Inc. v. Clairol Inc., 427 F.2d 823, 829, 166 USPQ 34, 39
(CCPA 1970); In re Hehr Mfg. Co., 279 F.2d 526, 528, 126 USPQ 381, 383 (CCPA
1960).
Applicant initially filed a verified declaration of its attorney averring that the
mark had become distinctive through Applicant’s substantially exclusive and
continuous use in commerce for at least five years.18 We agree with the Examining
Attorney that such a statement is insufficient, in this case, to demonstrate that

18 Applicant’s response of November 14, 2014 at 1.
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Applicant’s mark has acquired distinctiveness. See In re La. Fish Fry Prods., Ltd.,
797 F.3d 1332, 116 USPQ2d 1262, 1265 (Fed. Cir. 2015) (“the Board was within its
discretion not to accept [applicant’s] alleged five years of substantially exclusive and
continuous use as prima facie evidence of acquired distinctiveness.”).
Applicant subsequently submitted a verified declaration of its Managing Member,
Jeffrey Edward Fitchett,19 and an updated version of the same declaration.20 The
updated declaration states that Applicant has been using the mark for restaurant
and catering services continuously and exclusively since at least as early as
January 1, 1988; that Applicant’s establishment is “very well known and popular”
as a restaurant and caterer in Maryland. The declaration attests to average annual
sales of $1,250,000 over the last five years, and average annual advertising
expenditures of $3,500 “in the past.”21 Mr. Fitchett states that Applicant’s business
has received “positive reviews on the internet and in local publications, as well as
positive professional food critic reviews in magazines and publications such as
Rachel Ray’s Food Magazine, WBAL TV Baltimore, The Splendid Table national
radio show, and The Baltimore Sun”; that it has received accolades for best
breakfast from What’s Up Annapolis and Capital Gazette, and Best Bruch from
Severna Park Voice Newspaper; has had a Zagat rating for 4 consecutive years; and
is a “Member BBB Accredited Business.” Applicant’s Facebook page “has received

19 Applicant’s response of April 16, 2015 at 4-6.
20 Applicant’s request for reconsideration of June 10, 2016 at 7-8.
21 The declaration submitted on April 16, 2015 stated these revenue and advertising figures
for restaurant services; the declaration submitted on June 10, 2016 stated the same figures
for catering services.
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over 14,000 hits since it was started in June 2010 and includes almost 5,000
favorable reviews.”
In addition to its specimens of use, Applicant submitted two examples of
advertisements and a listing on the website .22
Applicant argues that “with the narrowing23 of the identification of goods and
services to only applicant’s catering service, the level of descriptiveness has
diminished greatly. … [W]ith a mark that is minimally descriptive, the level of
evidence required is minimal.” Applicant points to third-party registrations which
Applicant characterizes as “far more descriptive” than its own, and argues that
several of them issued “with only a simple assertion of five years exclusive and
continuous use.”24
As we have discussed above, the Examining Attorney has adduced evidence of at
least eight restaurants with trade names that include the term “breakfast shop” or
“breakfast shoppe.” Non-exclusive use presents a serious problem for the individual
seeking to acquire trademark rights in a term that is not inherently distinctive,
because it interferes with the relevant public’s perception of the term as an
indicator of a single source. Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222
USPQ 939, 940-1 (Fed. Cir. 1984) (“When the record shows that purchasers are
confronted with more than one (let alone numerous) independent users of a term or

22 Applicant’s response of April 16, 2015 at 7-9.
23 I.e., by the deletion of “restaurant and cafe services” and “restaurant and catering
services” from the identification. See Applicant’s response of October 26, 2015 at 2.
24 Applicant’s brief, 21 TTABVUE 7; Applicant’s response of October 26, 2015 at 13-43;
Applicant’s response of June 10, 2016 at 10-15.
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device, an application for registration under Section 2(f) cannot be successful, for
distinctiveness on which purchasers may rely is lacking under such
circumstances.”). See also In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227
USPQ 417, 424 n.11 (Fed. Cir. 1985); and ERBE Elektromedizin GmbH v. Canady
Tech. LLC, 629 F.3d 1278, 97 USPQ2d 1048, 1057 fn.5 (Fed. Cir. 2010). Although
the third-party users of the term that Applicant seeks to register appear to be
restaurants more than caterers, the record shows that restaurants commonly
provide catering services.
The Examining Attorney also submitted at least 13 examples of ordinary
consumers using the expression “breakfast shop” to refer to restaurants or caterers
other than Applicant, as discussed above. Such examples of usage suggest that
Applicant’s marketing and promotional efforts have not succeeded in causing
relevant customers to perceive THE BREAKFAST SHOPPE as an indication of
Applicant as the source of catering services.
Considering all of the evidence of record (including evidence not specifically
addressed herein), we are not persuaded that Applicant’s mark has acquired
distinctiveness. Applicant has only a single location, in Severna Park, Maryland.
Applicant’s revenues have been modest and its advertising expenditures have been
small. The existence of third-party registrations for other marks that include
SHOPPE or SHOP does not require a finding of acquired distinctiveness for the
reasons stated above in our discussion of genericness. The evidence shows that
Applicant has not been alone in its use of the term “breakfast shop” as part of a
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mark or trade name; and that persons who have an interest in purchasing breakfast
foods use the term “breakfast shop” to describe a type of establishment, rather than
one particular establishment. We find that Applicant has failed to demonstrate that
its mark has become distinctive of its identified services within the meaning of
Section 2(f). Accordingly, we AFFIRM the Examining Attorney’s refusal to register
the mark under Section 2(e)(1).
Decision: The refusal to register Applicant’s proposed mark on the ground
that it is generic is AFFIRMED. The refusal to register the mark on the ground that
it is merely descriptive under Section 2(e)(1) and has not acquired distinctiveness
under Section 2(f) is AFFIRMED.