HRHH IP, LLP

Trademark Trial and Appeal Board

Apr 4, 2018

No. 86525431 (T.T.A.B. Apr. 4, 2018)

This Opinion is Not a
Precedent of the TTAB

Hearing: October 19, 2017 Mailed: April 4, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re HRHH IP, LLC
_____

Serial Nos. 86525425 and 86525431
_____

Jill M. Pietrini, of Sheppard Mullin Richter & Hampton LLP,
for HRHH IP, LLC.
Sani Khouri, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
_____

Before Kuhlke, Heasley, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
HRHH IP, LLC (“Applicant”) seeks registration on the Principal Register of the
mark THE JOINT (in standard characters) for:
Entertainment services, namely, live musical performances, shows, and
concerts; and nightclub services, in International Class 41;1 and

1 Application Serial No. 86525425 (for the Class 41 services) was filed on February 5, 2015,
under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as March 10, 1995.

Serial Nos. 86525425 and 86525431
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Restaurant, bar and catering services, in International Class 43.2

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 respectively identified services. When Applicant
requested, in the alternative, 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).
Applicant maintained that its mark was neither generic nor merely descriptive,
and continued to pursue registration under Section 2(f) in the alternative. When the
Examining Attorney made each refusal final, Applicant appealed and filed a request
for reconsideration for each application. After the Examining Attorney denied the
requests for reconsideration, the appeals were resumed, and an oral hearing was held
October 19, 2017. We affirm the refusals to register.
I. Appeals Consolidated

These appeals involve common questions of law and fact and the records are
substantially similar. The hearing was presided over by this panel and included a
discussion of both applications. Accordingly, we consolidate and decide each appeal

2 Application Serial No. 86525431 (for the Class 43 services) was also filed on February 5,
2015, under Section 1(a) of the Trademark Act, based upon Applicant’s claim of first use
anywhere and use in commerce since at least as early as March 10, 1995.

Serial Nos. 86525425 and 86525431
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in this single decision.3 See In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009); TBMP
§ 1214 (June 2017).
II. Refusal on Ground 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. See 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, 530 (Fed. Cir. 1986) (“Marvin Ginn”)). Generic terms are by
definition incapable of indicating a particular source of the services, and cannot be
registered as service marks; doing so “would grant the owner of the mark a monopoly,
since a competitor could not describe his goods [or services] as what they are.” In re
Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142
(Fed. Cir. 1987) (quoting CES Publ’g Corp. v. St. Regis Publ’ns, Inc ., 531 F.2d 11, 188
USPQ 612, 615 (2d Cir. 1975)).
The test for determining whether a proposed mark is generic is its primary
significance to the relevant public. In re Am. Fertility Soc’y, 188 F.3d 1341, 51
USPQ2d 1832, 1836 (Fed. Cir. 1999); Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19
USPQ2d 1551, 1552 (Fed. Cir. 1991); Marvin Ginn, 228 USPQ at 530. Making this
determination involves “a two-step inquiry: First, what is the genus of goods or

3 Unless otherwise specified, all TTABVUE and TSDR citations refer to the docket and
electronic file database for Application Serial No. 86525425. All citations to the TSDR
database are to the downloadable .pdf version of the documents.
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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?” Princeton
Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827, 1830 (Fed.
Cir. 2015) (citing Marvin Ginn, 228 USPQ at 530).
The Examining Attorney has the burden of establishing by clear evidence that a
mark is generic. Merrill Lynch, 4 USPQ2d at 1143; Am. Fertility Soc’y, 51 USPQ2d
at 1835. The Examining Attorney must “analyze the term in relation to the services
recited in the application, the context in which it is used[,] and the possible
significance it would have to the recipient of the services.” Marvin Ginn, 228 USPQ
at 530. Evidence of the public’s understanding of a term may be obtained from any
competent source, including dictionaries, trade journals, newspapers, and other
publications. See Princeton Vanguard, 114 USPQ2d at 1830 (citing In re Northland
Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985)).
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 [goods or] services set forth in the [application or] certificate of
registration.” Magic Wand, 19 USPQ2d at 1552 (citing Octocom Sys., Inc. v. Houston
Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). In
these consolidated cases, the identifications of services are clear in meaning and are
Serial Nos. 86525425 and 86525431
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appropriate expressions of the genus of services at issue.4 Accordingly, we proceed to
consider whether the term THE JOINT is understood by the relevant public primarily
to refer to live musical performances, shows, and concerts, and nightclub services
(Application Serial No. 86525425, for the Class 41 services); and restaurant, bar and
catering services (Application Serial No. 86525431, for the Class 43 services).
B. Public understanding of THE JOINT
The relevant public for a genericness determination is the purchasing or
consuming public for the identified goods or services. Magic Wand, 19 USPQ2d at
1553. Because there are no restrictions or limitations to the channels of trade or
classes of consumers in Applicant’s identifications of services, the relevant consuming
public consists of ordinary consumers who attend live musical performances, shows,
and concerts; and who use nightclub, restaurant, bar, and catering services.
“An inquiry into the public’s understanding of a mark requires consideration of
the mark as a whole. Even if each of the constituent words in a combination mark is
generic, the combination is not generic unless the entire formulation does not add any
meaning to the otherwise generic mark.” In re 1800Mattress.com IP LLC, 586 F.3d
1359, 92 USPQ2d 1682, 1684 (Fed. Cir. 2009) (quoting In re Steelbuilding.com, 415
F.3d 1293, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005)). Nonetheless, the Federal Circuit
has noted that it may be appropriate “as a first step” to analyze the constituent terms

4 The Examining Attorney repeatedly stated that the identifications of services adequately
define the genera at issue. See December 15, 2015 Office Action, TSDR 1; July 11, 2016 Office
Action, TSDR 1; and Examining Attorney’s brief, 10 TTABVUE 5-6. Applicant did not dispute
these characterizations in any of its responses to Office actions or in its appeal or reply briefs.
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in the applied-for mark. Princeton Vanguard, 114 USPQ2d at 1833. See also
1800Mattress.com IP, 92 USPQ2d at 1684 (explaining that the Board appropriately
considered the separate meanings of “mattress” and “.com” when determining that
the combination “mattress.com” was generic); In re Hotels.com LP, 573 F.3d 1300,
1304, 91 USPQ2d 1532, 1535 (Fed. Cir. 2009) (affirming the Board’s finding that “the
composite term HOTELS.COM communicates no more than the common meanings
of the individual components”).
In undertaking our analysis, we keep in mind that while we look to the primary
significance of the mark, we look to the applied-for mark in relation to the identified
services, and we note that all possible generic names for a service must remain in the
public domain. See 2 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 12:9 (5th ed., Sept. 2017 update) (“There is usually no one, single and
exclusive generic name for a product. Any product may have many generic
designations. Any one of those is incapable of trademark significance.”).
Applicant and the Examining Attorney submitted the following definitions of the
word JOINT:
• An establishment of a specified kind, especially one where people
meet for eating, drinking or entertainment: ‘a burger joint;’5

• (originally slang) A restaurant, bar, nightclub or similar business;6

5 May 18, 2015 Office Action at TSDR 4 (from www.oxforddictionaries.com/us/definition/
american_english/joint); and July 11, 2016 Final Office Action at TSDR 19 (same).
6 Exhibit C to November 23, 2015 Response to Office Action at TSDR 20 (from
en.wiktionary.org/wiki/joint).
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• Slang [a] cheap or disreputable gathering place: ‘The tavern is ... just
a joint with Formica tables, a vinyl floor, lights over the mirrors’
(Scott Turow);7

• Slang. Establishment: place ;8

• bar or nightclub: a place of entertainment, e.g., a nightclub,
especially one considered cheap or disreputable (slang);9

• prison: a prison or similar penal institution (slang);10

• North American Prison;11
• A prison. Often used with the;12 and
• (slang) (always with ‘the’) prison;13
and Applicant submitted the following definition of the term THE JOINT:
• “jail or prison.”14

7 Exhibit B to November 23, 2015 Response to Office Action at TSDR 15 (from www.
ahdictionary.com/word/search.html?q=joint).
8 Webster’s II New Riverside University Dictionary © 1988, attached to an August 15, 1995
Office Action accompanying January 17, 2017 Request for Reconsideration at TSDR 465.
9 January 17, 2017 Request for Reconsideration at TSDR 479 (from encarta.msn.com/encnet/
features/dictionary/DictionaryResults...).
10 Id.
11 May 18, 2015 Office Action at TSDR 4 (from www.oxforddictionaries.com/us/definition/
american_english/joint).
12 Exhibit B to November 23, 2015 Response to Office Action at TSDR 15 (from www.
ahdictionary.com/word/search.html?q=joint).
13 Exhibit C to November 23, 2015 Response to Office Action at TSDR 20 (from
en.wiktionary.org/wiki/joint).
14 Exhibit D to November 23, 2015 Response to Office Action at TSDR 26 (from
onlineslangdictionary.com/meaning-definition-of/the-joint).
Serial Nos. 86525425 and 86525431
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In addition, the Board takes judicial notice of the following dictionary definitions
of the word THE:15
• definite article – used as a function word to indicate that a following
noun or noun equivalent is definite or has been previously specified
by context or by circumstance;16
• def. art. Used before singular or plural nouns and noun phrases that
denote particular, specified persons or things. Used before a singular
noun indicating that the noun is generic;17

• definite article (used, especially before a noun, with a specifying or
particularizing effect, as opposed to the indefinite or generalizing
force of the indefinite article a or an) and (used to mark a noun as
being used generically).18

The Examining Attorney attached to the July 11, 2016 Final Office Action
excerpts of several articles taken from the Lexis-Nexis database using the word
JOINT in context with entertainment and eating establishments. Many of the
excerpts demonstrate use of the term THE JOINT:
“In what other line of work is 20 percent failure considered a success?”
asked Ron Fournier of the National Journal. “If one out of every five

15 Neither Applicant nor the Examining Attorney submitted a definition of THE. The Board
may take judicial notice of dictionary definitions, including online dictionaries that exist in
printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823
F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). The Board may notice dictionary definitions
sua sponte. See University of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ
594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
16 From www.merriam-webster.com/dictionary/the. Merriam-Webster © 2015. Accessed
October 31, 2017.
17 From www.ahdictionary.com/word/search.html?q=the. THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE, FIFTH EDITION. Houghton Mifflin Harcourt
Publishing Company © 2017. Accessed October 31, 2017.
18 From http://www.dictionary.com/browse/the?s=t. RANDOM HOUSE UNABRIDGED
DICTIONARY. Dictionary.com, LLC © 2017. Accessed October 31, 2017.
Serial Nos. 86525425 and 86525431
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meals served by a restaurant is inedible, the joint goes out of
business.”19

Crazy for ChoLon, the LoDo pan-Asian restaurant? The joint’s triumph
rests, in part, on the shoulders of its chef, Lon Symensma. Now he and
his partners plan to open Gather, a cafe where the emphasis will be on
more breakfast sandwiches, lunchtime soups, happy-hour small plates
and coffee rather than Singapore-style lobster and roasted venison
chops.20

Delta’s, situated in a former firehouse, is not your ordinary soul food
restaurant. The joint jumps on Thursdays, Fridays and Saturdays,
when DJs and jazz and R&B groups turn Delta’s into a happening spot.21

The restaurant’s website announces: “(Our snarky bartenders asked us
to tell you we don’t take reservations, and due to the presence of video
poker machines only those 21 and over are allowed in the restaurant.)”
The joint is open “11 to closing” and guest reviews rave about the
gumbo, the crab claws and the fried chicken.22

Linda recruits everyone for her murder mystery theater production
inside the restaurant, including Mort for some of the special effects (he’s
mum on whether the blood and viscera he brings over is real). Later,
Gene slides across a blood-puddled restaurant floor, and a robber busts
into the restaurant to case the joint but ends up tangoing with Linda -
who, ever a sucker for the limelight and spontaneous singing, duets with
him before he dances his way out of the store with a bag of cash.23

The joint: Pita Restaurant & Market, 73 Main St., Brockport; (585)
391-3156. Dine in or take out.
The meal: Shawarma combo
The check: $14.03
The story: First, you’re thinking, “Fourteen bucks ain’t cheap.” In this
case, it is. I ate barely half of my shawarma combo, so it made

19 PITTSBURGH POST-GAZETTE, December 1, 2013; TSDR 5.
20 THE DENVER POST, October 31, 2012; TSDR 6.
21 THE STAR-LEDGER (Newark, New Jersey), August 1, 2012; TSDR 6-7.
22 MOUNTAIN DEMOCRAT (Placerville, California), May 27, 2016; TSDR 8.
23 THE DAILY EMERALD: University of Oregon, May 22, 2016; TSDR 9.
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for a large lunch the next day, too. This is two meals, easy -
or a meal ...24

William Eggleston, the near-mythic southern gentleman and father of
color photography, who is placed in the pantheon of the greats alongside
Walker Evans and Robert Frank, greeted me with a courtly little bow at
his favorite hangout in New York City, El Quijote restaurant, the joint
adjoining the Chelsea Hotel.25

If anyone knows how to make vegan desserts not terrible, it should be a
vegan restaurant. The joint has a half[-]dozen cupcake flavors in
rotation every day.26
History San Jose is gearing up for another fundraising celebration of
Manny’s Cellar on Sept. 18 in the historic downtown Fallon House,
which was once home to the restaurant and bar. The joint was a haunt
for the city’s movers and shakers from 1962 until 1990, when owner
Manny Pereira closed because of the Fallon House restoration. “Manny’s
is a special place for so many, and this event provides the opportunity to
relive history by reminiscing, swapping stories, and enjoying music and
a great meal,” said History San Jose CEO Alida Bray. 27

I came back home and wrote one of my first Drive-Thru Gourmet reviews
about Lombardi’s Coal Oven Pizza in the Houston Chronicle. I went into
the history of the restaurant, described the joint and raved about the
pizza.28

The others demonstrate use of the word JOINT. The following excerpts are
representative:
Aina Burger from Ate-Oh-Ate
What are the chances of finding a great burger at an unfussy Hawaiian
joint? When said restaurant happens to spring from the mind of
Laurelhurst Market co-owner Ben Dyer, pretty high.29

24 ROCHESTER DEMOCRAT AND CHRON. (New York), April 14, 2016; TSDR 10.
25 VANITY FAIR, December 2015; TSDR 13.
26 CURRENT (San Antonio), November 11, 2015 - November 17, 2015; TSDR 13.
27 SAN JOSE MERCURY NEWS (California), August 21, 2015; TSDR 15.
28 THE HOUS. CHRON., June 28, 2015; TSDR 15.
29 THE OREGONIAN, September 5, 2014; TSDR 4.
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Domino’s isn’t the first restaurant joint to offer incentives for ordering
online, either. Competitor Papa John's consistently promotes special
offers for digital orders, such as a free giant cookie with any pizza
purchase.30

While he wishes he had done some things differently, he has no regrets:
“The best thing we can do is remember and learn from them.” Walter
hopes to pursue a college degree in business and one day open his own
music/restaurant joint.31

I’d pulled the rolling metal gates down over the storefront of Elaine’s,
the legendary restaurant on the Upper East Side, and just as I was
about to put the padlocks on, I realized that I wasn't sure if my boss,
Elaine Kaufman, had left or not. She had. But in that moment, at 4 a.m.
on the sidewalk, it occurred to me that Elaine might have been perfectly
happy spending the night locked in her restaurant. Her relationship
with her joint, as she called it, was co-dependent. She didn’t want to be
anywhere else, and the place couldn’t exist without her.32

It is well known that the location of Bar-Eat-O was formerly Vital Spot
sports bar, which was most notably a late night and weekend hangout
joint.33

During prosecution of the applications, Applicant argued that “the critical
difference between [dictionary] definitions [of JOINT] and Applicant’s mark THE
JOINT is the addition of the word THE before JOINT. The term THE JOINT is
American slang for ‘prison’ or ‘jail.’”34 Applicant claimed that “[t]he addition of the
word THE before JOINT transforms the meaning of Applicant’s mark into a
recognized phrase in the American vernacular” such that the “composite mark THE
JOINT, as opposed to just JOINT, transforms the public’s potential perception of the

30 THE SAN DIEGO UNION-TRIB., July 17, 2014; TSDR 4.
31 THE PHILA. INQUIRER, May 21, 2013; TSDR 6.
32 THE N.Y. TIMES, May 26, 2011; TSDR 7.
33 THE LAMRON: SUNY at Geneseo, February 7, 2016; TSDR 11.
34 June 15, 2016 Response to Office Action, TSDR 4.
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mark . . . .”35
We are not convinced of this transformation. Two of the dictionary definitions of
“joint” meaning “prison” are listed without any indication that “joint” must be
preceded by the word “the.”36 Another definition of “joint” meaning “prison” is listed
with an indication that “joint” is merely “often used with the.”37 Just one definition of
“joint” meaning “prison” indicates that it is “always used with ‘the,’”38 and there is
but one corroborating definition of “the joint” provided by Applicant indicating that
“joint, the” means “jail or prison.”39 Applicant’s transformation argument is even less
convincing when the term THE JOINT is considered in relation to the identified
services (which do not include prison or jail services).
Applicant also argues that the Lexis-Nexis excerpts that refer to THE JOINT “are
always preceded or succeeded by the name of the [establishment], in order for the
reader to understand what ‘the joint’ is referring to.”40 This argument reinforces the

35 January 17, 2017 Request for Reconsideration, TSDR 6 and 7.
36 See definitions from encarta.msn.com (January 17, 2017 Request for Reconsideration at
TSDR 479) and oxforddictionaries.com (May 18, 2015 Office Action at TSDR 4).
37 See definition from ahdictionary.com (Exhibit B to November 23, 2015 Response to Office
Action at TSDR 15).
38 See definition from en.wiktionary.org (Exhibit C to November 23, 2015 Response to Office
Action at TSDR 20).
39 See definition from onlineslangdictionary.com (Exhibit D to November 23, 2015 Response
to Office Action at TSDR 26). Although this resource includes “American, English, and Urban
Slang,” the Examining Attorney did not challenge the resource; moreover, inasmuch as the
entry and definition appear to have been “[s]ubmitted by Walter Rader (Editor) from
Sacramento, CA USA,” we presume the definition is American slang.
40 Brief, p. 8 (7 TTABVUE 13).
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dictionary definitions of the word “the” as a definite article used to indicate that the
word following it (here, “joint”) has been previously specified by context.
We are concerned with the primary public perception, not just any possible
perception, of the term THE JOINT to ordinary consumers who attend live musical
performances, shows, and concerts; and who use nightclub, restaurant, bar, and
catering services. That the term THE JOINT may have other meanings (e.g., prison)
in different contexts is immaterial, since our genericness inquiry is not conducted in
the abstract but focuses on the description of services in the applications, see Magic
Wand, 19 USPQ2d at 1552, and how consumers would perceive the mark in
connection with those services. See, e.g., Remington Prods. Inc. v. North Am. Philips
Corp., 892 F.2d 1576, 13 USPQ2d 1444, 1448 (Fed. Cir. 1990) (assessing
descriptiveness and genericness by looking at how a consumer would perceive the
mark “in connection with the products”). In analyzing the constituent terms THE and
JOINT, we consider the meaning of each to the consuming public as indicated by the
dictionary definitions and Lexis-Nexis articles. See Northland Aluminum Prods., 227
USPQ at 963. When put together as THE JOINT, both “the” and “joint” retain their
meanings and nothing further is added. The addition of the article “the” before “joint”
does not expand the meaning of the word “joint” to primarily indicate a prison or jail.
Instead, as the evidence shows, “the” is simply a definite article used to modify “joint.”
Based upon the definitions and the Lexis-Nexis excerpts, THE JOINT may be
primarily defined as a restaurant, bar, nightclub, or other establishment where
people meet for eating, drinking, or entertainment – the precise services Applicant
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provides.
Applicant argues that its mark “also functions as a double entendre, namely, a
potentially playful or ironic reference to ‘prison’.”41 Even assuming that THE JOINT
may in the abstract be a double entendre, we point out that for trademark purposes
a double entendre is an expression that has a double connotation or significance as
applied to the goods or services. TMEP § 1213.05(c) (Oct. 2017). The multiple
interpretations that make an expression a double entendre must be associations that
the public would make fairly readily, and must be readily apparent from the mark
itself, in relation to the goods or services in the identification. See In re Brown-
Forman Corp., 81 USPQ2d 1284, 1287 (TTAB 2006) (finding GALA ROUGE for
“wines” is not unitary, and has no pre-existing well-recognized significance with
regard to applied-for goods); In re The Place, Inc., 76 USPQ2d 1467, 1470 (TTAB 2005)
(finding THE GREATEST BAR for “restaurant and bar services” is not a double
entendre; “A mark is thus deemed to be a double entendre only if both meanings are
readily apparent from the mark itself.”); In re Ethnic Home Lifestyles Corp., 70
USPQ2d 1156, 1158-59 (TTAB 2003) (finding ETHNIC ACCENTS for TV programs
in the field of home décor merely descriptive and noting, “To have a double entendre,
both meanings must be readily apparent, but the meaning suggested by applicant is
not apparent upon seeing the mark in connection with the services.”); In re Polo Int’l
Inc., 51 USPQ2d 1061, 1063 (TTAB 1999) (finding in context DOC in DOC-CONTROL
would be understood to refer to the “documents” managed by applicant’s software,

41 Brief, p. 10 (7 TTABVUE 15).
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not “doctor” as shown by dictionary definition); cf. In re Grand Metropolitan
Foodservice Inc., 30 USPQ2d 1974, 1976 (TTAB 1994) (finding MUFFUNS, and
design as a double entendre and not merely descriptive of baked mini muffins) (citing
In re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (finding SUGAR
& SPICE not merely descriptive for various bakery products)). Despite Applicant’s
argument, there is nothing in the record that would lead us to believe that consumers
would associate the concept of “the joint” as a prison with its entertainment services,
nightclub services, restaurants, bars, or catering services.
We have not ignored Applicant’s other evidence, including, (1) an entry from
nolo.com/legal-encyclopedia, explaining that prisons “(also called penitentiaries and,
in slang, ‘the joint,’ ‘the pen,’ ‘the big house,’ or ‘up the river’) are normally operated
by the federal and state governments, and their purpose is long-term incarceration;”42
(2) an excerpt from folsomprisonmuseum.org showing two photographs under the
header “Folsom Prison - As It Looks Now - Around The Joint - Unique Shots;”43 (3)
an excerpt from the DNA Bail Bonds website showing use of the tagline “Quick
service bail bondsman: your ticket to get out [sic] the joint!”;44 (4) a baltimoresun.com
article mentioning what happens after Mike Tyson and Martha Stewart “get[] out of

42 Exhibit E to November 23, 2015 Response to Office Action at TSDR 31 (from www.nolo.
com/legal-enclyclopedia/what-s-the-difference-between-jail-prison.html).
43 Exhibit F to November 23, 2015 Response to Office Action at TSDR 33 (from
folsomprisonmuseum.org/now/now24.html).
44 Exhibit G to November 23, 2015 Response to Office Action at TSDR 35-36 (from
dnabailbondsnc.com/quick-service-bail-bondsman-your-ticket-to-get-out-the-joint/).
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the joint;”45 and (5) an article from hiphopearly.com about Gucci Mane’s plans “when
he does get out of the joint.”46 The first of these exhibits reveals that “the joint” is but
one of several slang terms for a prison, the second exhibit uses “the joint” in reference
to a specific prison, and the remaining exhibits reference a phrase “get out of the
joint” in context of being released from prison. None of the exhibits appears to bear
on the primary public perception of the term THE JOINT to ordinary consumers who
attend live musical performances, shows, and concerts or who use nightclub,
restaurant, bar, and catering services; except perhaps the Gucci Mane article which,
by its very subject (i.e., Gucci Mane, a musician, as indicated in the letter he wrote
from prison) relates to a musical artist. Once again we remind Applicant that our
genericness inquiry is not conducted in the abstract but is focused on the description
of services in the applications and how consumers would perceive the mark in
connection with those services. Four of these exhibits have nothing to do with the
services, and are not probative of the perception of ordinary consumers who attend
live musical performances, shows, and concerts, or who use nightclub, restaurant,
bar, and catering services. A single article about a musician’s “plans for when he does
get out of the joint” is insufficient to persuade us that the relevant public’s primary
perception of THE JOINT would be prison – not nightclubs, restaurants, bars, or
other establishments where people meet for eating, drinking, or entertainment, as

45 Exhibit H to November 23, 2015 Response to Office Action at TSDR 38-40 (from articles.
baltimoresun.com/2005-02-07...).
46 Exhibit I to November 23, 2015 Response to Office Action at TSDR 42-44 (from news.
hiphopearly.com/Gucci-mane-writes-fans-nadwritten-letter-prison/).
Serial Nos. 86525425 and 86525431
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clearly demonstrated by the dictionary definitions and article excerpts taken from the
Lexis-Nexis database.
During prosecution of the applications, Applicant submitted approximately 60
third-party registrations for marks containing the word JOINT and covering services
in Class 41, and approximately 30 third-party registrations covering restaurant
services in Class 43.47 The sole reference to these registrations in its appeal brief is
the following sentence found in the “procedural background” section: “Applicant
submitted evidence of third party registrations incorporating JOINT in Class[es] 41
[and 43] which did not receive a genericness refusal to register.”48 Applicant
otherwise makes no argument in its brief related to the third-party registrations.
Nonetheless, we note that when Applicant submitted the third party registrations it
made two primary arguments related thereto.
For the Class 41 registrations, Applicant argued that because most of the
registrations are for medical or educational services rather than entertainment
services,49 they demonstrate that JOINT is not widely used or recognized for
nightclub or entertainment services; and that it is inconsistent and illogical for
Applicant’s mark THE JOINT to be considered generic while the third-party marks

47 See January 17, 2017 Request for Reconsideration 4 TTABVUE 7-9 (list of registrations)
and 4 TTABVUE 16-437 (registrations, as Exhibits 1-60) for Class 41; and January 17, 2017
Request for Reconsideration for Application Serial No. 86525431 at 7 TTABVUE 7-9 (list)
and 16-551 (registrations, as Exhibits 1-32) for Class 43.
48 Brief, p. 3 (7 TTABVUE 8).
49 A review of the Class 41 third-party registrations quickly reveals that most of the
registrations, as Applicant has itself stated, do not contemplate entertainment or nightclub
services.
Serial Nos. 86525425 and 86525431
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are considered, at most, merely descriptive of entertainment and educational
services. 4 TTABVUE 10. As to the first argument, Applicant provided no authority
for the idea that when a word is not routinely registered as part of a mark for certain
services, it therefore follows that the word is not generic for those services. Indeed,
as we noted supra, “[t]here is usually no one, single and exclusive generic name for a
product. Any product may have many generic designations. Any one of those is
incapable of trademark significance.” See 2 J. THOMAS MCCARTHY, MCCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION § 12:9 (5th ed., Sept. 2017 update). The
absence of frequent registration of a term does not mean that the term is not generic.
As to the second argument, educational services are not at issue or probative of the
question of whether THE JOINT is generic for Applicant’s identified entertainment
services. Of the third-party registrations that cover entertainment services, many do
not contemplate live musical performances, shows, concerts, or nightclub services.50
For those registrations that do contemplate live musical performances, shows,
concerts, or nightclub services, some of the marks may be considered unitary or

50 See JOINTS CHIEF OF STAFF (Exh. 2, 4 TTABVUE 21), JUKE JOINT PRODUCTIONS
(Exh. 15, 4 TTABVUE 110), A SPIKE LEE JOINT (Exh. 29, 4 TTABVUE 203), POETS
JOINT (Exh. 38, 4 TTABVUE 271), JOINT OPERATIONS (Exh. 39, 4 TTABVUE 278),
CREAKYJOINTS (Exh. 48, 4 TTABVUE 342), CRAZY JOINT (Exh. 49, 4 TTABVUE 350),
JOINT SERVICE OPEN HOUSE ANDREWS AIR SHOW (Exh. 53, 4 TTABVUE 377), and
THE JOINT (Exh. 54, 4 TTABVUE 383).
Serial Nos. 86525425 and 86525431
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contain a unitary phrase,51 and others have disclaimed the word “joint.”52 There is no
third-party registration for Applicant’s exact mark for Applicant’s exact services;
therefore, no third-party registration reveals that the Office has previously
considered THE JOINT to be, at most, merely descriptive of the specific
entertainment services identified in Applicant’s application.53
Similarly, for the Class 43 registrations, Applicant argued that the Office “has
repeatedly found the word JOINT to be, at most, descriptive rather than generic of
services in Class 43.” 7 TTABVUE 7 (for 86525431). In support of this argument,
Applicant attached Office actions from the application files underlying third-party

51 See THE JOINT CHIEFS (Exh. 18, 4 TTABVUE 130), JUKE JOINT FESTIVAL (Exh. 21,
4 TTABVUE 148), JUKE JOINT FESTIVAL (Exh. 22, 4 TTABVUE 156), JOINT DAMAGE
(Exh. 25, 4 TTABVUE 177), JOINT MOVEMENT PRODUCTIONS (Exh. 28, 4 TTABVUE
197), JOINT SUPERCHIEFS: ARMO, NAVO, MARINO, AIRFO (Exh. 30, 4 TTABVUE 209),
JOINT’S JUMPIN’ (Exh. 45, 4 TTABVUE 322), and JOINT HEIRS (Exh. 52, 4 TTABVUE
371). A disclaimer of a nondistinctive component of a unitary mark is not required. See TMEP
§§ 1213.05(b) et seq. (Unitary Phrases).
52 See JUKE JOINT PROPHETS (Exh. 4, 4 TTABVUE 35; disclaimer of JUKE JOINT), JUKE
JOINT JOKERS (Exh. 20, 4 TTABVUE 142; disclaimer of JUKE JOINT), SOUL SISTA’S
JUKE JOINT (Exh. 33, 4 TTABVUE 236; disclaimer of JUKE JOINT), JOINT BASE LEWIS-
MCCHORD SOLDIERS & AIRMEN DEFENDING AMERICA (Exh. 46, 4 TTABVUE 328;
disclaimer of JOINT BASE and unrelated meaning).
53 We are aware of Exhibit 54 (4 TTABVUE 383), print outs for Registration No. 2652379 for
the mark THE JOINT for “entertainment services, namely, providing audio programs
featuring music, sports, talk, news and data via satellite and via a global communication
network” – different, but possibly related services. The Examining Attorney did not cite this
registration as a bar to registration of either application. The Board may remand an
application for further examination where an issue not previously raised may render the
mark unregistrable. Trademark Rule 2.142(f), 37 CFR § 2.142(f). Because that issue is not
before us on appeal, this case is ripe for decision, and in view of our determination below, we
do not remand for consideration of that registration. We note, however, in the event this
decision is reversed in any further appeal, and Registration No. 2652379 is still registered,
Application Serial No. 86525425 (covering Applicant’s Class 41 services) should be remanded
for consideration by the Examining Attorney as to whether Registration No. 2652379 could
present a further bar to registration under Section 2(d).
Serial Nos. 86525425 and 86525431
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registrations of marks incorporating the word “joint” for restaurant services, which
Applicant claims show that the respective examining attorneys “deemed JOINT to be
merely descriptive, rather than generic, of the recited services or not even descriptive
at all.” Id. Of the approximately 30 registrations submitted, only seven have no
disclaimer of the word “joint” and in each the word “joint” may be considered part of
a unitary phrase.54 For the remaining registrations for which an Office action issued
during examination of the underlying applications in which the respective examining
attorneys required a disclaimer of the word “joint” because that word merely
describes the services, Applicant’s argument that the examining attorneys deemed
“joint” to be merely descriptive rather than generic is spurious. “A generic term is . . .
‘merely descriptive’” and “is in fact the ultimate in descriptiveness.” Marvin Ginn,
228 USPQ at 532. Use by examining attorneys of the word “descriptive” when
requiring a disclaimer does not mean that a mark or portion thereof to be disclaimed
is not generic; indeed, generic words are descriptive. Id. It is examination procedure
to initially refuse registration of an unregistrable term on the Principal Register as
merely descriptive, and refuse based on genericness only after an applicant asserts
acquired distinctiveness under Section 2(f). TMEP § 1209.02(a). This procedure is
also applicable to a requirement for a disclaimer of a term. At any rate, the existence

54 See A BURGER JOINT WITH A PASSION FOR CRAFT BEER (Exh. 2, 7 TTABVUE 31),
BLUNT BROS. A RESPECTABLE JOINT (Exh. 4, 7 TTABVUE 71), THE GIN JOINT (Exh.
11, 7 TTABVUE 205), BGR THE BURGER JOINT ON TOUR (Exh. 17, 7 TTABVUE 290), A
FUN, CASUAL JOINT (Exh. 19, 7 TTABVUE 345), MICKEY & MOOCH THE OTHER
JOINT (Exh. 20, 7 TTABVUE 355), JAVA JOINT (Exh. 22, 7 TTABVUE 378; Supplemental
Register), and FISHERMAN’S MARKET & GRILL “THE FRESH FISH JOINT” (Exh. 32, 7
TTABVUE 542).
Serial Nos. 86525425 and 86525431
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of third-party registrations for other marks that include the word JOINT does not
require a finding that Applicant’s mark THE JOINT is not generic when used in
connection with live musical performances, shows, and concerts, and nightclub,
restaurant, bar and catering services.
In sum, the record demonstrates that the primary consumer perception of the
term THE JOINT, as a whole, is that of a common name for the identified services,
namely, nightclubs, restaurants, and bars. In light of the evidence of record, including
dictionary definitions and evidence showing that members of the consuming public
use the term “the joint” and the word “joint” itself to describe entertainment and
eating establishments, including nightclubs, restaurants, and bars, we find that the
Examining Attorney has clearly demonstrated that Applicant’s proposed mark is a
generic name for Applicant’s services; and that relevant customers would understand
the term THE JOINT primarily to refer to a nightclub, restaurant, or bar.55 We
therefore AFFIRM the refusal to register Applicant’s proposed mark on the ground
that it is generic.

55 Although these services represent only a portion of Applicant’s entire recitations of
services, a refusal on the ground of genericness is proper with respect to all of the identified
services in an International Class if the mark is generic for any of the identified services in
that class. In re Cordua Rests., 118 USPQ2d at 1638 (“A registration is properly refused if
the word is the generic name of any of the goods or services for which registration is sought.”
(quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 12:57)). Having found
THE JOINT generic for some of the services in both refused Classes 41 and 43, we find that
registration is appropriately denied for the entire classes. See In re Analog Devices, Inc., 6
USPQ2d 1808, 1810 (TTAB 1988), aff’d, 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989)
(unpublished).
Serial Nos. 86525425 and 86525431
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III. Refusal on Grounds of Mere Descriptiveness and Lack of Acquired
Distinctiveness

For completeness 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 applications, Applicant maintained that its mark was not merely descriptive of
the identified services.
A. Mere descriptiveness
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 JOINT 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). As noted above, “[t]he generic name of a thing is in fact the ultimate in
descriptiveness.” Marvin Ginn, 228 USPQ at 530. The dictionary evidence alone
demonstrates that Applicant’s mark immediately conveys the idea of a business
establishment that provides live musical performances, shows, and concerts, and
nightclub, restaurant and bar services.
Serial Nos. 86525425 and 86525431
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B. Acquired distinctiveness
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 (5th ed., March 2018 update). See also
In re Steelbuilding.com, 75 USPQ2d at 1422 (“To show that a mark has acquired
distinctiveness, an applicant must demonstrate that the relevant public understands
the primary significance of the mark as identifying the source of a product or service
rather than the product or service itself.”) quoted in Apollo Med. Extrusion Techs.,
Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1851 (TTAB 2017).
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 Int’l Corp. v. Hoshino Gakki
Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1004 (Fed. Cir. 1988). The kind and amount
of evidence necessary to establish that a proposed mark has acquired distinctiveness
in relation to goods or services depends on the nature of the proposed mark and the
circumstances surrounding its use. In re Steelbuilding.com, 75 USPQ2d at 1424 (“the
applicant’s burden of showing acquired distinctiveness increases with the level of
descriptiveness; a more descriptive term requires more evidence of secondary
meaning.”). See also Roux Labs., Inc. v. Clairol Inc., 427 F.2d 823, 166 USPQ 34, 39
(CCPA 1970); In re Hehr Mfg. Co., 279 F.2d 526, 126 USPQ 381, 383 (CCPA 1960).
Serial Nos. 86525425 and 86525431
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Applicant initially filed a verified declaration of Charles Smith, its Vice President
of Entertainment, averring not that the mark had become distinctive, but that
“substantial good will has been built up in the mark” as a result of exclusive and
continuous use in commerce since March 10, 1995 (para. 3) (the “First Smith
Declaration”).56 We agree with the Examining Attorney that Applicant’s bare
statements of use of the mark since 1995 are otherwise insufficient in these
consolidated cases where the mark is highly descriptive (if not generic), to
demonstrate that Applicant’s mark has acquired distinctiveness. See, e.g., 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 more extensive declaration of Mr. Smith (the
“Second Smith Declaration”).57 Mr. Smith once again claims that “substantial good
will has been built up in the mark” as a result of substantially exclusive and
continuous use in commerce since March 10, 1995 (para. 3). Mr. Smith also attests to
the nature of Applicant’s venue (paras. 4-5); that Applicant has spent more than $12
million on sales and marketing of its venue (para. 6) and generated more than $104

56 Exhibit J to November 23, 2015 Response to Office Action at TSDR 45.
57 June 15, 2016 Response to Office Action at TSDR 11-14. Although Applicant submitted the
Second Smith Declarations in the incorrect files (i.e., the declaration covering the Class 41
services was filed in the Class 43 application, and vice-versa), we have nonetheless considered
the revised declarations and exhibits thereto for the correct applications, as the declarations
and exhibits are otherwise identical.
Serial Nos. 86525425 and 86525431
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million in gross revenue between 2009 and June 2016 (para. 7); that Applicant’s
website receives approximately 31,700 visitors per month (para. 8); that Applicant’s
Facebook page has received 99,154 “likes” and 152,118 “visits” (para. 9); that
Applicant’s Twitter account has 24,900 followers and 1,903 “likes” (para. 10); that
Applicant has received widespread unsolicited recognition of its mark as indicated by
at least 123 consumer reviews on a Yelp review website under the heading “THE
JOINT AT HARD ROCK” (para. 11); that a travel review page at TripAdvisor
displays at least 127 reviews under the heading “The Joint at Hard Rock” (para. 12);
and that a video website at YouTube displays at least 30,400 video results for a search
of “‘the joint’ hard rock” (para. 13). Applicant attached various exhibits to the Second
Smith Declaration in support of its statements.
Having carefully reviewed the totality of the evidence of record, we find that
Applicant has failed to establish acquired distinctiveness of its proposed mark within
the meaning of Section 2(f). Although Applicant has used its mark since 1995, the
mark is highly descriptive (if not generic) for the services. While Applicant expended
approximately $12 million on sales and marketing between 2009 and 2016 and
generated more than $107 million in gross revenue for that same time, Applicant
provided no context for how these figures compare to the volume of sales and revenue
by other nightclubs and restaurants. We similarly cannot ascertain the reach of
Applicant’s advertising. But even if those figures prove to be substantial, it is not in
itself necessarily enough to prove secondary meaning. In re Boston Beer Co. L.P., 198
F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) (claim based on annual sales of
Serial Nos. 86525425 and 86525431
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approximately 85 million dollars, and annual advertising expenditures in excess of
ten million dollars, not sufficient to establish acquired distinctiveness in view of
highly descriptive nature of mark). Moreover, Applicant’s services appear limited to
a single venue within the Hard Rock Hotel and Casino in Las Vegas, Nevada,58 and
there is no information regarding the market share occupied by Applicant in the
United States.
Similarly, there is no context for the short interview with Mr. Smith, appended as
Exhibit B to his second declaration.59 We cannot ascertain how many people may
have read the interview online (the exhibit was printed from the web), or if the
interview was printed in a published magazine in addition to appearing online, and,
if so, the circulation and geographical reach thereof. Judging from the website’s
domain name (“lasvegasmagazine.com”) it appears to be a city-based magazine as
opposed to a national publication.
The IMDb web page reveals the title of a 28-minute live performance concert film
to be “Aerosmith: Rockin’ the Joint - Live at the Hard Rock Hotel, Las Vegas (2005).”60
We note that the word “the” is not capitalized on the IMDb page, and Applicant has
provided no information regarding public exposure to the video or as to how the mark
may be used within the video. In addition, two other marks appear in the film title

58 Exh. A (Wikipedia page) to Second Smith Declaration, TSDR 16-17.
59 Exh. B (“Vice president of entertainment is all about the music - Las Vegas Magazine”) to
Second Smith Declaration, TSDR 19-23.
60 Exh. C to Second Smith Declaration, TSDR 24-27.
Serial Nos. 86525425 and 86525431
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(i.e., Aerosmith and Hard Rock Hotel) so it is difficult to know which mark attracts
public attention.
Applicant’s website receives 31,700 visits per month.61 Applicant has not provided
any context for this figure, so we cannot measure it against how many website visits
its competitors may have received. Also, because Applicant provided only a number
of website visits “per month,” we cannot determine whether such a number of visits
is an average or part of an increasing trend. Further, Applicant does not indicate
whether the number of visits were from different individuals or multiple visits from
the same individuals. In addition, the website prominently displays the mark Hard
Rock Hotel & Casino, and judging from the domain name (“hardrockhotel.com”) it
appears to be one of many pages within the Hard Rock Hotel and Casino’s website;
therefore, it is unclear which mark on the page attracts public attention.
While Applicant has an active social media presence on Facebook and Twitter,
and there are active Yelp and TripAdvisor review pages for Applicant’s venue, the
exhibits have limited probative value in the absence of information regarding public
exposure.62 Applicant has not provided any context for the number of “likes,” “visits,”
followers, or reviews, so we cannot measure them against other brands. We are
simply without enough information to determine the degree to which Applicant’s
Facebook “likes” and “visits,” Twitter “likes” and followers, and Yelp and TripAdvisor
reviews are significant.

61 Second Smith Declaration, para. 8.
62 Exh. E (Facebook page) to Second Smith Declaration, TSDR 32-41; Exh. F (Twitter page)
TSDR 42-52; Exh. G (Yelp page) TSDR 53-92; and Exh. H (TripAdvisor page) TSDR 93-98.
Serial Nos. 86525425 and 86525431
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Similarly, the results from a YouTube search for “‘the joint’ hard rock” (including
screen shots of apparent YouTube videos presumably filmed at Applicant’s venue)
have limited utility to show acquired distinctiveness given the nature of the evidence
and images, which lack sufficient context.63 Cf., In re Thomas, 79 USPQ2d 1021, 1026
(TTAB 2006) (Board rejected an applicant’s attempt to show weakness of a term in a
mark through citation to a large number of GOOGLE “hits” because the results
lacked sufficient context). See also, In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828, 1833 (Fed. Cir. 2007) (truncated results from search engines are
entitled to little weight). Without more than the screen shots, titles, dates, number of
views, and short summaries we cannot begin to ascertain what kind of commercial
impression the videos made. There is no indication that THE JOINT appears while
viewing the videos, and no way of knowing how the viewers came upon or searched
for the videos (e.g., by searching for a band or artist, by searching the Hard Rock
hotel/casino name, or by recommendation from YouTube after watching other
unrelated videos).
For the reasons stated, Applicant has not shown that the term THE JOINT will
be perceived as identifying the source of Applicant’s services. Accordingly, we find
that it has not acquired distinctiveness.
IV. Decision

The refusals to register Applicant’s proposed mark THE JOINT on the ground
that it is generic are AFFIRMED as to both applications. The refusals to register the

63 Exh. I to Second Smith Declaration, TSDR 99-105.
Serial Nos. 86525425 and 86525431
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mark on the ground that it is merely descriptive under Section 2(e)(1) and has not
acquired distinctiveness under Section 2(f) are AFFIRMED as to both applications.