Instant Comma, Inc.

Trademark Trial and Appeal Board

Jan 24, 2008

No. 78170402 (T.T.A.B. Jan. 24, 2008)

Mailed: January 24, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Instant Comma, Inc.
________

Serial No. 78170402
_______

Katherine Keating of Holme, Roberts & Owen LLP for Instant
Comma, Inc.

Dominic J. Ferraiuolo, Trademark Examining Attorney, Law
Office 102 (Karen Strzyz, Managing Attorney).
_______

Before Zervas, Walsh and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Instant Comma, Inc. has applied to register the mark
CHOW in typed or standard character form on the Principal
Register for the following goods and services:
“printed matter and printed publications, namely periodical
magazines, newsletters, catalogues and books in the fields
of food, wine, dining, cooking, gastronomy, lifestyle and
travel” in International Class 16; and
“online publication of magazines, newsletters, catalogues
and books in the fields of food, wine, dining, cooking,
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 78170402
2
gastronomy, lifestyle and travel” in International Class
41.1
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act on the ground
that applicant’s mark is merely descriptive of a feature or
quality of applicant’s goods and services.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney have filed briefs on
the issue under appeal, and applicant filed a reply brief.
Applicant contends that its mark is just suggestive
and does not immediately convey to consumers the nature of
its goods or services. Applicant has relied upon
dictionary definitions of the word “chow” in support of its
contention. According to such definitions, “chow” may be
defined as: (1) “breed of thick-coated medium-sized dogs
with fluffy curled tails and distinctive blue-black
tongues; believed to have originated in north China;” (2)
“informal terms for a meal;” (3) “the imperial dynasty of
China from 1122 to 221 BC; notable for the rise of
Confucianism and Taoism;” and (4) “a surname (common: 1 in
25000 families; popularity rank in the U.S.: #2925.)”

1 Application Serial No. 78170402 was filed on October 2, 2002,
based on applicant’s assertion of a bona fide intent to use the
mark in commerce in connection with the goods and services.

Ser No. 78170402
3
Lycos Zone RhymeZone, (Lycos, Inc. 2003). With its appeal
brief, applicant submits an additional definition of “chow”
as “a homophone of ‘ciao,’ used conventionally as an
utterance at meeting or parting.” Webster’s Ninth New
Collegiate Dictionary, (1991).2 In addition, applicant has
made of record a list of the search results from its search
of the term “chow” on the Yahoo Internet search engine.
Excerpts from this search summary follow:
Purina Cat Chow
Get all the latest information on nutrition for
your cat or make a homepage for your cat.
www.catchow.com

Purina Puppy Chow
Includes information about choosing a puppy,
adoption listings, articles about raising and
training puppies, product selection, and more.
www.puppychow.com

Purina Dog Chow
Get information on nutrition for your best friend
and even create a homepage for your dog.
www.dogchow.com

Chow Down Down Under
Australian recipes for Aussies abroad and at
home, good home cooked Aussie tucker.
Members.tripod.com

Chowbaby.com
Includes restaurant, coffee shop, and brew pub
finder. Also features recipes, food and drink
terminology, message boards, and more.

2 We hereby take judicial notice of this definition. The Board
may take judicial notice of dictionary definitions. See
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594, 596 (TTAB 1982); aff’d, 703 F.2d 1372, 217 USPQ 505
(Fed. Cir. 1983).

Ser No. 78170402
4
www.chowbaby.com

Chowhound.com: For those who love to eat!
Choose a chow location from our map. Click to
launch Hot Posts and view all the latest message
board postings at a glance! Pass the chow!
www.chowhound.com

Applicant further has made of record a number of third-
party registrations for marks that consist in whole or in
part of the term “chow” for food related goods and
services. See, for example: Registration No. 1115751 for
CHOW CONE (CONE disclaimed) for “bakery product-namely, an
unfilled food cone;” Registration No. 2888897 for CHOW DOWN
for “providing cooking instruction, recipes and dieting
information via a global computer network;” Registration
No. 1028543 for CHOW for “dairy feed;” Registration No.
2357591 for CHOWBABY.COM and design for “dissemination of
advertising for the restaurants of others via an on-line
electronic communications network;” Registration No.
2493279 for CHOW-NOW! for “restaurant services;”
Registration No. 2540763 for PEOPLE CHOW for “nutritional
food supplements;” and Registration No. 2823072 for THAI
CHOW for “restaurant services.” In addition, applicant has
made of record a printed copy from the United States Patent
and Trademark Office’s (USPTO’s) Trademark Electronic
Search System (TESS) of its application Serial No. 78446865
Ser No. 78170402
5
for the mark CHOW FOOD. DRINK. FUN. for goods in Class 16
that are identical to those in the subject application.3
The examining attorney maintains that the mark merely
describes a feature or quality of the goods and services.
In support of the refusal, the examining attorney has made
of record additional dictionary definitions of “chow.”
According to these definitions, “chow” may be defined as
“noun 1 informal, chiefly N. Amer. food; 2 (also chow chow) a
Chinese breed of dog with a tail curled over its back, a
bluish-black tongue, and a thick coat; verb (chow down) N.
Amer. informal eat.” AskOxford.com (Oxford Online 2006).
“Chow” further may be defined as “Slang Food; victuals.”
American Heritage Dictionary of the English Language, 4th
Ed. (2000). The examining attorney also made of record
copies of third-party registrations for marks that consist
in part of the disclaimed term “CHOW” for food related
goods and services. See, for example, Registration No.
1763424 for CHOW WAGON (CHOW disclaimed) for “restaurant
services;” Registration No. 2553897 for DAILY CHOW (CHOW
disclaimed) for “restaurant and bar services;” Registration
No. 3086559 for TEIN LI CHOW and design (CHOW disclaimed;
mark translates into English as “give me chow”) for “kosher

3 Such application subsequently issued as Registration No. 321136
with a disclaimer of “FOOD DRINK” apart from the mark as shown.
Ser No. 78170402
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Chinese restaurant services;” and KID CHOW and design (CHOW
disclaimed) for “healthy prepared lunches consisting
primarily of meat, fish or poultry, and fruits and
vegetables, delivered to schools and camps.”
It is well settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality,
characteristic or feature thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the
properties or functions of the goods and/or services in
order for it to be considered to be merely descriptive
thereof; rather, it is sufficient if the term describes a
significant attribute or feature about them. Moreover,
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, "[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test." In re American Greetings
Ser No. 78170402
7
Corp., 226 USPQ 365 (TTAB 1985).
In this case, we find that the examining attorney’s
evidence has established that, when considered in
connection with the identified goods and services, “chow”
would be perceived as slang or an informal term for food,
rather than a surname, breed of dog, or imperial dynasty of
China. Thus, the fact that “chow” may have other meanings
in other contexts is not controlling on our determination
herein. See In re Bright-Crest, Ltd., supra.
However, we also agree with applicant that simply
because one meaning of “chow” is “food,” it does not
necessarily follow that the mark CHOW merely describes a
feature or characteristic of applicant’s goods and
services. We hereby take judicial notice of the following
definitions of chow:4 “1. n. food - What time is chow
served around here? 2. tv. to eat (something). (see also
chow down) - I've been chowing canned tuna and stale bagels
to save money. 3. Go to ciao.” American Slang Dictionary
(McGraw-Hill 2006); and “Slang for food. An individual who
really enjoys eating is known as a chow hound. When a
person says that it is time to chow down, he means that it
is time to eat; dinner is served.” Dictionary of the

4 See University of Notre Dame du Lac v. J.C. Gourmet Food
Imports Co., supra.
Ser No. 78170402
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Modern United States Military (1996). The above
definitions and evidence of record indicate that “chow” is
often used to describe institutional, including military,
food as well as food for pets and other animals. Such
meanings of “chow” are incongruous, possibly facetious,
when applied to applicant’s printed and online publications
in the fields of food, wine, dining, cooking, gastronomy,
lifestyle and travel. We note in that regard that the
examining attorney has not submitted any evidence that the
term “chow” is used to describe food in the context of a
publication which, among other things, discusses dining,
wine and gastronomy. In other words, given the meaning of
“chow,” which includes significance in the fields of
institutional and pet food, a prospective consumer viewing
the mark CHOW will perceive the term as incongruous in
relation to applicant’s printed or electronic publications
on the subjects of food, wine, dining, cooking, and related
topics. Compare, for example, In re Colonial Stores, Inc.,
394 F.2d 549, 157 USPQ382 (CCPA 1968); and In re Tennis in
the Round, Inc., 199 USPQ 496 (TTAB 1978).
We further find that applicant’s mark is likely to be
understood as a double entendre in connection with the
identified goods and services. In addition to the above-
noted meaning in relation to food, two of the above
Ser No. 78170402
9
dictionary definitions as well as the Internet reference to
the website Chowbaby.com suggests that “chow” is likely to
be perceived as indicating a homophone or alternative
spelling of the word “ciao.” Thus, prospective consumers
of applicant’s goods and services are likely to view CHOW
as the greeting “ciao” as well as a slang term for food.
In this context, the mark is, at most, suggestive of the
travel content of the identified goods and services. A
double entendre is “an ambiguity of meaning arising from
language that lends itself to more than one
interpretation.” See In re The Place Inc., 76 USPQ2d 1467
(TTAB 2005). As in The Place, supra, both meanings of the
mark in the case before us are readily apparent from the
mark itself without reference to other indicia. See also
In re Grand Metropolitan Foodservice, Inc., 30 USPQ2d 1974
(TTAB 1994). We do not find that the double entendre
extends to other meanings of the term “chow,” as those
terms are not relevant in the context of the identified
goods and services.
The third-party registrations submitted by the
applicant and examining attorney are of little help in
determining the registrability of the mark at issue in this
case. While such third-party registrations as well as
applicant’s subsequently registered application for the
Ser No. 78170402
10
mark CHOW FOOD. DRINK. FUN. demonstrate that the term
“chow” is sometimes, but not always, subject to a
disclaimer requirement in the context of various food-
related marks, we do not find these registrations
persuasive on the issue of whether CHOW merely describes
applicant’s goods and services. Further, and as often
noted by the Board, each case must be decided on its own
set of facts, and we are not privy to the facts involved
with these registrations. See In re Nett Designs Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even if
prior registrations had some characteristics similar to
[applicant’s] application, the PTO’s allowance of such
prior registrations does not bind the Board or this
court.”] See also In re Best Software Inc., 58 USPQ2d 1314
(TTAB 2001).
In conclusion, the mark CHOW is both incongruous and a
double entendre when considered in connection with the
recited goods and services, and neither of the likely
meanings, discussed supra, of the mark CHOW is merely
descriptive in connection therewith. Thus, on this record
the examining attorney has not established that the mark is
merely descriptive in connection with the identified goods
and services. We further note that the record in this case
does not support a finding that permitting registration of
Ser No. 78170402
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CHOW for the recited goods and services would deprive
applicant’s competitors of a necessary term to describe
their own goods or services. See, for example, In re
Shutts, 217 USPQ2d 363, 365 (TTAB 1983).
Finally, if doubt exists as to whether a term is
merely descriptive, it is the practice of this Board to
resolve doubts in favor of the applicant and pass the
application to publication. See In re Gourmet Bakers Inc.,
173 USPQ 565 (TTAB 1972). In this way, anyone who believes
that the term is, in fact, descriptive, may oppose and
present evidence on this issue to the Board.
Decision: The examining attorney’s refusal of
registration is reversed. Accordingly, the involved
application will be forwarded for registration in due
course.