Louisiana Fish Fry Products, Ltd.

Trademark Trial and Appeal Board

May 24, 2013

No. 77816809 (T.T.A.B. May. 24, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
May 24, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Louisiana Fish Fry Products, Ltd.
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Serial No. 77816809
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R. Bennett Ford, Jr. of Roy, Kiesel, Ford, Doody & Thurman for Louisiana Fish Fry
Products, Ltd.

Amy L. Kertgate, Trademark Examining Attorney, Law Office 113 (Odette Bonnet,
Managing Attorney).
_____

Before Kuhlke, Bergsman and Lykos, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Louisiana Fish Fry Products, Ltd. (“applicant”) filed a use-based application
to register on the Principal Register the mark LOUISIANA FISH FRY PRODUCTS
BRING THE TASTE OF LOUISIANA HOME and design, shown below, for goods
ultimately identified as “marinade; sauce mixes, namely, barbecue shrimp sauce
mix; remoulade dressing; cocktail sauce, seafood sauce; tartar sauce; gumbo filé;
and cayenne pepper,” in Class 30.

Serial No. 77816809
2

Applicant disclaimed the exclusive right to use “EST. 1982” and claimed that
LOUISIANA FISH FRY PRODUCTS and the pictorial representation of the State of
Louisiana had acquired distinctiveness in accordance with Section 2(f) of the
Trademark Act of 1946. Applicant also claimed ownership of the following
registrations:
1. Registration No. 2794015 on the Principal Register for the same mark
as in the application at issue for “cajun blackened seasoning,” in Class 30.1
Applicant disclaimed the exclusive right to use “Fish Fry Products” and “Est. 1982”
and with a claim of acquired distinctiveness pursuant to Section 2(f) in part as to
the word “LOUISIANA” and the map of the State of Louisiana.
2. Registration No. 2827057 on the Principal Register for the same mark
as in the application at issue without the fleur de lis for “seasonings, namely,
crawfish, crab and shrimp boil; mixes, namely, dirty rice mix consisting primarily of
rice and also containing vegetables; etouffee mix consisting primarily of flour,
seasonings, and also containing vegetables; gravy mix; gumbo mix consisting
primarily of flour seasonings and also containing onions; jambalaya mix consisting

1 Issued December 16, 2003; renewed.
Serial No. 77816809
3

primarily of packaged rice and spices; red beans and rice mix consisting primarily of
rice, beans, seasoning, and also containing vegetables; shrimp creole mix consisting
primarily of flour and seasonings and also containing vegetables; and cobbler mix
consisting primarily of sugar, flour, leavening and spices,” in Class 30.2 Applicant
disclaimed the exclusive right to use “Products” and “Est. 1982” and claimed
acquired distinctiveness in part as to the word “LOUISIANA” and the map of the
state of Louisiana. 3. Registration No. 2827571 on the Principal Register for the
same mark as in the application at issue without the fleur de lis for “hush puppy
mix, seasoned batter mixes, namely, fish fry, chicken fry, and shrimp fry, baking
seasonings for chicken and fish,” in Class 30.3 Applicant disclaimed the exclusive
right to use “Fish Fry Products” and “Est. 1982” and claimed acquired
distinctiveness in part as to the word”LOUISIANA” and the map of the state of
Louisiana.
During the prosecution of its application, applicant also claimed ownership of
the following registrations:
1. Registration No. 2801892 for the mark LOUISIANA FISH FRY
PRODUCTS, in standard character form, for inter alia, seasonings and sauces, in
Class 30.4 Applicant claimed that “Louisiana” had acquired distinctiveness and
disclaimed the exclusive right to use “Products.”

2 Issued March 30, 2004; Sections 8 and 15 affidavits accepted and acknowledged.
3 Issued March 30, 2004; Sections 8 and 15 affidavits accepted and acknowledged.
4 Issued January 6, 2004; renewed.
Serial No. 77816809
4

2. Registration No. 2827058 for the mark LOUISIANA FISH FRY
PRODUCTS and design, shown below, for “cocktail sauce, tartar sauce, seafood
sauce and remoulade dressing,” in Class 30.5 Applicant claimed that “Louisiana”
had acquired distinctiveness and disclaimed the exclusive right to use “Products.”

The Trademark Examining Attorney accepted the Section 2(f) claim of
acquired distinctiveness as to LOUISIANNA and the map of Louisiana but refused
registration on the grounds that the term “Fish Fry Products” engenders a separate
commercial impression and must be disclaimed under Sections 2(e)(1) and 6 of the
Trademark Act because the term “Fish Fry Products” as used by applicant is either
generic or because it is merely descriptive and it has not acquired distinctiveness.
We consider the disclaimer requirement first.
A. Whether the term “Fish Fry Products” should be disclaimed under Sections
2(e)(1) and 6 of the Trademark Act?
According to the Trademark Examining Attorney, “[a]pplicant has been
required to enter a disclaimer of the term ‘FISH FRY PRODUCTS’ apart from the
mark as shown because this term when used in connection with the goods in the

5 Issued March 30, 2004; Sections 8 and 15 affidavits accepted and acknowledged.
Serial No. 77816809
5

application, is generic and therefore unregistrable under Trademark Act Section
2(e)(1), 15 U.S.C. §1052(e)(1).”6
Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a) reads, in relevant
part, as follows:
The Director may require the applicant to disclaim an
unregistrable component of a mark otherwise registrable.
A disclaimer is a statement that the applicant or registrant does not claim
the exclusive right to use a specified element or elements of the mark in a
trademark application or registration. The significance of a disclaimer is conveyed
in the following statement:
As used in trademark registrations, a disclaimer of a
component of a composite mark amounts merely to a
statement that, in so far as that particular registration is
concerned, no rights are being asserted in the disclaimed
component standing alone, but rights are asserted in the
composite; and the particular registration represents only
such rights as flow from the use of the composite mark.
Sprague Electric Co. v. Erie Resistor Corp., 101 USPQ 486, 486-87 (Comm’r Pats.
1954).
The Trademark Office may require a disclaimer as a condition of registration
if the term in the mark is generic with respect to at least some of the goods in the
genus, and registration is properly refused in the absence of a disclaimer. In re
Greenliant Systems Ltd., 97 USPQ2d 1078, 1082 (TTAB 2010), citing In re Analog
Devices, Inc., 6 USPQ2d 1808, 1810 (TTAB 1988), aff’d without pub. op., 871 F.2d

6 Trademark Examining Attorney Brief, p. 4 (unnumbered).
Serial No. 77816809
6

1097, 10 USPQ2d 1879 (Fed. Cir. 1989) (registration is properly refused if the
subject matter for registration is generic of any one of the goods for which
registration is sought); and In re Creative Goldsmiths of Wash., Inc., 229 USPQ 766,
768 (TTAB 1986) (“[I]t is within the discretion of an Examining Attorney to require
the disclaimer of an unregistrable component (such as a common descriptive, or
generic, name) of a composite mark sought to be registered on the Principal
Register under the provisions of Section 2(f).”).
Failure to comply with a requirement for a disclaimer is a basis on which to
refuse registration. See In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1399-1400
(Fed. Cir. 2006); In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed.
Cir. 2005); In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir.
1987); In re Richardson Ink Co., 511 F.2d 559, 185 USPQ 46, 47 (C.C.P.A. 1975); In
re Nat’l Presto Indus., Inc., 197 USPQ 188, 190 (TTAB 1977); In re Pendleton Tool
Indus., Inc., 157 USPQ 114, 115 (TTAB 1968).
When a proposed mark is refused registration as generic, or a disclaimer is
required on that basis, the examining attorney has the burden of proving
genericness by "clear evidence" thereof. See In re Hotels.com, 573 F.3d 1300, 91
USPQ2d 1532, 1533 (Fed. Cir. 2009); In re Merrill Lynch, Pierce, Fenner & Smith,
Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987); and In re Gould Paper
Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed. Cir. 1987).
The issue is to determine whether the record shows that members of the
relevant public primarily use or understand the term sought to be registered to
Serial No. 77816809
7

refer to the category or class of goods in question. H. Marvin Ginn Corp. v.
International Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir.
1986); In re Women's Publishing Co. Inc., 23 USPQ2d 1876, 1877 (TTAB 1992).
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?” Ginn,
228 USPQ at 530. Evidence of the public’s understanding of a term may be
obtained from any competent source, including testimony, surveys, dictionaries,
trade journals, newspapers and other publications. See Merrill Lynch, 4 USPQ2d at
1143; In re Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961, 963
(Fed. Cir. 1985).
We begin by finding that the genus of the goods at issue in this case is sauces,
marinades and spices. Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d
1551, 1552 (Fed. Cir. 1991) (“[A] proper genericness inquiry focuses on the
description of [goods or] services set forth in the [application or] certificate of
registration.”).
Turning to the second inquiry, how the public understands the term, the
relevant public consists of ordinary consumers who eat fried fish.
As noted above, the evidentiary burden of establishing that a term is generic
rests with the USPTO and the showing must be based on clear evidence. Merrill
Lynch, 4 USPQ2d at 1143.
Serial No. 77816809
8

Based on the record described below, we find that there is clear evidence to support
a finding that the relevant public, when it considers FISH FRY PRODUCTS in
conjunction with sauces, marinades and spices, readily understands the term to
identify a type of sauce, marinade or spice used for fish fries.
A “fish fry” is defined as follows:
1. A cookout or other meal at which fried fish is the main
course.
2. A piece of fried fish.7
Applicant used the term “fish fry” in its Registration No. 2827571 to identify
“seasoned batter mix mixes, namely, fish fry, chicken fry and shrimp fry.”
The word “product” is defined, inter alia, as follows:
(1): something produced; especially: COMMODITY (2):
something … that is marketed or sold as a commodity.8
Thus, the meaning of the term “fish fry products” is a commodity sold or used with
fried fish. The combination of the term “fish fry” with the word “products” does not
have an incongruous meaning or form a unique commercial as applied to applicant’s
goods such that the term “Fish Fry Products” loses its ordinary meaning.
In her August 8, 2012 Office action, the Trademark Examining Attorney
submitted the evidence set forth below to prove that “fish fry” is commonly used to

7 Yahoo! Education (yahoo.com). See also MSN Encarta Dictionary (encarta.msn.com) (“a
meal with deep-fried fish as the main course”); Merriam-Webster Online (merriam-
webster.com) (“a picnic or supper featuring fried fish”; “fried fish”) (March 22, 2010 Office
action). (December 14, 2009 Office action).
8 Merriam-Webster Online (merriam-webster.com). See also MSN Encarta Dictionary
(encarta.msn.com) (“company’s goods or services: the goods or services produced by a
company”). (March 22, 2010 Office action).
Serial No. 77816809
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identify fried fish and dinners featuring fried fish. The evidence also highlights the
sauces, marinades and spices associated with fish fries.
1. Eleven articles from the LexisNexis database using the term “fish fry”
to identify fried fish meals. The following articles are representative:
a. Milwaukee Journal Sentinel (March 3, 2000)
Where to cast your line for a different bit of fish
* * *
So generally speaking, our search for fish fries with a
twist found that your fried fish is safe in Milwaukee –
thought it sometimes gets updated and redefined with
spices and marinades.
b. Chicago Sun Times (April 23, 2010)
Solid entertainment; Little Bucharest Bistro puts a new
twist on Old World fare
* * *
Revolution Brewing Taps Into Beer Frenzy
* * *
The frites with the fish were quite good, too, but the
roasted red pepper remoulade and the honey jalapeno
slaw were even better, elevating this rather simple fish
fry to another level of deliciousness.
c. Star Tribune (Minneapolis) (March 11, 2012)
Deals of the week
Food
Famous Dave’s (16 participating Twin Cities locations …)
has entered the all-you-can-eat fish fry business on
Fridays, now through April 8. The menu: cod fried in
Serial No. 77816809
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cornmeal-lager beer, a spicy pickle tartar sauce,
cornbread muffins and a choice of two sides, for $14.99.
2. Evidence from Internet websites.
a. On July 6, 2011, the Al Dente Blog (aldenteblog.com) posted
“The Utica Edition: Fish Fry, Not Just For Friday Nights.”
If you grew up in Utica, it wasn’t until you left that you
realized many of the foods you were accustomed to
couldn’t be found in other parts of the country. Tomato pie
is just one example. Friday night fish fry is another.
Now, fish fry is by no means unique to Utica. You can
find it all around Upstate New York, if not much of the
Northeast. …
In Utica [sic] fish fry includes fried haddock, french fries
(or sometimes a baked potato), cole slaw and tartar sauce.
The readers posted comments regarding their experiences with “fish fries.”
b. Ray’s Butcher Shoppe (raysbutchershoppe.com) advertised a
“Friday Fish Fry Carryout.” “All buckets and dinners include tartar or seafood
sauce.”
c. An article about “fish fry” in Albany posted August 23, 2011 on
the All Over Albany magazine website (alloveralbany.com) entitled “Fish Fry at
Gene’s.”
As a primer to those unfamiliar with the form, there are
three fish fry sauces: tartar, cocktail and chili.
3. Recipes using the term “fish fry.”
a. Recipe posted on the Indian food blog (recipes-
indianfood.blogspot.com)
Serial No. 77816809
11

Pan Fried Indian Fish Fry Recipe
Fish fry recipe is a simple and heart healthy recipe made
with marinated fish filets, fried on a non-stick pan over
medium heat. In this fish fry recipe I have used the
Tilapia fish.
The recipe include a recipe for fish marinade
b. Recipe posted on the Sinful Curry website (sinfulcurry.com) for
“Pan Roasted Salmon/Kerala Fish Fry.”9

… This is a staple for most meat eating Malayalees and
we usually have a number of ways of cooking it. But I
find the ‘Kerala fish fry’ to the tastiest and easiest of them
all.
There are five basic ingredients for this fried fish marinade: ginger, garlic, chili,
turmeric and salt.
c. A recipe for Malvani Fish Fry, including a marinade, posted on
Niya’s World website (niyasworld.blogspot.com). One of the three posted comments
was “Yummy fish fry … crisp.”
d. A “Homemade Fried Catfish –Fish Fry Recipe,” including a
marinade, posted on the FindItRecipe.com website (“Perfect for a summer fish-fry.”).
e. A recipe for “Beer Battered Fish Fry With Homemade Tartar
Sauce” posted on the GroupRecipes.com website.
Our friends on the lake had a fish fry a couple of weeks
ago, and the fish was great!. This is his recipe. The
tartar sauce is what was made in my house growing up,

9 See also Pazham Pappadam Payasam website (cookingwithkairalisisters.com) for a
“Kerala style Masala Tilapia fry” (“Fish fry is something that seafood lovers cannot resist”
and “if you like the fish fry a little tangy add about a ½ tsp tamarind paste along with the
marinade.”).
Serial No. 77816809
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every time we had fish, whether it was frozen fish sticks
or sole!
f. Rachael Ray posted a recipe for “Fish Fry with Tartar Sauce” on
her website RachaelRayShow.com.
g. The IHaveTheRecipeForThat.com website posted (July 9, 2011) a
recipe for “Homemade Cocktail Sauce for your Fish Fry.”
This time of year I always see people in the grocery store
buying jars of cocktail sauce. I like to assume that they
have gotten back from an exciting deep sea fishing trip
and are cooking up their fresh catch and having a fish fry.
In her March 22, 2010 Office action, the Trademark Examining Attorney
submitted the evidence listed below to prove that marinades, sauces and spices are
an integral part of fried fish recipes.
a. The Wikipedia.com entry for “Rémoulade” which states that rémoulade
“is now more often used as an accompaniment to seafood dishes, especially pan-fried
breaded fish fillets.” See also entry for “Rémoulade Sauce Recipe” posted on the
Life123.com website (“It has become popular to use rémoulade with fish dishes,
especially sole and other breaded and fried fish.”).
b. A recipe for “Fried Fish Marinated in Garlic, Vinegar, Oregano, and
Cumin” posted on the October 2002 issue of the Bon Appétit magazine
(epicurious.com).
Generally this dish is served in Andalusia as part of a
mixed fish fry, but it’s wonderful on it’s [sic] own. The
marinade makes the fish flavorful and succulent.
c. A “Marinated Fried Fish” recipe posted on the PepperFool.com website.
Serial No. 77816809
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d. The first ten of 184 listings from a search for “fish marinades” in the
Cooks.com website. See also the list of sauce recipes for meat and fish posted on the
Southern Food section of the About.com website.
e. A “Buttermilk Marinated Fried Catfish Recipe” posted on the
Cookingfishmonger.com website.
f. A “Cornmeal Fried Catfish with Rémoulade Recipe” posted on the
Chow.com website. This recipe explains that “Rémoulade is a mayonnaise loaded
with flavor. … Though it is normally served with fried-fish dishes such as our
Cornmeal Fried Catfish, we also like it with boiled shellfish or mixed into a potato
salad.”
g. A recipe for “Oven-Fried Catfish with Rémoulade Sauce” posted on the
July 2007 issue of Gourmet magazine (epicurious.com).
h. An article entitled “How to Make a Dipping Sauce for Fish and
Seafood” posted on the eHow.com website. The author recommends the sauce with
baked, broiled or fried fish.
i. An advertisement for the sale of individual portions of “Cocktail Sauce”
posted on the WebRestaurantStore.com website. It is a “House blend Seafood
Cocktail Sauce” that is promoted for use with “fried shrimp, fried fish, oysters, and
crab cakes.”
j. A recipe for “Cajun Cuisine (Fried Catfish With Cajun Seafood Sauce)”
posed on the Cooks.com website.
Serial No. 77816809
14

k. Emeril Lagasse’s recipe for “Fried Fish Fingers with Tartar Sauce”
posted on the FoodNetwork.com website. The recipe notes that “Pan-Crispy Fish
with Crawfish Sauce” is a similar recipe. See also the “Fried Fish, Tartar Sauce,
French Fries and Hushpuppies” recipe posted on the BigOven.com website; “How to
Make Fried Fish and Tartar Sauce at Home” posted on the eHOw.com website.
m. The fried fish recipes posted on the Whatscookinginamerica.com,
Gameandfishingrecipes.com, CookingLouisiana.com, Channel4.com and the
eHOw.com websites list cayenne pepper as an essential ingredient for the fish
batter.
In her October 25, 2010 Office action, the Trademark Examining Attorney
submitted 23 news articles demonstrating the use of sauces, marinades and spices
in connection with fried fish. The following articles are representative:
a. The Columbus Dispatch (March 4, 2010)
Offshoot falls short of mark for Cincinnati classic
* * *
Several pieces of battered, deep-fried cod (Ted’s fish fry,
$17.50) are enhanced by an excellent tartar sauce with
horseradish overtones.
b. St. Louis Post-Dispatch (April 2, 2004)
Fish Fries Offer a Place For Gab and Grub
Parishioners Bond in Lenten Tradition
* * *
… Her personal but thorough survey of the area’s many
fish purveyors earned her a splash at the St. Louis
Serial No. 77816809
15

Review, the newspaper of the St. Louis Archdiocese,
which in 199 called her the “fish fry aficionado.”
Stretch, 56, grew up in Glasgow Village and prefers the
traditional squared cod portion to the baked filets that
some places serve to accommodate changing tastes. But
she doesn’t want her fried fish to taste greasy. And she
likes homemade cocktail sauce and anything else that the
fish-fry volunteer armies don’t pour from cans.
c. The Boston Globe (March 5, 2008)
Good Food, Drink, Music Are On The Playlist
* * *
The Highland fish fry is a piece of moist, perfectly fried
catfish served with hush puppies and remoulade. There’s
also craveable po’ boy of blackened catfish on baguette,
served with sweet house-made pickles. There’s a bit of
heat to it from the cayenne, but it tastes downright mild
beside a bowl of curried goat stew on jasmine rice …
In its April 28, 2011 response to an Office action, applicant submitted an
excerpt from its website Applicant’s website (louisianafishfry.com) shown below.
The website displays the terms “Louisiana Fish Fry Shopping” and “America’s #1
Selling Fish Fry” and advertises products for fish fries, namely, sauces, marinades
and spices.
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Serial No. 77816809
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There is no dispute that the term “Fish Fry” is a unitary term that means
fried fish. The issue before us, therefore, centers on the effect of the addition of the
word “Products” to the term “Fish Fry.” The word “products” as used in the term
“Fish Fry Products” carries its dictionary definition and is without any source-
identifying capability. See In re Paint Products Co., 8 USPQ2d 1863, 1866 (TTAB
1988) (“[P]urchasers encountering the words ‘PAINT PRODUCTS CO.’ on the goods
for which registration is sought [paints and coatings] would view those words not as
a trademark, but in their ordinary dictionary sense; a company that sells paint
products [and] because it describes the goods of any company selling such products,
the phase should remain available for applicant's competitors”). See also In re
Taylor & Francis [Publishers] Inc., 55 USPQ2d 1213, 1215 (TTAB 2000) (the word
“press” in the mark PSYCHOLOGY PRESS is in the nature of entity designation
which is incapable or serving a source-indicating function). Therefore, FISH FRY
PRODUCTS is the combination of two generic terms, “Fish Fry” and “Products,”
joined to create a compound term. See In re Wm. B. Coleman Co., 93 USPQ2d 2019,
2025 (TTAB 2010); In re Eddie Z’s Blinds and Drapery, Inc., 74 USPQ2d 1037,
1041-42 (TTAB 2005). In this case, the separate terms retain their generic
significance when joined together to form the compound term that has “a meaning
identical to the meaning common usage would ascribe to those words as a
compound.” In re Wm. B. Coleman Co., 93 USPQ2d at 2025, quoting In re Gould
Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111-12 (Fed. Cir. 1987). Accordingly,
Serial No. 77816809
18

consumers will perceive the term in its ordinary dictionary sense as commodities
used for preparing and eating fried fish.
Even if we treat FISH FRY PRODUCTS as a phrase, rather than a compound
term, the record continues to support finding that FISH FRY PRODUCTS is generic
when used in connection with sauces, marinades and spices for fried fish even in the
absence of evidence that applicant’s competitors use the term FISH FRY
PRODUCTS. See In re Nat'l Shooting Sports Found., Inc., 219 USPQ 1018, 1020
(TTAB 1983) (SHOOTING, HUNTING, OUTDOOR TRADE SHOW AND
CONFERENCE held apt descriptive name for conducting and arranging trade
shows in the hunting, shooting, and outdoor sports products field even though
applicant was the only user of the term). The evidence noted above establishes that
FISH FRY PRODUCTS identifies the type of sauces, marinades and spices
applicant is selling (i.e., sauces, marinades and spices used with fried fish).
Applicant argues that its products are not limited to fried fish and, in fact,
some of the products would ordinarily not be used on fried fish.10 However, if a
mark is found generic for one of several products listed in the description of goods,
registration will be refused for that entire class of goods. See In re Quik-Print Copy
Shop, Inc., 616 F.2d 523, 205 USPQ 505, 507 (CCPA 1980) (“Registration will be
denied if a mark is merely descriptive of any of the goods or services for which
registration is sought.”); In re theDotCommunications Network LLC, 101 USPQ2d
1062, 1068 (TTAB 2011).

10 Applicant’s Brief, p. 7. See also Applicant’s Reply Brief, pp. 3-4.
Serial No. 77816809
19

Applicant also argues that although “Fish Fry” may be generic for fried fish
batter that does not make it generic for sauces, marinades or spices.11 However,
applicant’s mark is FISH FRY PRODUCTS, not just “Fish Fry,” and the meaning
and commercial impression engendered by the mark in its entirety are commodities
(i.e., sauces, marinades and spices) used in connection with fried fish.
In view of the foregoing, we find that the relevant public will understand
FISH FRY PRODUCTS to refer to sauces, marinades and spices used in connection
with preparing and eating fried fish. FISH FRY PRODUCTS is, therefore,
incapable of identifying the source of such products because it is a term that
purchasers will understand and will use to refer to as a type of product. As such, it
must be left available for use by other companies that sell sauces, marinades and
spices. Accordingly, the exclusive use of FISH FRY PRODUCTS must be
disclaimed.
B. Whether the term “Fish Fry Products” has acquired distinctiveness?
If, on appeal, it should be found that FISH FRY PRODUCTS is not generic
for any of the identified goods, it may nonetheless be considered at least descriptive
of the goods and, if so, unregistrable in the absence of a showing of acquired
distinctiveness. Accordingly, we now consider in detail applicant’s evidence of
acquired distinctiveness.
In finding above that the designation FISH FRY PRODUCTS is incapable of
being a source identifier for applicant's goods (i.e., sauces, marinades, and spices),

11 Applicant’s Brief, pp. 8-9.
Serial No. 77816809
20

we considered all of the evidence touching on the public perception of this
designation, including the evidence of acquired distinctiveness. In this section of
our opinion, we consider the evidence of acquired distinctiveness only with regard to
whether it would be sufficient to allow registration of applicant’s mark without a
disclaimer, if FISH FRY PRODUCTS ultimately is found merely descriptive but not
generic. Under such circumstances, applicant has the burden to establish a prima
facie case of acquired distinctiveness. See Yamaha International Corp. v. Hoshino
Gakki Co., Ltd., 840 F.2d 1572,6 USPQ2d 1001, 1006 (Fed. Cir. 1988).
The amount and character of evidence required to establish acquired
distinctiveness depends on the facts of each case and particularly on 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 (C.C.P.A. 1970); In re Hehr Mfg. Co., 279 F.2d 526, 528, 126
USPQ 381, 383 (C.C.P.A. 1960); In re Gammon Reel, Inc., 227 USPQ 729, 730
(TTAB 1985). Typically, more evidence is required where a mark is so highly
descriptive, that purchasers seeing the matter in relation to the named goods would
be less likely to believe that it indicates source in any one party. See, e.g., In re
Bongrain Int’l Corp., 894 F.2d 1316, 1318, 13 USPQ2d 1727, 1729 (Fed. Cir. 1990);
In re Seaman & Assocs., Inc., 1 USPQ2d 1657, 1659 (TTAB 1986); In re Packaging
Specialists, Inc., 221 USPQ 917, 919 (TTAB 1984).
Applicant submitted the evidence listed below to prove that FISH FRY
PRODUCTS has acquired distinctiveness.

Serial No. 77816809
21

A. February 2, 2010 response to Office action.
1. Declaration of William Pizzolato, applicant’s President, attesting that
the term FISH FRY PRODUCTS as acquired distinctiveness through applicant’s
substantially exclusive and continuous use of FISH FRY PRODUCTS for at least
five years preceding the date of the declaration. Because of the highly descriptive
nature of the term FISH FRY PRODUCTS, a declaration of applicant’s
substantially exclusive and continuous use of the term for five years will not be
sufficient to establish distinctiveness. See In re Kalmbach Publ’g Co., 14 USPQ2d
1490 (TTAB 1989) (holding applicant’s sole evidence of acquired distinctiveness, a
claim of use since 1975, insufficient to establish that the highly descriptive, if not
generic, designation RADIO CONTROL BUYERS GUIDE had become distinctive of
applicant’s magazines); In re Gray Inc., 3 USPQ2d 1558, 1559 (TTAB 1987) (“[T]o
support registration of PROTECTIVE EQUIPMENT [for burglar and fire alarms
and burglar and fire alarm surveillance services] on the Principal Register a
showing considerably stronger than a prima facie statement of five years’
substantially exclusive use is required.”); cf. In re Synergistics Research Corp., 218
USPQ 165 (TTAB 1983) (holding applicant’s declaration of five years’ use sufficient
to support registrability under §2(f) of BALL DARTS for equipment sold as a unit
for playing a target game, in view of lack of evidence that the term is highly
descriptive (e.g., no dictionary evidence of any meaning of BALL DARTS and no
evidence of use of the term by competitors or the public)).

Serial No. 77816809
22

2. Applicant claimed ownership of the following registrations:
a. Registration No. 2794015 for the same mark as in the
application at issue for “cajun blackened seasoning.” Applicant disclaimed the
exclusive right to use “Fish Fry Products” and “Est. 1982” and claimed that
LOUISIANA and the map of LOUISIANA had acquired distinctiveness.
b. Registration No. 2827057 for the same mark as in the
application at issue without the fleur de lis for “seasonings, namely, crawfish, crab
and shrimp boil; mixes, namely, dirty rice mix consisting primarily of rice and also
containing vegetables; etouffee mix consisting primarily of flour, seasonings, and
also containing vegetables; gravy mix; gumbo mix consisting primarily of flour
seasonings and also containing onions; jambalaya mix consisting primarily of
packaged rice and spices; red beans and rice mix consisting primarily of rice, beans,
seasoning, and also containing vegetables; shrimp creole mix consisting primarily of
flour and seasonings and also containing vegetables; and cobbler mix consisting
primarily of sugar, flour, leavening and spices.” Applicant disclaimed the exclusive
right to use “Products” and “Est. 1982” and claimed that LOUISIANA and the map
of LOUISIANA had acquired distinctiveness.
c. Registration No. 2827571 for the same mark as in the
application at issue without the fleur de lis for “hush puppy mix, seasoned batter
mixes, namely, fish fry, chicken fry, and shrimp fry, baking seasonings for chicken
and fish.” Applicant disclaimed the exclusive right to use “Fish Fry Products” and
Serial No. 77816809
23

“Est. 1982” and claimed that LOUISIANA and the map of LOUISIANA had
acquired distinctiveness.
B. April 28, 2011 response to Office action.
1. Applicant claimed ownership of the following registrations:
a. Registration No. 2801892 for the mark LOUISIANA FISH FRY
PRODUCTS, in typed drawing form, for inter alia, seasonings and sauces.12
Applicant claimed that “Louisiana” had acquired distinctiveness and disclaimed the
exclusive right to use “Products.”
b. Registration No. 2827058 for the mark LOUISIANA FISH FRY
PRODUCTS and design, shown below, for “cocktail sauce, tartar sauce, seafood
sauce and remoulade dressing.” Applicant claimed that “Louisiana” had acquired
distinctiveness and disclaimed the exclusive right to use “Products.”

With respect to the third-party registrations, the examining attorney has the
discretion to determine whether the nature of the mark sought to be registered is
such that a claim of ownership of a prior registration for the same or similar goods
or services is enough to establish acquired distinctiveness. For example, if the mark
sought to be registered is deemed to be highly descriptive of the goods named in the
application, the examining attorney may require additional evidence of acquired

12 Issued January 6, 2004; renewed
Serial No. 77816809
24

distinctiveness. See In re Loew’s Theatres, Inc., 769 F.2d 764, 769, 226 USPQ 865,
869 (Fed. Cir. 1985) (finding claim of ownership of a prior registration insufficient to
establish acquired distinctiveness where registration was refused as primarily
geographically deceptively misdescriptive).
… [E]ach application for registration of a mark for
particular goods must be separately evaluated. Nothing in
the statute provides a right ipso facto to register a mark
for additional goods when items are added to a company's
line or substituted for other goods covered by a
registration. Nor do the PTO rules afford any greater
rights. Under Rule 2.41(b), in appropriate cases, a prior
registration on the Principal Register for the same mark
“may” be accepted as “evidence” of distinctiveness, but the
same rule reserves to the PTO discretion to require
additional proof.
Id.
If the term for which the applicant seeks to prove distinctiveness was
disclaimed in the prior registration, the prior registration may not be accepted as
prima facie evidence of acquired distinctiveness because a disclaimer is a statement
that the applicant or registrant does not claim the exclusive right to use a specified
element of the mark. Kellogg Co. v. Gen. Mills, Inc., 82 USPQ2d 1766, 1771 n.5
(TTAB 2007); In re Candy Bouquet Int’l, Inc., 73 USPQ2d 1883, 1889-90 (TTAB
2004).
In this case, the term FISH FRY PRODUCTS is highly descriptive and, in
two of applicant’s five registrations, it disclaimed the exclusive right to use the term
“Fish Fry Products.” While we have considered applicant’s prior registrations, we
Serial No. 77816809
25

are unpersuaded as to the sufficiency of this proof standing alone in view of the
manner in which the marks are used. See the discussion infra.
C. December 9, 2011 response to Office action.
Declaration of William Pizzolato, applicant’s President, attesting to the
following facts:
1. Applicant has used the mark LOUISIANA FISH FRY PRODUCTS in
connection with various consumer food products for over thirty years;13
2. Applicant has sold in excess of $100,000,000 worth of consumer food
products under the mark LOUISIANA FISH FRY PRODUCTS of which it has sold
over $17,000,000 of product listed in the description of goods of the application at
issue since 2007;14
3. Applicant’s LOUISIANA FISH FRY PRODUCTS in in over 40% of the
grocery stores in the United States;15 and
4. Since 2009, applicant has spent over $2,400,000 on advertising
LOUISIANA FISH FRY PRODUCTS in the United States.16
Applicant contends, inter alia, that it is the entire phrase “Louisiana Fish
Fry Products” that has acquired distinctiveness, not just the phrase “Fish Fry

13 Pizzolato Dec. ¶¶3 and 4.
14 Pizzolato Dec. ¶¶7 and 9.
15 Pizzolato Dec. ¶10.
16 Pizzolato Dec. ¶11.
Serial No. 77816809
26

Products.”17 However, in the mark sought to be registered, depicted below,
“Louisiana” and the term “Fish Fry Products” do not form a unitary whole.

The manner in which the term LOUISIANA FISH FRY PRODUCTS is displayed
highlights the name LOUISIANA because it is much larger than any of the other
words in the mark. In addition, the term “Fish Fry Products” is displayed in an
oval carrier underneath and in much smaller letters than the name LOUISIANA.
Thus, the commercial impression engendered by the mark is LOUISIANA style
brand “Fish Fry Products.” See Kellogg Co. v. General Mills Inc., 82 USPQ2d at
1772:
Considering connotation and commercial impression, the
CINNAMON TOAST portion of the CINNAMON TOAST
CRUNCH mark is a unitary term describing a specific
type of toast and a cereal flavor. The CRUNCH portion of
the mark appears separable from that connotation and
connotes a characteristic or texture of cereal. While
applicant's claim of acquired distinctiveness in the instant
application pertains only to the CINNAMON TOAST
portion of the mark, we find this portion of the mark to be
unitary and sufficiently separable from the mark as a
whole to conclude that the showing of acquired
distinctiveness as to the mark as a whole is sufficient to
support applicant's partial claim of acquired

17 Applicant’s Brief, p. 10.
Serial No. 77816809
27

distinctiveness as to the phrase CINNAMON TOAST for
breakfast cereal.
Cf. In re Magic Muffler Service, Inc., 184 USPQ 125, 126 (TTAB 1974) (Vis-à-vis the
display of MAGIC MUFFLER SERVICE, “since the designation ‘MUFFLER
SERVICE’ is, in essence, a common descriptive designation for applicant’s type of
business, it is concluded that the examiner’s holding that ‘MUFFLER SERVICE’
does not properly form part of applicant’s mark and should not have been included
as part of the drawing is well founded.”). In other words, the name “Louisiana” is
sufficiently distinct from the term “Fish Fry Products” that the two elements are
not inseparable; they do not create a single and distinct commercial impression. See
Dena Corp. v. Belvedere International Inc., 950 F.2d 15555, 21 USPQ2d 1047, 1052
(Fed. Cir. 1991). Because the phrase LOUISIANA FISH FRY PRODUCTS, as
displayed in the mark sought to be registered, does not comprise a unitary term, the
term “Fish Fry Products” must be disclaimed unless it is found that the term has
acquired distinctiveness separate and apart from the name LOUISIANA.
With respect to the term “Fish Fry Products” separate and apart from the
name “Louisiana,” we do not find applicant’s evidence of acquired distinctiveness to
be convincing. First, all the evidence is directed to the term LOUISIANA FISH
FRY PRODUCTS, not FISH FRY PRODUCTS.
Second, applicant’s use for thirty years, while indicative of its commercial
success, is not conclusive or persuasive considering the nature of the subject matter
sought to be registered. In re Ennco Display Systems Inc., 56 USPQ2d 1279, 1286
Serial No. 77816809
28

(TTAB 2000) (applicant’s use of the product designs ranging from seven to
seventeen years is insufficient to bestow acquired distinctiveness). See also In re
Packaging Specialists, Inc., 221 USPQ 917, 920 (TTAB 1984) (evidence submitted
by applicant held insufficient to establish acquired distinctiveness of PACKAGING
SPECIALISTS, INC., for contract packaging services, notwithstanding, inter alia,
continuous and substantially exclusive use for sixteen years, deemed “a substantial
period but not necessarily conclusive or persuasive”).
Likewise, applicant’s sales and advertising while extensive do not shed any
light on whether consumers perceive the term FISH FRY PRODUCTS as a source
indicator since the term is used only in association with the name “Louisiana” that,
as indicated above, engenders the commercial impression of LOUISIANA brand
“Fish Fry Products.”
Finally, the record is lacking in any media recognition regarding applicant’s
products and how the term FISH FRY PRODUCTS points uniquely and exclusively
to applicant.
To put the matter simply, the evidence is not sufficient to establish that
FISH FRY PRODUCTS has acquired distinctiveness.
Decision: The requirement that applicant disclaim the term FISH FRY
PRODUCTS is affirmed and registration to applicant is refused. However, in the
event that applicant submits the required disclaimer within thirty (30) days of the
Serial No. 77816809
29

mailing date of this decision, the refusal to register will be set aside and the
application will proceed to publication.18 See Trademark Rule 2.142(g).

18 A proper disclaimer reads as follows: "No claim is made to the exclusive right to use FISH
FRY PRODUCTS apart from the mark as shown."