Luby's Fuddruckers Restaurants, LLC

Trademark Trial and Appeal Board

Dec 22, 2011

No. 77878602 (T.T.A.B. Dec. 22, 2011)

Mailed:
December 22, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Luby’s Fuddruckers Restaurants, LLC
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Serial No. 77878602
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Pamela B. Huff of Cox Smith Matthew Incorporated for Luby’s
Fuddruckers Restaurants, LLC.

Ronald McMorrow, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______

Before Rogers, Bergsman and Shaw,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Magic Brands, LLC (“applicant”) filed a use based
application to register the mark BETTER BUNS. BETTER
BURGER., in standard character form, for “restaurant
services.”1 Applicant disclaimed the exclusive right to use
the term “Better Burger.”

1 During the prosecution of the application Magic Brands, LLC
assigned its entire right, interest and goodwill in the mark and
to the application to Luby’s Fuddruckers Restaurants, LLC. The
assignment was recorded on August 13, 2010, at reel 4260, frame
0567.
THIS OPINION
IS NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77878602
2
The trademark examining attorney refused registration
under Section 2(e)(1) of the Trademark Act of 1946, 15
U.S.C. §1052(e)(1), on the ground that applicant’s mark,
proposed for use in connection with applicant’s restaurant
services, is merely descriptive. The examining attorney
maintains that applicant’s mark “very clearly and directly
attributes superior quality to two significant features of
its services, BUNS and BURGERS.”2
Applicant argues that its mark is suggestive of the
services because consumers may believe that applicant’s
mark is associated with numerous goods and services in the
context of restaurant-related services and, therefore, no
immediate connection would be formed between the mark and
the services, or, in the alternative, consumers might
associate the word “Buns” with scantily clad women featured
in restaurants such as HOOTERS, TILTED KILT and TWIN PEAKS.
Moreover, applicant argues its mark is not descriptive
because it is “catchy, clever, alliterative and has a
unique aural cadence” which makes the mark more than
descriptive. Furthermore, because there are no similar
marks registered or in use, competitors do not have a need
to use applicant’s mark. Finally, applicant asserts that

2 Examining Attorney’s Brief, unnumbered page 2.
Serial No. 77878602
3
its mark is not laudatory because its use of the word
“Better” identifies a vague standard as opposed to a
definite grade or standard. Applicant concludes by stating
that any doubts about mere descriptiveness must be resolved
in favor of publication of the mark.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1), if it
forthwith conveys an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use
of the goods or services. In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); and In
re Abcor Development, 588 F.2d 811, 200 USPQ 215, 217-18
(CCPA 1978). A term need not immediately convey an idea of
each and every specific feature of the applicant’s goods or
services in order to be considered merely descriptive;
rather, it is sufficient that the term describes one
significant attribute, function or property of the goods or
services. In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB
1982); and In re MBAssociates, 180 USPQ 338, 339 (TTAB
1973). Whether a term is merely descriptive is determined
not in the abstract, but in relation to the goods or
services for which registration is sought, the context in
which it is being used on or in connection with the goods
or services, and the possible significance that the term
Serial No. 77878602
4
would have to the average purchaser of the goods or
services because of the manner of its use. In re Bright-
Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled
that “[t]he question is not whether someone presented with
only the mark could guess what the goods or services are.
Rather, the question is whether someone who knows what the
goods or services are will understand the mark to convey
information about them.” In re Tower Tech Inc., 64 USPQ2d
1314, 1316-17 (TTAB 2002). The “average” or “ordinary”
consumer for a particular applicant’s goods or services
defines the class or classes of actual or prospective
customers for such goods or services. In re Omaha National
Corporation, 819 F.2d 1117, 2 USPQ2d 1859, 1861 (Fed. Cir.
1987). In this case, the general restaurant going public
comprises the class of actual or prospective customers for
applicant’s services.
According to the MSN ENCARTA DICTIONARY definition
(encarta.msn.com) attached to the March 1, 2010 Office
action, the “core meaning” of the word “better” is defined
as “indicating that somebody, something, or an action is
superior in some way to something or somebody else or is an
improvement upon a situation.” The word “bun” is defined
as a “round bread roll: a small round bread roll,
sometimes sweetened and with added fruit or spice.”
Serial No. 77878602
5
Finally, the word “burger” is defined as a “Food: Same as
hamburger.”
We found the following internet evidence submitted by
the examining attorney in his September 15, 2010 Office
action to be relevant:
1. An excerpt from the South St. Burger Co.
(southstburger.com) advertising “YOUR BURGER is better with
OVER 25 TOPPINGS” and advertising “Better Sides.” In
addition, the advertisement noted the restaurant featured
“nice buns!”
2. An article posted on The Detroit News website
(detnews.com) (July 20, 2010) entitled “Sales sizzling for
‘better burgers.’” The caption under the photograph
displayed with the article reads as follows: “Higher-grade
beef, fresher or more creative toppings and better buns are
luring customers at Five Guys and other hamburger
restaurants.”3
3. An article posted on the Restaurant News Resource
website (restaurantnewsresource.com) (October 12, 2009)
reporting on Denny’s new “Better Burger” noted its “Better
Bun: Perfectly sized, perfectly toasted, perfectly

3 A similar article with the identical statement appears in an
article posted on the Richmond Times-Dispatch website
(timesdispatch.com) (July 12, 2010).
Serial No. 77878602
6
delicious sesame seed bun replaces, less fitted sesame seed
bun spread with margarine and toasted.”
4. An article posted on the Drovers website
(drovers.com) (September 16, 2009) entitled “Better beef
makes a better burger.” The first sentence reads as
follows: “Better beef makes a better burger, and consumers
are willing to pay more for it …”
5. An article posted on the Rapid City Journal
website (rapidcityjournal.com) (July 7, 2010) entitled
“Better beef makes better burgers.”
6. An advertisement for the Blues Burger Bar posted
on the Seneca Niagara Casino & Hotel website
(senecaniagracasino.com) stating that “Better Beef builds
better burgers.”
7. A review of the Labriola Bakery Café posted on
the a ham burger today website (aht.seriouseats.com)
(December 3, 2009) entitled “Great Burgers, Better Buns at
Labriola Bakery Café in Oak Brook, Illinois.”
The examining attorney also submitted a copy of
Registration No. 3410034 for the mark GRIMPA STEAKHOUSE
PREMIUM BEEF. PREMIUM TASTE. for “restaurant services.”
Registrant disclaimed the exclusive right to use
“Steakhouse” and “Premium Beef. Premium Taste.”
Serial No. 77878602
7
In his April 4, 2011 Office action, the examining
attorney submitted copies of three “Better Ingredients.
Better Pizza.” registrations owned by Papa John’s
International, Inc. The most relevant being Registration
No. 2158076 for the mark BETTER INGREDIENTS. BETTER PIZZA.
for, inter alia, restaurant services registered under the
provisions of Section 2(f).4
Applicant describes its mark as “a distinguishing
slogan.”5 A slogan can be merely descriptive if it directly
refers to a quality or characteristic of the goods or
services. See In re Boston Beer Co., 198 F.3d 1370, 53
USPQ2d 1056, 1058 (Fed. Cir. 1999) (THE BEST BEER IN
AMERICA so highly laudatory and descriptive as applied to
beer and ale that it is incapable of acquiring
distinctiveness); In re David Crystal, Inc., 145 USPQ 95,
95 (TTAB 1965) (slogan is registrable on the Principal
Register unless it is merely descriptive).

4 The April 4, 2011 Office action was the response to applicant’s
request for reconsideration filed after the notice of appeal was
filed. Applicant objected to this evidence on the ground that
evidence submitted after a notice of appeal is untimely.
(Applicant’s Brief, p. 14). However, evidence attached to a
request for reconsideration submitted with a notice of appeal,
and evidence attached to a denial of the request for
reconsideration, are considered to have been filed prior to
appeal, and are part of the application record on appeal. See In
re Davey Products Pty Ltd., 92 USPQ2d 1198, 1200-01 (TTAB 2009),
citing TBMP §§ 1204 and 1207.04 (3rd ed. 2011). In view of the
foregoing, applicant’s objection is overruled.
5 Applicant’s Brief, p. 11.
Serial No. 77878602
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Furthermore, a term that identifies a food item
prepared and sold in restaurants may be descriptive of
restaurant services. See In re Pencils Inc., 9 USPQ2d
1410, 1412 (TTAB 1988) (PENCILS held merely descriptive of
office supply store services); In re The Paint Products
Co., 8 USPQ2d 1863, 1866 (TTAB 1988) (“‘PAINT PRODUCTS CO.’
is no more registrable for goods emanating from a company
that sells paint products than it would be as a service
mark for the retail paint store services offered by such a
company’”). See also In re Tires, Tires, Tires, Inc., 94
USPQ2d 1153 (TTAB 2009) (TIRES TIRES TIRES generic for
retail tire store services); In re Lens.com, Inc., 83
USPQ2d 1444 (TTAB 2007) (LENS generic for “retail store
services featuring contact eyewear products rendered via a
global computer network”); In re Eddie Z’s Blinds &
Drapery, Inc., 74 USPQ2d 1037 (TTAB 2005)
(BLINDSANDDRAPERY.COM generic for retail store services
featuring blinds, draperies, and other wall coverings,
conducted via the Internet).
In view of the foregoing, we find that the slogan
BETTER BUNS. BETTER BURGER. is merely descriptive of
restaurant services because it is a laudatory term that
directly conveys to consumers that applicant’s restaurant
services feature high quality hamburgers with high quality
Serial No. 77878602
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buns. The Federal Circuit has held that “[l]audatory marks
that describe the alleged merit of the goods are
descriptive because they simply describe the
characteristics or quality of the goods in a condensed
form.” In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (THE ULTIMATE BIKE RACK is a
laudatory descriptive phrase). See also Burmel
Handkerchief Corp. v. Cluett, Peabody & Co., Inc., 127 F.2d
318, 53 USPQ 369, 372 (CCPA 1942) (HANDKERCHIEFS OF THE
YEAR is a laudatory descriptive phrase). Thus, we find the
term BETTER BUNS. BETTER BURGER. to be an expression of
high quality that immediately describes, without the need
for any imagination, conjecture or speculation, a food item
of outstanding quality featured in applicant’s restaurants.
See In re Best Software Inc., 58 USPQ2d 1314 (TTAB 2001)
(the words “best” and “premier” are merely descriptive
laudatory words that indicate high quality or importance).
In this regard, we note that applicant’s specimen
displaying use of its mark touts the superior quality of
applicant’s buns.
When’s the last time
your hamburger bun
came right out of the oven? The last
time you were at Fuddruckers. Our
scratched-baked buns are made fresh in
our restaurant bakeries every single day.

Serial No. 77878602
10
BETTER BUNS.
BETTER BURGER.
We disagree with applicant’s argument that the word
“Better” is vague. Applicant likens its use of “Better” to
the word “Super” which the Board found to be suggestive
when used in the mark RALSTON SUPER SLUSH for a concentrate
used to make a slush type soft drink. In re Ralston Purina
Co., 191 USPQ 237 (TTAB 1976). The Board held that the
word “Super” is not merely descriptive when it is used as
mere puffery and not to describe size or other attributes
of the product. In Ralston, the Board found that “Super”
did not describe “any real or specific item or
characteristic or quality and is therefore not merely
descriptive.” 191 USPQ at 238. However, when supported by
relevant evidence of use, commonly used words such as
“premium,” “royal,” and “best” have been found to be
descriptive laudatory terms. In re Belanger, Inc., 218
USPQ 742, 743 (TTAB 1983). See also In re Duvernoy & Sons,
Inc., 212 F.2d 202, 101 USPQ 288, 289 (CCPA 1954)
(“CONSISTENTLY SUPERIOR” is a laudatory statement used to
indicate that applicant’s goods are always superior in
quality). In this regard, the terms “better” and “best”
are readily understood comparative terms. The Random House
Dictionary of the English Language (Unabridged), p. 200 (2nd
Serial No. 77878602
11
ed. 1987) (“better” … adj., compar. of good with best as
suprl.”) and p. 198 (“best” adj. superl. of good with
better as compar.”) (emphasis in the original).6 Based on
the record before us, we find that the mark BETTER BUNS.
BETTER BURGER. in its entirety is a definite statement of
superior quality and it is not vague or nebulous. Unlike
applicant, we decline to analyze the word “Better” as a
separate and distinct element rather than as a part of the
entire mark.
Further, we disagree that the use of the word “Buns”
in applicant’s mark might be associated with “a person’s
backside. … Applicant notes that in recent years there has
been a great proliferation of restaurants featuring
scantily clad female employees.”7 There is no reference to
the word “Buns” in any of the articles submitted by
applicant to show that scantily clad female servers have
become a common feature of trade dress for restaurant
services. In fact, one of the articles submitted by
applicant is entitled “The Battle of the ‘Breastaurants,’”
thus indicating that, at least to the author of that
article, the focus of the restaurant “trade dress” is not

6 “Compar.” is the abbreviation for “comparative” and “suprl.” is
the abbreviation for “superlative.” Id. at xxxix.
7 Applicant’s Brief, p. 9.
Serial No. 77878602
12
backsides of the servers.8 The argument that the word
“Buns” in the mark BETTER BUNS. BETTER BURGER., as used by
applicant, engenders the commercial impression of scantily
clad women stretches credulity.
Also, we disagree with applicant’s assertion that its
mark is not descriptive because it is “catchy, clever,
alliterative and has a unique aural cadence.” The Papa
John’s International BETTER INGREDIENTS. BETTER PIZZA.
registrations under Section 2(f) and the GRIMPA STEAKHOUSE
PREMIUM BEEF. PREMIUM TASTE. registration have the same
structure as applicant’s mark. In addition, the articles
regarding hamburgers show that the purported “catchy,
clever, alliterative … unique aural cadence” is a common
way to refer to the quality of the hamburgers (e.g.,
“Better beef makes a better burger,” “Better Beef builds
better burgers,” and “Great Burgers, Better Buns”). From
this evidence we infer that there is a competitive need to
use the term sought to be registered.
Finally, applicant points to the existence of its
recently registered marks with the same structure: BETTER
VALUE, BETTER BURGER. (Registration No. 4009984), BETTER
TIME, BETTER BURGER. (Registration No. 4009985), BETTER

8 DMagazine (dmagazine.com) (January 4, 2011) attached to
applicant’s March 15, 2011 response.
Serial No. 77878602
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VARIETY, BETTER BURGER. (Registration No. 4009986) and
BETTER EVERYTHING, BETTER BURGER. (Registration No.
4013052). Although we have considered these registrations,
the Board is not bound by the actions of the examining
attorney based on records that are not before us. See In
re Nett Designs Inc., 57 USPQ2d at 1566 (“Even if some
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.”). Each case must stand on its own record, and we
find that, in this case, the examining attorney has
established that applicant’s mark is merely descriptive of
applicant’s services.
When we view the proposed mark in its entirety, we
conclude that BETTER BUNS. BETTER BURGER. is merely
descriptive of applicant’s restaurant services. The mark
immediately informs prospective customers that applicant’s
restaurant services feature hamburgers with buns that are
of superior quality. No imagination is required to discern
this feature of applicant’s restaurant services.
Decision: The refusal to register is affirmed.