Panda Restaurant Group, Inc.

Trademark Trial and Appeal Board

Mar 15, 2012

No. 77757688 (T.T.A.B. Mar. 15, 2012)

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.

Mailed: March 15, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Panda Restaurant Group, Inc.
________

Serial No. 77757688
_______

Katherine L. McDaniel of Fulwider Patton LLP for Panda
Restaurant Group, Inc.

William Breckenfeld, Trademark Examining Attorney, Law
Office 116 (Michael W. Baird, Managing Attorney).
_______

Before Quinn, Kuhlke, and Wolfson, Administrative Trademark
Judges.

Opinion by Wolfson, Administrative Trademark Judge:

Panda Restaurant Group, Inc. (“applicant”) has filed
an application for the standard character mark BEIJING BEEF
for “prepared Chinese food, namely, entrees consisting
primarily of meat and vegetables” in International Class
29.1 The examining attorney refused registration of
applicant’s mark under the provisions of Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground

1 Filed June 11, 2009, on the basis of applicant’s alleged first
use and first use in commerce on March 20, 2008. The term “BEEF”
has been disclaimed.

Serial No. 77757688

2

that the mark is merely descriptive of a style of Chinese
regional cooking.2 Upon final refusal of registration,
applicant filed a timely appeal. The appeal has been fully
briefed. For the reasons discussed below, we affirm the
refusal to register.
A mark is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Whether a particular term is merely
descriptive is determined in relation to the products for
which registration is sought and the context in which the
term is used, not in the abstract or on the basis of
guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ
215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224

2 An earlier refusal of the application on the ground that the
mark is merely descriptive of a variety of Chinese food dishes
referred to as “Beijing Beef” was withdrawn. Applicant argues in
its brief that following the withdrawal (and publication of the
mark that was subsequently withdrawn), the next Office action
should have issued as a non-final action, and not as a final
refusal. However, we find that the final refusal did not raise a
new ground for refusal. The examining attorney asserted in both
the first and final Office actions that the mark was
unregistrable as merely descriptive. Moreover, applicant had an
opportunity to object to the timing of the final refusal in its
request for reconsideration; however, the request was silent on
the matter. The fact that the examining attorney based the mere
descriptiveness final refusal on a somewhat different rationale
from that expressed in the initial refusal does not render the
final refusal premature. See Trademark Rule 2.64; TMEP § 714.03
and § 714.06 (8th ed. 2011).

Serial No. 77757688

3

(TTAB 2002). In other words, the issue is whether someone
who knows what the products are will understand the mark to
directly convey information about them. In re Tower Tech,
Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent &
Trademark Serv. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In
re Home Builders Assn. of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990).
Applicant’s mark is BEIJING BEEF for prepared Chinese
food. The examining attorney contends that there is a
style of cuisine known as “Beijing cuisine,” emanating from
the region of Beijing, China. It is not disputed that
Beijing is the capital city of the People’s Republic of
China, located in the northeastern part of China.3 The
examining attorney further contends that “there are dishes
known as Beijing Beef.”4 Applicant, on the other hand,
argues that BEIJING BEEF is a term coined by applicant to
suggest a Chinese-inspired dish that applicant has
successfully marketed since March 2008.5
The examining attorney relies on several pieces of
Internet evidence to support his position, including:

3 Family Reference Atlas of the World, p. 180, (National
Geographic 2d ed. 2007). The Board may take judicial notice of
reference works such as encyclopedias and atlases. In re London
& Edinburgh Insurance Group Ltd., 36 USPQ2d 1367, 1370 (TTAB
1995).
4 Examining Attorney’s Brief, (unnumbered) p. 5.
5 March 9, 2009 Response to Office Action, p. 3.
Serial No. 77757688

4

1. Reach To Teach Guide to China -- Chinese Food
“Beijing Cuisine is a refined
combination of Shangdong and Imperial
cuisine. Beijing chefs generally put
more effort in the method of cooking
while using more common ingredients. …
The most famous dish associated with
Beijing is Peking Roast Duck.”6

2. Beijing Restaurant Review, San Francisco, 94112
“Beijing Restaurant is a new Beijing
style Chinese restaurant in San
Francisco’s Excelsior district that
opened in early 2009. It’s gotten lots
of hype on Chowhound. It is a family
owned place that focuses on authentic
Beijing dishes. … Beijing Beef Pancake
($7.25) had lots of beef sandwiched
between layers of a pan fried scallion
pancake. … This restaurant offers up
some very good Beijing Chinese food and
at reasonable prices….”7

3. San Francisco Bay Area Digest: Beijing’s Fare Is
Capital
“A lot of places say they specialize in
Beijing cuisine, but this one really
means it, with dishes you’ll rarely
find in the Bay Area…. The menu is
full of dumplings, pancakes, … and lots
of Beijing-style meat dishes. … Top
choices include … Beijing beef pie….
Beijing beef pancake (kind of like a
taco) and house special spicy eggplant,
while not so spicy, are also
delicious.”8

6 Final Office action dated October 21, 2010. At
www.reachtoteachrecruiting.com. Snapshot of the page as it
appeared on October 19, 2010; accessed October 21, 2010.
7 Office action dated September 15, 2009. At www.foodnut.com.
Snapshot of the page as it appeared on September 10, 2009;
accessed September 15, 2009.
8 Office action dated September 15, 2009. At www.chow.com.
Snapshot of the page as it appeared on September 7, 2009;
accessed September 15, 2009
Serial No. 77757688

5

4. Wikipedia entry under “American Chinese cuisine” has a
heading titled “Westernized versions of native Chinese
dishes.” One of these is “Beijing Beef--This dish
exists in native Chinese form, but using gai-lan
(Chinese broccoli) rather than American broccoli.”9

5. Wikipedia entry under “Beijing cuisine”
“Beijing cuisine ([Chinese characters
and transliterations omitted…];
literally “capital cuisine”) is a
cooking style in Beijing, China. It is
also formally known as Mandarin
cuisine.
…
Since Beijing has been the Chinese
capital city for centuries, its cuisine
has been influenced by culinary
traditions from all over China, but the
cuisine that has exerted the greatest
influence on Beijing cuisine is the
cuisine of the eastern coastal province
of Shandong. Beijing cuisine has
itself, in turn, also greatly
influenced other Chinese cuisines ….”10

This article includes a list of “Well-
known Beijing dishes and street food.”
While there is no entry for “Beijing
Beef,” there are other beef entrees.

6. Abacus (see Chinese Culture section)--Food.
Introduction: Beijing Food
“Beijing food or Northern food is a
combination of different areas

9 Final Office action dated October 21, 2010. At
http://en.wikipedia.org/wiki/American_Chinese_cuisine. Snapshot
of the page as it appeared on October 19, 2010; accessed October
21, 2010. Applicant’s argument that the Wikipedia entry carries
a high-level warning against the reliability of the information
goes to the probative value of the evidence, and not its
admissibility. The “Board will consider evidence taken from
Wikipedia so long as the non-offering party has an opportunity to
rebut that evidence….” In re IP Carrier Consulting Group, 84
USPQ2d 1028, 1032 (TTAB 2007).
10 Final Office action dated October 21, 2010. At
http://en.wikipedia.org/wiki/Beijing_cuisine; accessed October
21, 2010.
Serial No. 77757688

6

varieties [sic] namely Hebei, Sangdong,
Lower Yangzi River area, Mongolia and
Xinjiang.”11

7. Muztagh Travel Service. Local Cuisines of Beijing.
“A prime example of Beijing cuisine is
the Beijing Roast Duck.”12

8. Beef - The Online Reference & Resource for
Foodservice. Funded by the Beef Checkoff. BEEF FOR
FOODSERVICE PROFESSIONALS -- “Beef Recipes”
“Beijing Beef. Thinly-sliced flank
steak stir-fried with asparagus and red
peppers and served over fresh
cabbage.”13

9. “Dr. Delicious -- Beijing Beef recipe today with the
daily updated recipe from NYC Chef Dr. Delicious.”14

10. Menu from Chef Chu’s. The restaurant appears to be
located in the United States as the telephone number
for ordering is 650-948-2696.
“Grilled Beijing Beef. Marinated beef
strips, wok-roasted with Beijing bean
sauce & green onion, garnished with
crispy rice noodles.”15

11. Beijing Chinese Restaurant in Houston, Texas

11 Final Office action dated October 21, 2010. At www.west-meet-
east.com. Snapshot of the page as it appeared on October 15,
2010; accessed October 21, 2010.
12 Final Office action dated October 21, 2010. At
www.muztagh.com; accessed October 21, 2010.
13 Office action dated September 15, 2009. At
www.beeffoodservice.com. Snapshot of the page as it appeared on
September 5, 2009; accessed September 15, 2009. Applicant’s
argument that this dish is sold only to foodservice professionals
and not to the general public is unavailing. There are no
limitations in the identification of goods of applicant’s
application. Thus, applicant’s prepared Chinese foods are
presumed to be offered to all trade channels normal for such
goods, which would include foodservice professionals.
14 Office action dated September 15, 2009. At www.readio.com.
Snapshot of the page as it appeared on September 1, 2009;
accessed September 15, 2009.
15 Office action dated September 15, 2009. At www.chefchu.com.
Snapshot of the page as it appeared on August 18, 2009; accessed
September 15, 2009.
Serial No. 77757688

7

Menu includes
“Beijing Beef Skewers,”
“Beijing Special Wonton Soup” and
“Beijing Special Noodles Soup”16

Applicant has also submitted Internet evidence to show
that the term BEIJING BEEF uniquely identifies applicant’s
recipe. Applicant argues that based on the searches it
conducted, the mark names a dish made from applicant’s
proprietary recipe and does not refer to a regional style
of cooking. The results of applicant’s searches include:
1. Applicant’s 2010 search for “Beijing Beef” at
www.google.com wherein 20 of the first 29 hits directly
refer to applicant either in the heading or body of the
results.17

2. Applicant’s 2011 search for “Beijing Beef” at
www.google.com wherein seven out of eleven entries identify
“Beijing Beef” as a recipe from applicant; one of the
listings uses “Chinese crispy beef” as an alternative name
for the dish. 18

3. Applicant’s Wikipedia search for “Beijing beef”
wherein applicant printed the first twenty listed entries
(out of 141 entries) in summary fashion. The first of
these identifies “Beijing Beef” as an entrée offered by
applicant. The second listing is headed “Beijing cuisine”
but no substantive information is included as to the nature
of the entry. Another entry, for “Chinese Islamic
cuisine,” notes that it “is heavily influenced by Beijing
cuisine.” One of the other entries repeats an earlier

16 Office action dated September 15, 2009. At
www.beijing1960.com/menu. Snapshot of the page as it appeared on
September 6, 2009; accessed September 15, 2009.
17 Applicant’s Response to Office action dated September 15, 2009.
Exhibits C, E, F, I, L, and N. At www.google.com; accessed
February 17, 2010.
18 Applicant’s Request for Reconsideration. At www.google.com;
accessed March 18, 2011.
Serial No. 77757688

8

posting (listed above), and none of the other entries is
relevant.19

4. A website at which was posed “How many calories
does the average person eat at a Chinese buffet?” listed
“Beijing Beef” as a buffet item, along with nutritional
information, attributing the information to applicant.20

5. Other websites attributing BEIJING BEEF to
applicant, such as “Panda Express’ Beijing Beef Copycat”21
and “Beijing Beef copycat of Panda Express recipe.”22

Based on these results, applicant argues that “Beijing
Beef” identifies applicant’s own food dish; that there is
no well-understood designation that refers to beef dishes
emanating from Beijing and, therefore, no readily
understood type of “Beijing” cooking style.
In order to determine whether the term BEIJING BEEF
serves as a source indicator for applicant’s specific dish,
or merely describes a type of cuisine, we consider the
entirety of the evidence. It is the “perception of the
relevant purchasing public” which sets the standard for
determining mere descriptiveness. In re Nett Designs Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)
(citation omitted).

19 Applicant’s Request for Reconsideration. At
http://en.wikipedia.org; accessed March 25, 2011.
20 Applicant’s Response to Office action dated September 15, 2009.
At http://wiki.answers.com; accessed February 24, 2010.
21 Applicant’s Response to Office action dated September 15, 2009.
At www.recipezaar.com; accessed February 24, 2010.
22 Applicant’s Response to Office action dated September 15, 2009.
At www.bigoven.com; accessed February 24, 2010.
Serial No. 77757688

9

Upon consideration of the evidence and arguments
presented, we agree with the examining attorney that the
term “BEIJING BEEF” is merely descriptive of applicant’s
“prepared Chinese food, namely, entrees consisting
primarily of meat and vegetables.” Such term immediately
conveys, without speculation or conjecture, that the goods
are of a category of food prepared using the Beijing style
of cooking.
While the record clearly shows different entities
using this term in connection with prepared foods, even
were applicant the first, or only entity, to use the term
BEIJING BEEF in relation to a prepared Chinese food dish
using meat and vegetables, such fact would not be
dispositive. See In re Tekdyne Inc., 33 USPQ2d 1949, 1953
(TTAB 1994) and cases cited therein. Nor does the fact
that there appear to be variations on the recipe from which
“Beijing Beef” dishes are prepared change the result. The
references show that there is a type of cooking known as
“Beijing cuisine.” A prepared food dish known as “Beijing
Beef” may be expected to have been made using Beijing
cooking style techniques. Accordingly, the mark is merely
descriptive for a prepared Chinese food dish.
Decision: The refusal to register under Section
2(e)(2) is affirmed.