Perdue Foods LLCDownload PDFTrademark Trial and Appeal BoardMar 26, 2019EX (T.T.A.B. Mar. 26, 2019) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: March 26, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Perdue Foods LLC _____ Serial No. 87412284 _____ Rebecca Liebowitz of Venable LLP, for Perdue Foods, LLC. Lourdes Ayala, Trademark Examining Attorney, Law Office 106, Mary I. Sparrow, Managing Attorney. _____ Before Taylor, Bergsman and Larkin, Administrative Trademark Judges. Opinion by Taylor, Administrative Trademark Judge: Perdue Foods, LLC (“Applicant”) seeks registration on the Principal Register of the standard character mark PERDUE FAMILY FARMS for “[p]roviding of food via a mobile truck” in International Class 43.1 The Trademark Examining Attorney has finally refused registration pursuant to Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), based on Applicant’s failure 1 Application Serial No. 87412284 was filed on April 14, 2017, based upon Applicant’s allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 87412284 - 2 - to comply with the requirement to disclaim the wording FAMILY FARMS, as a whole, on the ground that it is merely descriptive of a feature or characteristic of Applicant’s services within the meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). Applicant appealed, and both Applicant and the Examining Attorney filed briefs. We affirm the refusal of registration in the absence of a disclaimer. I. Applicable Law Under Section 6(a) of the Trademark Act, “[t]he Director may require the applicant to disclaim an unregistrable component of a mark otherwise registrable.” Merely descriptive terms are unregistrable, under Trademark Act Section 2(e)(1), and therefore, are subject to disclaimer if the mark is otherwise registrable. Failure to comply with a disclaimer requirement is grounds for refusal of registration. See 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 Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007); In re Nat’l Presto Indus., Inc., 197 USPQ 188 (TTAB 1977). The test for determining whether a mark or term is merely descriptive is whether it immediately conveys information concerning a quality, characteristic, function, ingredient, attribute or feature of the product or service in connection with which it is used, or intended to be used. See In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). The determination of whether a mark or term is merely descriptive must be made in relation to the goods or services for Serial No. 87412284 - 3 - which registration is sought. Id. It is not necessary, in order to find a mark or term merely descriptive, it describe each feature of the goods or services, only that it describe a single, significant ingredient, quality, characteristic, function, feature, purpose or use of the goods or services. Id.; In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987). II. Arguments and Evidence The Examining Attorney maintains that the wording “Family Farms,” as a whole, when used with the associated mobile food truck services, refers to a feature and characteristic of the services, namely, “the wording indicates that the food sold at the mobile food truck comes from a family owned and/or operated farm.”2 The Examining Attorney has supported the refusal with the following: A. Internet materials defining the term “family farm”: • A family farm is generally understood to be a farm owned and/or operated by a family; it is sometimes considered to be an estate passed down by inheritance. It contrasts with farms operated as collectives, trusts, non-family corporations or in other institutionalized forms;3 • A family farm is any farm where the majority of the business is owned by the operator and individuals 2 6 TTABVUE 4. Page references herein to the application record refer to the .pdf version of the United States Patent and Trademark Office (USPTO) Trademark Status & Document Retrieval (TSDR) system. References to the briefs refer to the Board’s TTABVUE docket system. The number preceding “TTABVUE” corresponds to the docket entry number(s), and any number(s) following “TTABVUE” refer to the page number(s) of the docket entry where the cited materials appear. 3 July 13, 2017 Priority Office Action; TSDR 53. The definition was taken from Wikipedia accessed on July 12, 2017. (https://en.wikipedia.org/wiki/Family farm). Serial No. 87412284 - 4 - related to the operator, including through blood, marriage, or adoption;4 and • A practice continued throughout the nation’s history is family farming. The oldest form of managing crops, a family farm is a farm owned by a family, whose operation is passed down to future generations. The family farm is typically viewed as its own culture and it beneficial to the preservation of the land.5 B. Internet materials from websites of various third-party “family farms,” as contemplated by the definitions above, showing that they sell products they grow and produce:6 • There are almost two million farms in the U.S. About 80% of those are small farms, and a large percentage are family owned. More and more of these farmers are now selling their products directly to the public…; (https://www.localharvest.organic- farms/);7 • Coombs Family Farms states “Seven Generations of Exceptional Maple … by choosing Coombs Family Farm products, you’re helping sow the seeds for a healthier, more sustainable society.” (https://coombsfamilyfarms.com/products/);8 • Riggs Family Farms states “[w]e do sell fertile eggs(chicken, turkey, a variety of quail…) chicks, 4 January 30, 2018 Office Action; TSDR 40-41 (https://www.usda.gov/media/press- release/2015/03/17family-farms-are-focous-new-agriculture-census-data). 5 Id. at TSDR 35-36 (https://familyfarmingahap.weebly.com/what-is-family-farming.html). 6 We have not considered the materials from C&D Family Farms (January 30, 2018 Office Action; TSDR 15-17), because we cannot ascertain the products offered and the materials from Emerald Family Farms (id. at 24-25), because it appears to be a farm collective under a “family” moniker. The materials from Food TrucksIn (id. at 26) and USDA National Institute of Food and Agriculture (id. at 37-38) are not particularly probative of the issues on appeal and were not highlighted in the Examining Attorney’s brief. 7 January 30, 2018 Office Action; TSDR 5-6. 8 Id. at TSDR 7-8. Serial No. 87412284 - 5 - turkey chicks, guinea quail, peacock, New Zealand bunnies, Sulcata Tortoises, Nigerian pygmy goats, and more….What we feed our animals….We raise…” (https://riggsfamilyfarms.wordpress.com/farm- goods/);9 • Garver Family Farm10 Market features vegetables and flowers. (https://garverfarmmarket.com/ goods/);11 • Burroughs Family Farm features and sells milk, cheeses, olive oils, almond butters. (https://burroughsfamilyfarms.com/products/);12 • Muzzi Family Farms states it “is family owned and operated. When your name is on the door, you are a little bit more. [W]e are dedicated to growing, processing, and providing the finest quality fresh and frozen vegetables to food manufacturers and food service providers, and with a limited line of retail package produce…. ” (https://muzzifamilyfarms.com/);13 • Tao Family Farms features corn related products such as corn, corn flour and corn related products. (https://taosfamilyfarms.com/);14 and 9 Id. at TSDR 9-10. 10 The deletion of the plural “s” to the word “farm” does not diminish the probative value of the evidence. “It is well established that trademarks consisting of singular and plural forms of the same term are essentially the same mark.” Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (citing Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 341 (CCPA 1957) (finding no material difference between the singular and plural forms of ZOMBIE such that the marks were considered the same mark)). 11 January 30, 2018 Office Action; TSDR 11-12. 12 Id. at TSDR 13-14. 13 Id. at TSDR 18. 14 Id. at TSDR 19-21. Serial No. 87412284 - 6 - • O’Brien Family Farms features fruits and vegetables. (https://obrienfamilyfarms.com/).15 C. A Copy of an Internet article discussing a food truck that features family farm [Dad’s ranch] raised meat and produce. Fort Collins Food Trucks shows that “Farm Fusion is farm- to-table food served fresh. It’s hard to be more ‘farm-to- table’ when the meat and produce come directly from my dad’s ranch and from local farms in northern Colorado. Our mission is to serve the best quality food, straight from the farms and ranches you might by pass daily. We like to change the menu frequently based off of availability and depending on the occasion.” (https://fortcollinsfoodtrucks.com/place/farm-fusion-food- truck/).16 D. Copies of Internet articles discussing food trucks that feature farm raised meat or produce: An article from First Coast Health Source, titled “Farm to Family Food Truck- Delivering fresh food to the most in need” by Allie Olsen, highlights food that is grown on a farm and is sold/provided at food trucks. [September 1, 2016] (https://www.healthsourcemag.com/article.farm-family- food-truck-delivering-fresh-food-those-most-need);17 and An article from DownTown Devil states: “Patrons enjoy the fresh-off-the-farm offerings of SuperFarm SuperTruck, which incorporates homegrown food into dishes such as pulled pork and barbecue chicken.” Devon Shaw, “‘Farm owners’ food truck showcases farm favorites with a twist.” [April 13, 2012] 15 Id. at TSDR 22-23. 16 Id. at TSDR 30-31. 17 Id. at TSDR 32-34. Serial No. 87412284 - 7 - (https://downtowndevil.com/2012/04/13/13/26340/superfa m-supertruck-food-truck-casey-stennii).18 E. Copies of various third-party registrations for marks that either include disclaimers of the wording FAMILY FARMS, or that issued without a disclaimer of that wording based on a showing of acquired distinctiveness as to that wording pursuant to Section 2(f) of Trademark Act, 15 U.S.C. § 1117(f), to show that the wording has been found descriptive for related goods and services.19 A sampling of the registrations follow: Registration No. 4746205 for the mark FAMILY FARMS MARKET (FAMILY FARMS Section 2(f); MARKET disclaimed) for “meat”; Registration No. 4823080 for the mark COASTLINE FAMILY FARMS (FAMILY FARMS disclaimed) for “fresh fruit and vegetables”; Registration No. 4707461 for the mark MCCARTHY FAMILY FARMS, LLC (FAMILY FARMS, LLC disclaimed) for, inter alia, “dairy farming services”; Registration No. 4738471 for the mark CRESTWOOD FAMILY FARMS (FAMILY FARMS disclaimed) for, inter alia, “beef; eggs” and “honey; gift baskets containing honey”; Registration No. 4975929 for the mark HUMBOLDT FAMILY FARMS (FAMILY FARMS disclaimed) for, “fresh fruit, excluding peaches and crab apples, and fresh vegetable, excluding lettuce”; and Registration No. 5145478 for the mark UNDERWOOD FAMILY FARMS (FAMILY FARMS disclaimed) for, inter alia, retail store services featuring a variety fresh fruits, vegetables and produce and farm fresh eggs. 18 Id. at TSDR 28-29. 19 July 13, 2017 Priority Office Action; TSDR 5-52. Serial No. 87412284 - 8 - Applicant, in traversing the refusal, questions the probative value of the Examining Attorney’s evidence, and maintains that the use of the phrase FAMILY FARMS is suggestive in connection with its identified services. Applicant particularly argues that: the relevant application does not identify “food” or goods at all, for that matter. Instead, the application covers the provision of food “via a mobile truck.” Indeed, the services are one step removed from the goods the Examiner rests her refusal on, and as a result the assertion that “FAMILY FARMS” describes this food has no bearing on whether it also describes food truck services. … The service of providing a food truck does not itself entail retailing food products, nor does it correspond to the food goods themselves. … The core of the service lies in the preparation of food on a truck for consumption at an unfixed location. … This mobility and flexibility is the central feature of food truck services, not the food items provided. Applicant’s Br. p. 6.20 In making this argument, Applicant alternately used the term “food truck” when discussing its services of providing food via a mobile truck. The online MERRIAM-WEBSTER DICTIONARY defines “food truck” as “a large wheeled vehicle from which food is sold that typically contains cooking facilities where the food is prepared.” (www.merriam-webster.com/dictionary/foood%20truck).21 While mobility and flexibility of location may be a key feature in the food truck industry, so 20 4 TTABVUE 7. 21 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); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). Serial No. 87412284 - 9 - too, is the food which is served therefrom. Contrary to Applicant’s contention, we find that the Internet evidence and third-party registrations made of record by the Examining Attorney demonstrate that the phrase FAMILY FARMS describes meat, produce and other food stuffs that come from family farms, and that these types of food are featured by food trucks. As noted above, in our analysis of the phrase FAMILY FARMS, we must consider “the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods [or services] because of the manner of its use or intended use.” Chamber of Commerce of the U.S., 102 USPQ2d at 1219. Even if, as Applicant opines, the phrase FAMILY FARMS “would first and foremost” communicate a suggestion of fresh or wholesome food made with healthy and processed ingredients, Br. p. 6-7,22 in the context of Applicant’s services that phrase immediately communicates to consumers a significant attribute of the services, namely, the type of farm from which the fresh or wholesome food provided through the truck is sourced. After careful consideration of all of the evidence and arguments presented, including evidence and arguments not specifically discussed herein, we conclude that when applied to Applicant’s services, the wording FAMILY FARMS immediately describes, without any multi-step thought process, a feature or characteristic of those services, namely, that the source of the ingredients or food prepared and served by Applicant in “[p]roviding of food via a mobile truck” is “family farms.” 22 4 TTABVUE 7-8. Serial No. 87412284 - 10 - Decision: The refusal to register based on the requirement for a disclaimer of the wording FAMILY FARMS is affirmed. However, if Applicant submits the required disclaimer of FAMILY FARMS to the Board within thirty days of the mailing date of this decision, the decision will be set aside as to the affirmance of the disclaimer requirement.23 See Trademark Rule 2.142(g), 37 C.F.R. § 2.142(g). 23 The standard printing format for the required disclaimer text is as follows: “No claim is made to the exclusive right to use FAMILY FARMS apart from the mark as shown.” TMEP § 1213.08(a)(i). Copy with citationCopy as parenthetical citation