Productos Alimenticios Bocadeli, S.A. de C.V.

Trademark Trial and Appeal Board

Aug 22, 2018

No. 87039617 (T.T.A.B. Aug. 22, 2018)

This Opinion is Not a
Precedent of the TTAB

Hearing: July 17, 2018 Mailed: August 22, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Productos Alimenticios Bocadeli, S.A. de C.V.
_____

Serial No. 87039617
Serial No. 87057223
(Consolidated)
_____

Samuel F. Pamias of Hoglund & Pamias, P.S.C.,
for Productos Alimenticios Bocadeli, S.A. de C.V.
Diane Collopy, Trademark Examining Attorney,1 Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Kuhlke, Shaw, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Productos Alimenticios Bocadeli, S.A. de C.V. (“Applicant”) seeks registration on
the Principal Register of the proposed mark FRIJOLI CHIPS, both in standard
characters,2 and in the stylized form shown below:

1 Ms. Collopy examined the applications that are the subject of these appeals and filed the
Patent and Trademark Office’s brief. Trademark Examining Attorney Nicholas Coleman
appeared at the oral hearing on behalf of the Patent and Trademark Office.
2 Application Serial No. 87057223 was filed on June 1, 2016 under Section 44(e) of the
Trademark Act, 15 U.S.C. § 1126(e), based on Applicant’s registration of the mark in El
Serial Nos. 87039617 and 87057223 (Consolidated)
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3
Both applications cover “Baking powder; bread; cakes; cereal based snack food; cocoa;
coffee substitutes; flour; honey; ice; ice cream; molasses syrup; mustard; pastry;
pepper; preparations made from cereals, namely, cereal bars, processed cereals,
wheat-based snack foods, cereal based snack food; rice; sago; salt; sauces; spices;
sugar; tapioca; tarts; tea; vinegar; yeast,” in International Class 30.
The Trademark Examining Attorney has refused registration of both marks under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that they
are merely descriptive of the particular goods identified in the applications as “cereal
based snack food; preparations made from cereals, namely, cereal bars, processed
cereals, wheat-based snack foods, cereal based snack food; spices; pastry.”4 Further,
as to Application Serial No. 87039617, the Examining Attorney found that the
stylization of the mark does not create a commercial impression separate and apart
from the impression made by the wording itself. After the Examining Attorney made

Salvador. Applicant has disclaimed the exclusive right to use the word CHIPS apart from the
mark as shown.
3 Application Serial No. 87039617 was filed on May 17, 2016 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. Applicant has disclaimed the exclusive right to use the word
CHIPS apart from the mark as shown.
4 Applicant’s remaining goods are not subject to the refusals.
Serial Nos. 87039617 and 87057223 (Consolidated)
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the refusals final, Applicant appealed in both cases and moved to consolidate the
appeals, and the Board consolidated them in light of the similarity of the records and
issues in the two cases.5 11 TTABVUE in Serial No. 87039617 and Serial No.
87057223.6 Counsel for Applicant and Examining Attorney Coleman appeared at an
oral hearing before the panel on July 17, 2018. We affirm the refusals to register.
I. Record on Appeal
The records on appeal in the two cases are identical and contain the following:
1. A translation from Google Translate of the Spanish phrase “con frijoles” as
“with beans,” made of record by the Examining Attorney;7
2. A page from Applicant’s website showing the packaging for one of
Applicant’s products sold under the applied-for mark, made of record by the
Examining Attorney;8
3. Pages from third-party websites showing the use of the word “chip” to
identify snack foods or ingredients of snack foods and the phrase “frijole
chip” to identify a food item, and showing that beans are an ingredient in,

5 Although we must make our determination as to the marks in their entireties, including
the stylization in the mark in Application Serial No. 87039617, Applicant does not contend
that if the words FRIJOLI CHIPS are found to be merely descriptive, it is entitled to
registration of the stylized version of its proposed mark because the stylization creates a
separate and inherently distinctive impression apart from the words themselves.
Accordingly, we, like Applicant, will refer to the applied-for marks in the singular.
6 Except where otherwise indicated, citations in this opinion to the briefs are to the
TTABVUE file in Application Serial No. 87039617 and citations to the record are to the file
history of that application in the Trademark Status & Document Retrieval (“TSDR”) system.
7 September 8, 2016 Office Actions at 2.
8 Id. at 3.
Serial Nos. 87039617 and 87057223 (Consolidated)
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or are used to flavor, chips and pastries, made of record by the Examining
Attorney;9
4. Definitions from THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE (ahdictionary.com) of “frijole” as “a bean cultivated and used for
food,” and of “chip” as a “thin, usually fried slice of food” and a “very small
piece of food,” made of record by the Examining Attorney;”10
5. A page from the MERRIAM-WEBSTER DICTIONARY (merriam-webster.com)
showing that the word “frijoli” does not appear in that dictionary, made of
record by Applicant;11 and
6. Pages from the DICCINARIO DE LA LENGUA ESPAÑOLA of the Real Academia
Española (dle.rae.es) showing that the word “frijoli” does not appear in that
dictionary, made of record by Applicant.12
II. Analysis of Mere Descriptiveness Refusals
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the goods of the
applicant is merely descriptive . . . of them.” A mark is “merely descriptive” within
the meaning of Section 2(e)(1) “if it immediately conveys information concerning a
feature, quality, or characteristic of the goods or services for which registration is
sought.” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017)

9 Id. at 4-8; March 30, 2017 Office Actions at 2-3.
10 September 8, 2016 Office Actions at 9.
11 March 8, 2017 Responses to Office Actions at 13-16.
12 Id. at 17-22.
Serial Nos. 87039617 and 87057223 (Consolidated)
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(citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir.
2007)). “A mark need not immediately convey an idea of each and every specific
feature of the goods in order to be considered merely descriptive; it is enough if it
describes one significant attribute, function or property of the goods.” In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1513 (TTAB 2016) (citing In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987)).13
Whether a mark is merely descriptive is “evaluated ‘in relation to the particular
goods for which registration is sought, the context in which the mark is used, and the
possible significance the term would have to the average consumer because of the
manner of its use or intended use,’” Chamber of Commerce, 102 USPQ2d at 1219
(quoting Bayer, 82 USPQ2d at 1831), and “not in the abstract or on the basis of
guesswork.” Fat Boys, 118 USPQ2d at 1513 (citing In re Abcor Dev. Corp., 588 F.2d
811, 200 USPQ 215, 218 (CCPA 1978)); see also Bayer, 82 USPQ2d at 1831. “In other
words, we evaluate whether someone who knows what the goods are will understand
the mark to convey information about them.” Fat Boys, 118 USPQ2d at 1515 (citing
DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d
1753, 1757 (Fed. Cir. 2012)). A mark is suggestive, and not merely descriptive, if it

13 A “mark need not be merely descriptive of all recited goods or services in an application. A
descriptiveness refusal is proper ‘if the mark is descriptive of any of the [goods] for which
registration is sought.’” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d
1217, 1219 (Fed. Cir. 2012) (quoting In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087,
1088 (Fed. Cir. 2005)). As noted above, the Examining Attorney has refused registration only
as to certain goods identified in the applications. We may affirm the refusals against all of
the refused goods if the marks are merely descriptive of any of those goods, but Applicant is
entitled to have the applications proceed to publication for opposition as to the others. See
Trademark Rule 2.65(a)(1), 37 C.F.R. § 2.65(a)(1).
Serial Nos. 87039617 and 87057223 (Consolidated)
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requires imagination, thought, and perception on the part of someone who knows
what the goods or services are to reach a conclusion about their nature from the mark.
See, e.g., Fat Boys, 118 USPQ2d at 1515.
Evidence that a term is merely descriptive to the relevant purchasing public may
be obtained from any competent source, such as dictionaries, newspapers, surveys,
labels, packaging, or advertising materials. In re Mecca Grade Growers, LLC, 125
USPQ2d 1950, 1953 (TTAB 2018) (citing Bayer, 82 USPQ2d at 1831 and Abcor, 200
USPQ at 218). “It may also be obtained from Applicant’s own specimen of use and
any explanatory text included therein,” id. (citing N.C. Lottery, 123 USPQ2d at 1710),
as well as from information provided by the applicant during prosecution. In re
Calphalon Corp., 122 USPQ2d 1153 (TTAB 2017).
We begin our analysis by considering the nature of Applicant’s goods. In response
to an information request on that subject during prosecution, Applicant stated that
they “consist of extruded corn products seasoned with a mix of dehydrated beans,
dairy and other ingredients.”14 The Examining Attorney also made of record a picture
of packaging for Applicant’s corn-based chips from Applicant’s website:

14 March 8, 2017 Responses to Office Action at 11. Applicant’s counsel confirmed at the oral
hearing that some of Applicant’s goods contain bean powder.
Serial Nos. 87039617 and 87057223 (Consolidated)
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15
The Spanish words “con Frijoles” that appear on the package mean “with beans.”16
Applicant’s counsel acknowledged at the oral hearing that the corn-based chips
shown in the picture fall within the goods identification “cereal based snack foods” in
the applications. Applicant’s packaging illustrates Applicant’s use of its mark for
those goods,17 and the packaging informs the consumer that they contain beans.
Applicant discounts the significance of this fact, arguing that if its “mark is
construed as a misspelling of ‘frijole’, it is not merely descriptive of the goods
identified in the instant application” because it “merely sheds light on the fact that
[Applicant’s] goods may include ‘beans’, without describing any ingredient, quality,

15 September 8, 2016 Office Actions at 3.
16 September 8, 2016 Office Actions at 2 (Google Translate).
17 Contrary to Applicant’s suggestion that we should not consider its packaging in assessing
descriptiveness, 7 TTABVUE 3-4, the Federal Circuit has held that we must consider “the
context in which the mark is used, and the possible significance the term would have to the
average consumer because of the manner of its use or intended use.” Chamber of Commerce,
102 USPQ2d at 1219 (quotation omitted). See also N.C. Lottery, 123 USPQ2d at 1710
(considering explanatory text on applicant’s specimen of use).
Serial Nos. 87039617 and 87057223 (Consolidated)
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characteristic, function, feature, purpose, or use of those goods with a sufficient
degree of particularity to warrant a descriptiveness refusal.” 4 TTABVUE 13. This
argument is unavailing. A term that describes an ingredient of goods is merely
descriptive of those goods See, e.g., In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d
1574, 1575-76 (Fed. Cir. 2015). If, as Applicant puts it, the word FRIJOLI “is
construed as a misspelling of ‘frijole’,” 4 TTABVUE 13, and that causes the mark, as
a whole, to convey to consumers that Applicant’s goods “include beans,” id., that
message would be sufficiently particular to make the mark merely descriptive of the
goods.18 Indeed, it is self-evident that the ingredients of food products are among the
most “significant attribute[s] . . . of the goods,” Fat Boys, 118 USPQ2d at 1513, a
notion confirmed by Applicant’s decision to state, on the front of its packaging, that
its goods contain beans, and to describe its goods on its website as consisting of a
“[d]elicate combination of corn-based chips with the one and only seasoning…the
favorite one!”19

18 The cases cited by Applicant in support of its argument are inapposite. 4 TTABVUE 13. In
In re TMS Corp. of the Americas, 200 USPQ 57, 59 (TTAB 1978), the Board found that THE
MONEY SERVICE for “financial services wherein funds are transferred to and from a
savings account from locations remote from the associated financial institution” suggested “a
number of things, but yet falls short of describing applicant’s services in any one degree of
particularity.” In In re Silva Mind Control Int’l Inc., 173 USPQ 564 (TTAB 1972) the Board
found that MIND CONTROL for lectures and lecture-type educational programs of a
scientific and philosophical character was “a somewhat nebulous term in that it does not with
any degree of particularity indicate the nature and character of applicant’s services.” Finally,
in Decatur Fed. Savs. & Loan Ass’n v. Peach State Fed. Savs. & Loan Ass’n, 208 USPQ 406,
411 (N.D. Ga. 1978), the court found that the plaintiff’s registered SAVINGS SHOP mark for
savings and loan services was “an uncommon term which requires some imagination or
thought to reach the conclusion that it describes booths in shopping malls that keep
unusually long hours.” In the context of the relevant goods, FRIJOLI CHIPS does not share
the characteristics of these marks.
19 September 8, 2016 Office Actions at 3.
Serial Nos. 87039617 and 87057223 (Consolidated)
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We turn next to the issue of whether Applicant’s mark conveys that its goods
contain beans. Because the mark comprises two words, we are “required to examine
the meaning of each component individually, and then determine whether the mark
as is whole is merely descriptive.” DuoProSS, 103 USPQ2d at 1758. If the words
FRIJOLI and CHIPS are individually descriptive of the goods, we must determine
whether their combination “‘conveys any distinctive source-identifying impression
contrary to the descriptiveness of the individual parts.’” Fat Boys, 118 USPQ2d at
1515-16 (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370,
1372 (Fed. Cir. 2003)). If each word instead “retains its merely descriptive
significance in relation to the goods, the combination results in a composite that is
itself merely descriptive.” Fat Boys, 118 USPQ2d at 1516 (citing In re Tower Tech.,
Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002)); see also Mecca Grade Growers, 125
USPQ2d at 1953-55.
The second word in Applicant’s mark, CHIPS, has little or no ability to identify
source when used in connection with cereal based snack foods. A “chip” is a “thin,
usually fried slice of food” and a “very small piece of food.”20 The plural word CHIPS
is thus clearly descriptive of, if not generic for, cereal based snack food, and Applicant
voluntarily disclaimed its exclusive use.21 The key issue is thus the significance of the

20 September 8, 2016 Office Actions at 9 (THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE). Applicant argues that the “evidence shows that the term ‘CHIPS’ has
several meanings and/or connotations,” 4 TTABVUE 17, but does not point to any other
meanings, or show that the meanings made of record by the Examining Attorney are not
descriptive of the goods.
21 March 8, 2017 Responses to Office Action at 1.
Serial Nos. 87039617 and 87057223 (Consolidated)
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word FRIJOLI, which modifies the noun CHIPS in Applicant’s mark. We summarize
below the Examining Attorney’s and Applicant’s arguments on that issue.
The Examining Attorney’s primary argument is that FRIJOLI is “a fanciful
misspelling of the term FRIJOLE, which identifies ‘a bean cultivated and used for
food,’” 6 TTABVUE 5, and that the “phonetic equivalence of the applicant’s term to
the descriptive wording FRIJOLE, along with the strong visual similarities between
the terms, makes it likely that consumers will perceived the term FRIJOLI as
identifying a feature, characteristic, and ingredient of the applicant’s goods,” id.,
namely that they contain beans. She contends that the “overall effect of the mark and
[Applicant’s] packaging is to communicate information about the goods to
consumers,” id. at 6, and that “the combination of the terms [FRIJOLI and CHIPS]
immediately describes a snack item in the nature of a chip made with or flavored by
frijole beans.” Id.22
Applicant responds that FRIJOLI “is not merely a misspelling of ‘frijol’ and/or
‘frijole’ [because] the use of the ‘I’ gives the mark a distinct appearance,” 4 TTABVUE
13, and that “there is no evidence that consumers will perceive [Applicant’s] mark as
equivalent to the term ‘frijole.’” Id. at 13-14. In its reply brief, Applicant argues that
the presence of the letter “I” in the word FRIJOLI causes the pronunciation “of the
term ‘FRIJOLI’ [to] differ materially from the pronunciation of the term ‘FRIJOLE,’”
7 TTABVUE 3, in both English and Spanish. Id. at 5-6.

22 The Examining Attorney also responds to several of Applicant’s arguments, 6 TTABVUE
7-9, which we discuss below.
Serial Nos. 87039617 and 87057223 (Consolidated)
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According to Applicant,
The term “FRIJOLI” . . . is totally unknown in the
language in the context in which it is used. Appellant’s
mark and identified goods target nostalgic Hispanic and
Latin-American consumers in search of a product that
takes them to their homeland, namely, Central American
countries; that is, a non-English speaking community who
will easily distinguish the term “FRIJOLI.” Therefore, the
real meaning and connotation of the mark at hand is far
distant from the meanings the terms “frijol” and/or “frijole”
may have . . . .
Id. at 15-16.
Applicant further argues that
[I]t is clear that the term “FRIJOLI” without more does
not allow consumers to automatically determine the nature
of the goods at hand, because it does not have any meaning
in the English or Spanish language. . . . There is no
immediate mental leap from between the terms “FRIJOLI”
and/or “frijole” and “Baking powder; bread; cakes; cocoa;
coffee substitutes; flour; honey; ice; ice cream; molasses
syrup; mustard; pastry; pepper; preparations made from
cereals, namely, cereal bars, processed cereals, wheat-based
snack foods, cereal based snack food; rice; sago; salt; sauces;
spices; sugar; tapioca; tarts; tea; vinegar; yeast.” Therefore,
it is evident that when consumers hear or read the terms
that compose the applied-for mark, they can think of
different of things, not necessarily the goods at hand.
Accordingly, the consumer would have to ‘follow a
multi-stage reasoning process’ to identity [sic] the
goods associated with the “FRIJOLI CHIPS”
trademark.
Id. at 17. In its reply brief, Applicant argues that “the term ‘FRIJOLI’, and [the]
trademark as a whole, require imagination to deduct [sic] the nature of the specific
goods to be provided by Applicant, and consumers need to carry out a mental leap to
figure out what the applied-for trademark is referring to.” 7 TTABVUE 3.
Serial Nos. 87039617 and 87057223 (Consolidated)
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Finally, Applicant claims that FRIJOLI “is not frequently used as a misspelling
for the word ‘frijole,’” 4 TTABVUE 15, that its competitors have no need to use
FRIJOLI to describe their products, and that the record is devoid of evidence of third-
party use or registration of marks containing the word FRIJOLI. Id. at 18.
Before turning to an analysis of the meaning of the word FRIJOLI in Applicant’s
mark, we must address several of Applicant’s arguments because they misconstrue
the test for mere descriptiveness under Federal Circuit law.23 Applicant’s arguments
that “the term ‘FRIJOLI’, and trademark as a whole, require imagination to deduct
[sic] the nature of the specific goods to be provided by Applicant, and consumers need
to carry out a mental leap to figure out what the applied-for trademark is referring
to,” 7 TTABVUE 3, involve the wrong inquiry. “[T]he question is not whether someone
presented only with the mark could guess the goods . . . listed in the identification.
Rather, the question is whether someone who knows what the goods and services are
will understand the mark to convey information about them.” Mecca Grade Growers,
125 USPQ2d at 1953 (citing DuoProSS, 103 USPQ2d at 1757). We must determine
whether a consumer who knows that the goods are cereal based snack foods flavored
with beans will understand the mark FRIJOLI CHIPS to convey information about
them, not whether a consumer can determine, from the mark alone, that Applicant is
selling the particular goods identified in its applications.

23 Applicant cites numerous decisions from federal district courts and regional circuit courts
of appeal in its discussion of the law of descriptiveness. 4 TTABVUE 4-5, 9-11. These
decisions are of little aid to us because we must apply the law set forth by our primary
reviewing court. See N.C. Lottery, 123 USPQ2d at 1710 (cases from regional circuits do not
bind the Federal Circuit); Grand Canyon West Ranch LLC v. Hualapai Tribe, 88 USPQ2d
1501, 1506 n.2 (TTAB 2008).
Serial Nos. 87039617 and 87057223 (Consolidated)
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Applicant’s arguments regarding the absence of competitive need to use FRIJOLI,
and the absence of evidence of its use by others, are similarly inapposite. “[T]here is
no requirement that the Examining Attorney prove that others have used the mark
at issue or that they need to use it,” and the “fact that Applicant may be the first or
only user of [FRIJOLI CHIPS] does not render that term distinctive, if it otherwise
meets the standard [for descriptiveness] set forth in In re Gyulay, In re Chamber of
Commerce, and DuoProSS.” Fat Boys, 118 USPQ2d 1514.
Finally, we reject Applicant’s suggestion that we must assess the meaning of the
applied-for mark exclusively or primarily from the standpoint of a “non-English
speaking community who will easily distinguish the term ‘FRIJOLI’” from
FRIJOLE. 4 TTABVUE 15. The record shows that “frijole” is a word in English as
well as in Spanish.24 While Applicant’s target customers may be Spanish-speaking
“nostalgic Hispanic and Latin-American consumers,” there is nothing in Applicant’s
identifications of goods limiting Applicant’s customers to Spanish speakers and its
website describes its FRIJOLI CHIPS product in English.25 We must assess the
possible descriptiveness of FRIJOLI CHIPS from the standpoint of all United States
consumers of cereal based snack foods, a group that includes a large number of
consumers who speak Spanish,26 but a much larger number who do not speak Spanish

24 September 8, 2016 Office Actions at 9 (THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE).
25 Id. at 3.
26 We recently noted that the 2012 U.S. Census Report stated that over 38 million people in
the United States spoke Spanish at home in 2012. In re Highlights for Children, Inc., 118
USPQ2d 1268, 1271 n.7 (TTAB 2016).
Serial Nos. 87039617 and 87057223 (Consolidated)
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and who may only know certain Spanish words, such as “frijole,” that have become
part of the American English vernacular.
It is well established that a novel spelling or misspelling of a merely descriptive
word or term is also merely descriptive if consumers would perceive the different
spelling as the equivalent of the descriptive word or term. See, e.g., Calphalon, 122
USPQ2d at 1164 (holding that SHARPIN, the phonetic equivalent of “sharpen,” was
merely descriptive of knife blocks with built-in sharpeners); In re Carlson, 91
USPQ2d 1198, 1203 (TTAB 2009) (holding that URBANHOUZING would be
perceived by consumers as the equivalent of the descriptive term “urban housing”).
Applicant effectively concedes that if the word FRIJOLE were used in a mark for
cereal based snack foods, it would communicate that those “goods may include
‘beans,’” 4 TTABVUE 13,27 but disputes that the word FRIJOLI in Applicant’s mark
will be perceived as the equivalent of the word FRIJOLE.
For Applicant, the fact that the words FRIJOLI and FRIJOLE do not have the
same final letter makes all the difference: “[T]he use of the ‘I’ gives the mark a distinct
appearance,” 4 TTABVUE 13, and “the term ‘frijole’ has a specific pronunciation, that
is, ‘frē-hō-lĕ, lā; whereas, the applied-for trademark is pronounced as ‘frē-hō-lē’. As
such, the term ‘frijole’ and ‘FRIJOLI’ are not phonetic equivalents.” Id. at 14.28

27 The Examining Attorney made of record evidence that beans have been identified by others
as an ingredient in chips, September 8, 2016 Office Actions at 4; March 30, 2017 Office
Actions at 2, as well as one instance of the use of the term “frijole chip” to identify a particular
food. September 8, 2016 Office Actions at 5.
28 Applicant devotes much of its argument to the issue of the phonetic equivalence of FRIJOLI
and FRIJOLE. 4 TTABVUE 11-12, 14, 16; 7 TTABVUE 3, 5-6. That is, of course, only one
element of whether FRIJOLI would be viewed as a misspelling of FRIJOLE.
Serial Nos. 87039617 and 87057223 (Consolidated)
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According to Applicant, “through the use of the ‘I’ in the end of the term ‘FRIJOLI’,
the trademark conveys a distinctive and captivating visual and phonetic impression
to consumers.” Id. at 15.
These arguments place more weight on the final letter in the word FRIJOLI than
it can reasonably bear. Just as we must consider the applied-for mark in its entirety
in assessing descriptiveness, DuoProSS, 103 USPQ2d at 1758, we must consider the
word FRIJOLI in its entirety in assessing whether it would be perceived as a
misspelling of FRIJOLE when it appears in Applicant’s mark. The word FRIJOLI has
the identical first six letters F-R-I-J-O-L as the word FRIJOLE, and the record shows
that FRIJOL is a form of the word FRIJOLE in both English and Spanish.29 Even if,
as Applicant claims, a Spanish speaker would “easily distinguish the term
‘FRIJOLI’” from the word FRIJOLE, 4 TTABVUE 15, and would not hear FRIJOLI
as the phonetic equivalent of FRIJOLE given the different pronunciation of the
vowels “i” and “e” in Spanish, id. at 14, it is likely that he or she would nevertheless
perceive FRIJOLI as a misspelling of FRIJOLE, not “a fanciful term.” Id. at 15.30 This

29 September 8, 2016 Office Actions at 9 (THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE); March 8, 2017 Responses to Office Actions at 17-22 (DICCINARIO DE LA
LENGUA ESPAÑOLA of the Real Academia Española).
30 Applicant argues that “the instant case is akin to” In re Supre, Inc., 2002 WL 1359369
(Serial No. 78016669) (TTAB June 20, 2002). 4 TTABVUE 11-12. We are, of course, not bound
by non-precedential decisions, In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d
1593, 1596 n.6 (TTAB 2014), but Supre is inapposite in any event. In that case, the Board
reversed a refusal under Section 2(e)(1) to register HEMPZ for “skin care preparations,
namely, non-medicated indoor and outdoor tanning preparations and moisturizers” because
even though the word “HEMP” was descriptive of the goods, it did not have a plural form and
the mark HEMPZ thus was not the phonetic equivalent of the plural form of HEMP. The
Board found that while HEMPZ would suggest the word “hemp,” and would lead consumers
to conclude that the products contain hemp, “the appearance of the letter Z changes the
appearance, pronunciation and commercial impression of the first four letters H-E-M-P
Serial Nos. 87039617 and 87057223 (Consolidated)
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is especially likely in “the context in which the mark is used,” Chamber of Commerce,
102 USPQ2d at 1219, which involves the use of packaging displaying the mark
together with the language “con Frijoles” and an anthropomorphized bean:

See N.C. Lottery, 123 USPQ2d at 1710 (in light of text on applicant’s specimen
explaining that its lottery goods and services were offered on the first Tuesday of each
month, “a consumer would immediately understand the intended meaning of FIRST
TUESDAY”). The Spanish-language “explanatory text accompanying the mark . . . is
not complicated,” id., and it reinforces that FRIJOLI is a misspelling of FRIJOLE,
and that the FRIJOLI CHIPS mark, as a whole, conveys that the chips contain beans.

sufficiently that the mark HEMPZ would not be viewed as HEMP per se.” 2002 WL 1359369,
*3. The presence of the letter “I” at the end of FRIJOLI does not have a similar effect on the
way in which the preceding six letters F-R-I-J-O-L would be viewed.
Serial Nos. 87039617 and 87057223 (Consolidated)
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The perception that FRIJOLI is a misspelling of FRIJOLE is even more likely on
the part of non-Spanish speaking consumers. As discussed above, the words FRIJOLI
and FRIJOLE are very similar visually, and FRIJOLI could be viewed by a non-
Spanish speaking consumer as the actual word FRIJOLE that has been imported into
the English language from Spanish. In addition, “[t]here is no correct pronunciation
of a trademark that is not a recognized word,” StonCor Grp., Inc. v. Specialty
Coatings, Inc., 759 F.3d 1327, 111 USPQ2d 1649, 1651 (Fed. Cir. 2014), and a non-
Spanish speaking consumer, who lacks the understanding of the nuances of the
pronunciation of the Spanish vowels “i” and “e” arising from native or acquired
fluency in the language, could readily pronounce FRIJOLI in the same manner as
FRIJOLE. Finally, in the context of use of the applied-for mark, Applicant’s
packaging uses the word “frijoles,” the plural of the word “frijole,” and Applicant’s
website states in English that “Frijolichips” are a “[d]elicate combination of corn-
based chips with the one and only seasoning… the favorite one!,”31 which in context
is a reference to bean flavoring.
We find that both Spanish speaking and non-Spanish speaking consumers of
Applicant’s cereal-based snack foods are likely to view the word FRIJOLI in
Applicant’s mark as a misspelling of the descriptive word FRIJOLE. The combination
of the descriptive word FRIJOLI and the descriptive word CHIPS in the applied-for
mark does not convey “any distinctive source-identifying impression contrary to the
descriptiveness of the individual parts.” Fat Boys, 118 USPQ2d at 1515-16 (quotation

31 September 8, 2016 Office Actions at 3.
Serial Nos. 87039617 and 87057223 (Consolidated)
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omitted). Because each word “retains its merely descriptive significance in relation to
the goods, the combination results in a composite that is itself merely descriptive.”
Id.
We agree with the Examining Attorney that the “evidence of record, combined
with applicant’s statements about the goods, confirms that a consumer who knows
what the goods are will understand the terms FRIJOLI CHIPS to convey information
about them; that is, that they are ‘chips’ or ‘small pieces of food’ which contain or are
flavored with ‘frijoles,’ the equivalent of applicant’s fancifully-spelled FRIJOLI.” 6
TTABVUE 9.
Regarding the stylization of the mark shown in Application Serial No. 87039617,
as the Examining Attorney found, 6 TTABVUE 7, it does not create a commercial
impression separate and apart from the unregistrable components of the mark and,
as noted above, Applicant does not contend otherwise. See, e.g., In re Cordua Rests.,
Inc., 823 F.3d 594, 118 USPQ2d 1632, 1639-40 (Fed. Cir. 2016); In re Sadoru Grp.
Ltd., 105 USPQ2d 1484, 1485-90 (TTAB 2012).
Accordingly, the applied-for marks are merely descriptive of the goods, and are
ineligible for registration on the Principal Register in the absence of a showing of
acquired distinctiveness.
Decision: The refusals to register are affirmed as to the goods identified in the
applications as “cereal based snack food; preparations from cereals, namely, cereal
bars, processed cereals, wheat-based snack foods, cereal based snack food; spices;
pastry.” The applications will proceed to publication as to the remaining goods.