Ralph S. Gray

Trademark Trial and Appeal Board

Apr 11, 2002

No. 75725201 (T.T.A.B. Apr. 11, 2002)

4/11/02 Paper No. 5
TEH/RC

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

Trademark Trial and Appeal Board
_________

In re Ralph S. Gray
________

Serial No. 75/725,201
________

James C. Wray, P.A. for Ralph S. Gray.

Karanendra S. Chhina, Trademark Examining Attorney, Law Office
101 (Jerry Price, Managing Attorney).
________

Before Wendel, Holtzman and Drost, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Ralph S. Gray (applicant) seeks to register HEMP BURGER
for goods which were amended to read "sandwiches," in
International Class 30.1
Registration has been finally refused on the ground that
the mark HEMP BURGER is merely descriptive within the meaning
of Section 2(e)(1) of the Trademark Act, 15 U.S.C. Section
1052(e)(1). The word “burger” has been disclaimed.

1 Application Serial No. 75/725,201, filed on July 2, 1999. The
application is based upon applicant's claim of a bona fide intention
to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/725201
2

Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested.
The Examining Attorney maintains that the wording HEMP
BURGER is merely descriptive of significant characteristics
of applicant’s sandwiches, namely, that the sandwiches are
burgers containing hemp as the primary ingredient, and
further, that the wording in the mark in fact describes a
type of sandwich, i.e., a “hemp burger.” In support of her
position, the Examining Attorney has relied on a dictionary
definition of “hemp” as “cannabis” and a definition of
“burger” meaning “sandwich with a nonbeef filling. Often
used in combination: a crab burger, a tofu burger.”2 The
Examining Attorney has also submitted numerous excerpts of
articles retrieved from the Nexis database referring to hemp
as an ingredient in various food products and “hemp burger”
as a type of sandwich. Representative examples of these
articles are reproduced below (emphasis added):

Hemp seeds have also found their way into energy bars and
peanut butter. Though not really enjoyable, we’d pick a
spoonful of green-hued hemp butter over a hemp burger any
day. The San Francisco Chronicle. (August 30, 2000).

Hemp is one of the most versatile products. … Chippi says
hemp is the most nutritionally complete plant food for

2 The American Heritage Dictionary of the English Language, Third
Edition (1992).
Ser No. 75/725201
3
human consumption, which is the key reason companies use
it in food products. The Denver Post. (October 20,
1999).

Since the sprouted chickpea falafel isn’t fried, it’s
sort of mushy, but it tastes perfectly good on its bed of
red cabbage and greens. Avoid the hemp burger, though.
Los Angeles Times. (September 29, 1999).

She met Almquist at a music festival. She was vending
hemp hot cakes and cookies; he was selling hemp burgers.
Denver Rocky Mountain News. (May 2, 1999).

You can order totally legal carrot cake made with hemp,
hemp burgers, and blueberry hemp smoothies. The Daily
News of Los Angeles. (December 21, 1998).

The Examining Attorney has also made of record a number
of excerpts of web sites from the Internet containing various
references to hemp burger and food products containing hemp.
Examples of these excerpts follow (emphasis added):

Products list HempWorld Hotel: hemp cheese, hemp burgers,
hemp muesli, hemp bread…. … Recipe: Heat vegetable oil in
a large saucepan until hot. Fry the onions until soft
then pour hemp burger mix and stir. Hempunion.karoo.net.

Fancy a hemp burger? Be careful report warns.
Friendlystranger.com.

Hempeh (sic) Veggie Burger. This is the original and
still the best hemp burger. Shop.store.yahoo.com.

Hempnut: This is the original and still the best hemp
burger available mix available! First introduced in 1994,
its (sic) smoked for your dining pleasure.
Johnnymarijuany.com

If they drug-test me, I won’t show up positive, will I?
One city firefighter inquired as he waited for his hemp
burger. Marijuananews.com
Ser No. 75/725201
4

Applicant, on the other hand, argues that even if the
individual components of its mark are descriptive, the mark as
a whole is “ambiguous and unclear” and as such is suggestive
of its goods. Relying on a dictionary definition of “hemp”
submitted with its appeal brief applicant contends that the
combination of HEMP and BURGER “is capable of different
meanings” and that HEMP BURGER is therefore, quoting In re
Colonial Store Incorporated, 394 F.2d 549, 157 USPQ 382 (CCPA
1982), “bizarre and incongruous” in relation to the identified
goods. In particular, applicant claims that the word “hemp”
has a number of different definitions (including a meaning of
a “…tough…fiber that is used for making cloth, floor covering
and cordage”) none of which, according to applicant, suggest
any type of food product.3 Further, according to applicant,
nothing in the record suggests that others in the relevant
field have used or need to use HEMP BURGER to describe their
goods. In addition, applicant has questioned the persuasive
value of the Nexis and Internet evidence based on its view
that such evidence is hearsay.

3 The Board may take judicial notice of dictionary definitions.
University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983). We note, however, that applicant did not submit the
relevant pages from the dictionary and that the only definition
provided is the one indicated above.
Ser No. 75/725201
5
It is well settled that a term is considered to be
merely descriptive within the meaning of Section 2(e)(1)
of the Trademark Act, if it immediately conveys knowledge of
the ingredients, qualities, or characteristics of the goods
or services with which it is used, or is intended to be used.
See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir.
1987); and In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978). Moreover, the question of
whether a particular term is merely descriptive must be
determined not in the abstract, but in relation to the goods
or services for which registration is sought. See In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986).

The evidence in this case is strongly persuasive that the
term HEMP BURGER when applied to applicant’s goods,
immediately and without conjecture, describes the primary
ingredient of applicant’s sandwiches as well as the type of
sandwiches. It can be seen from the Nexis and Internet
references made of record by the Examining Attorney that hemp
is frequently used as an ingredient in a variety of food
products including burgers, and that the word “hemp” is
typically combined with the generic names of food products to
identify the main ingredient of that product, as in, for

Ser No. 75/725201
6
example “hemp cheese” or “hemp bread” or “hemp burger.” We
also note that applicant had originally identified its goods
as “hemp burgers…that look like regular burgers, made from
hemp seed flour.” Moreover, the dictionary entry submitted
by the Examining Attorney shows that the word “burger” is
often used in combination with its primary ingredient, for
example, tofu or crab, to identify the type of burger as a
“tofu burger” or a “crab burger.” The Nexis and Internet
materials also make it clear that the term “hemp burger”
refers to a particular type of burger and that, contrary to
applicant’s claim, competitors who are producing or selling
burgers made from or with hemp will need to use that term to
describe their own goods.
It is true that hemp has other dictionary meanings such
as the definition supplied by applicant of a tough fiber used
for making cordage. However, as indicated earlier in this
decision, the question of descriptiveness must be determined,
not in the abstract, but in relation to the identified goods.
Notwithstanding the absence of a dictionary definition of
“hemp” as an ingredient of food, the Nexis and Internet
evidence of record clearly demonstrates that “hemp” is
commonly used as a food product and more particularly as an
Ser No. 75/725201
7
ingredient of other food products.4 Thus, the only plausible
meaning of “hemp burger” in relation to applicant’s burgers
is a type of edible sandwich made with hemp, as opposed to a
type of sandwich made out of cordage or fiber.
Unlike the mark SUGAR & SPICE in the case In re Colonial
Store Incorporated, supra, on which applicant relies, it can
be seen from the foregoing that the combination of the words
“hemp” and “burger” does not create a new nondescriptive term
which is “unique and catchy” or for which the meaning is
unclear. Instead, purchasers of applicant’s goods would,
without any guesswork or the exercise of any imagination,
immediately understand that applicant’s product is a sandwich
made of or containing hemp, or a type of sandwich known as a
“hemp burger.”
Decision: The refusal to register is affirmed.

4 Evidence of the public’s understanding of the term may be obtained
from any competent source, such as consumer surveys, dictionaries,
newspapers and other publications. In re Northland Aluminum Product,
Inc., 221 USPQ 1110 (TTAB 1984), aff’d, 777 F.2d 1556, 227 USPQ 961
(Fed. Cir. 1985). Contrary to applicant’s claim, the stories
attached by the Examining Attorney are not presented for the truth of
the matter asserted therein but rather to show the context of the use
of the term. The use of a term in a descriptive or generic manner in
a variety of general circulation newspapers is a strong indication
that the general public views the term as a descriptive or generic
term for the particular goods. See, for example, In re Audio Book
Club Inc., 52 USPQ2d 1042 (TTAB 1999).