RYW Enterprises, LLC

Trademark Trial and Appeal Board

Nov 27, 2012

No. 85260850 (T.T.A.B. Nov. 27, 2012)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
November 27, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re RYW Enterprises, LLC
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Serial No. 85260850
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Adam J. Bruno of Bay State IP, LLC for RYW Enterprises, LLC

Simon Teng, Trademark Examining Attorney, Law Office 105 (Thomas G. Howell,
Managing Attorney).
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Before Rogers, Chief Administrative Trademark Judge, and Wellington and
Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
RYW Enterprises, LLC (applicant) filed an application to register the mark
CRAB RANGOON for “foods” in Class 30.1
The examining attorney refused registration pursuant to Section 2(e)(1) of
the Trademark Act of 1946, 15 U.S.C. §1052(e)(1), on the ground that applicant’s
mark is merely descriptive.

1 Application Serial No. 85260850, filed March 8, 2011.

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The examining attorney also required amendment of the identification of
goods on the ground that it was indefinite. During prosecution, applicant amended
the identification of goods to “prepared deep-fried dumplings consisting primarily of
crab, cheese and vegetables in a flour wrap” in Class 29. On August 1, 2011,
applicant submitted an Amendment to Allege Use asserting use of the mark since
January 1, 1981. The specimen submitted was identified as a copy of “a restaurant
menu illustrating [the] trademark in use with goods for sale at [the] point of
purchase.” Amendment to Allege Use dated August 1, 2011.
Both the amendment to the goods and the Amendment to Allege Use were
accepted by the examining attorney in the Office action dated January 31, 2012.
However, the refusal of registration under Section 2(e)(1) was made final by that
Office action. Applicant has appealed the refusal.
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(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 AG, 488 F.3d
960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007), citing In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987). 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 would have to the average
purchaser of the goods or services because of the manner of its use; that a term may
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have other meanings in different contexts is not controlling. Id., citing In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
To determine whether a mark is merely descriptive within the meaning of
Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), the burden is on the
United States Patent and Trademark Office to make a prima facie showing that the
mark or word in question is merely descriptive from the vantage point of purchasers
of an applicant's goods. See: In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d
1087, 1090 (Fed. Cir. 2005), citing In re Abcor Development; see also, In re Merrill
Lynch, Pierce, Fenner, and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1144 (Fed.
Cir. 1987). As established below, the examining attorney introduced persuasive
evidence and on the basis thereof, the Office has met this burden.
The evidence made of record in the Office action dated June 8, 2011 consisted
of more than 20 definitions, articles, blogs and menus referencing “crab rangoon,”
examples of which include:
1. Wikipedia entry for “Crab Rangoon,” which states that “Crab
Rangoon has been on the menu of the “Polynesian-style restaurant
Trader Vic’s in San Francisco since at least 1957”;

2. About.com entry on Chinese Food, which includes a recipe for
Crab Rangoon and credits the creation of the dish to Trader Vic;

3. Food.com website, which includes recipes for Crab Rangoon and
blogs regarding said recipes;

4. flickr from Yahoo, which includes a listing for a room service
menu from “dana overnight” on which crab Rangoon is offered;

5. CulinaryCory.com website, which includes a recipe for crab
Rangoon, information about the dish, and a blog on the same subject;
and
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6. MenuPages.com website, which includes menus from Asian-
fusion restaurants in Brooklyn and Manhattan featuring Crab
Rangoon. The restaurants on the site include: Red House, A+ Thai,
Asian Bistro, Asian Fusion, Beijing Wok, China Garden and Lantern
Thai.

In the final Office action, the examining attorney introduced approximately
15 additional articles from Lexis-Nexis, all of which included references to “Crab
Rangoon.”
Applicant submitted the results pages from a GOOGLE search for “Rangoon,”
which was conducted on July 14, 2011. These pages were submitted to establish
that Rangoon is a geographical location in Myanmar (formerly Burma). The two
pages of search results establish that Rangoon is a region in Myanmar, however,
the results also included three websites referring to “Crab Rangoon” and one
website relating to Rangoon Burmese Restaurant, located in Philadelphia,
Pennsylvania.
Applicant also introduced an undated web article from “Chowhound.com,”
entitled “Minneapolis – are there any crab Rangoons in this town?”2 The term “crab
rangoons” is used generically in this article to refer to a type of food.3

2 The article states in part: “There seems to be an invisible line (maybe the Mississippi?)
that separates crab rangoon from fried wonton country.
Crab rangoons are not about the crab…..
Can anyone tell me where to get classic crab rangoons around here?”
3 The Google search results and the Chowhound.com article were also attached to
applicant’s Appeal Brief, which was unnecessary, since they had previously been made of
record during prosecution. “The record in the application should be complete prior to the
filing of an appeal. The Trademark Trial and Appeal Board will ordinarily not consider
additional evidence filed with the Board…after the appeal is filed.” 37 CFR §2.142(d). The
applicant is cautioned that no evidence should be affixed to an appeal brief filed with the
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Other evidence introduced by applicant consisted of a search on the website
“cooks.com” for “crab cheese puffs” (the search was conducted on July 18, 2011 and
does not contain any reference to “Crab Rangoon”) and a copy of a takeout menu
from Yangtze Szechuan Restaurant listing Crab Rangoons as one of the appetizers.4
While not making them of record, applicant refers to a number of third party
registrations in its July 18, 2011 and January 30, 2012 responses to Office actions.
The examining attorney advised applicant both in the July 29, 2011 Office action
and the January 31, 2012 final Office action that third party registrations may not
be made of record by merely listing them in response to an Office action.
“It is well-established that in order to make third-party registrations properly
of record, ‘applicant should submit copies of the registrations themselves, or the
electronic equivalent thereof’ from the USPTO’s electronic databases....” TBMP §
1207.03 referring to In re City of Houston, 101 USPQ2d 1534, 1536 n.5 (TTAB 2012)
(quoting In re Broadway Chicken Inc., 38 USPQ2d 1559, 1560 n.6 (TTAB 1996)
(citing In re Smith and Mehaffey, 31 USPQ2d 1531 (TTAB 1994)), (evidentiary
submissions “should be made prior to appeal or, if after appeal, pursuant to a

Board. Any such evidence is either untimely, or redundant because it was previously made
of record.

4 This take-out menu was later submitted by the applicant as a specimen of use in its
application. Interestingly, there is no indication on the menu that “Crab Rangoon” is a
trademark. In fact, the goods referred to as “Crab Rangoons” are appetizers that are listed
after “Boneless Spareribs, Chicken Gold Fingers, Chicken Teriyaki, and Beef Teriyaki”; and
before “Fried Jumbo Shrimp, Fried Wontons, Cantonese Dumplings and Peking
Dumplings,” all of which appear in the menu to be used as generic terms.
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remand of the matter to the examining attorney for further examination.
Trademark Rule 2.142(d).”).
Since the registrations referred to by the applicant are not of record, we did
not consider any arguments related thereto. Moreover, while applicant argues in its
brief that the refusal of its asserted mark is inconsistent with the registration of
other marks, and cites to the Federal Circuit’s decision in In re Nett Designs, 236
F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001), as support for its position, applicant
chooses to emphasize only a portion of that decision. We note that the instruction
from the Federal Circuit is that “the PTO’s allowance of such prior registrations
does not bind the Board or this court” and “the Board (and this court in its limited
review) must assess each mark on the record of public perception submitted with
the application.” Id. at 1566.
While applicant acknowledges that the refusal issued was a descriptiveness
refusal pursuant to Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1) and
that the examining attorney merely advised applicant that its mark could be
considered generic, more than half of applicant’s Appeal Brief is devoted to refuting
a genericness refusal. These arguments are not applicable to this decision and thus
have not been considered.
Applicant argues that its mark is not merely descriptive because the “focal
point of the mark, ‘rangoon’, is a non-English term with no connection to the goods
of applicant’s mark …” Appeal Brief at p. 4. To the contrary, the evidence supports
a holding that “crab rangoon” is viewed as a single term for applicant’s goods (“deep-
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fried dumplings consisting primarily of crab, cheese, and vegetables in a flour
wrap”), and those of others. Thus, whatever significance “Rangoon” might have on
its own, when used in conjunction with “crab,” the descriptive significance for
prospective purchasers is clear.
Accordingly, we find the record to include substantial evidence that the term
CRAB RANGOON is merely descriptive of deep-fried dumplings consisting
primarily of crab, cheese, and vegetables in a flour wrap.
Decision: The refusal to register is affirmed.