Think, LLCDownload PDFTrademark Trial and Appeal BoardSep 23, 2011No. 77774652 (T.T.A.B. Sep. 23, 2011) Copy Citation Mailed: September 23, 2011 Bucher UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Think, LLC ________ Serial No. 77774652 _______ Peter Loffler for Think, LLC. Vivian Micznik First, Trademark Examining Attorney, Law Office 114 (K. Margaret Le, Managing Attorney). _______ Before Bucher, Mermelstein and Shaw, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: Think, LLC seeks registration on the Principal Register of the mark TheMenuMag (in standard character format) for goods identified as “magazines featuring restaurant menus” in International Class 16.1 The Trademark Examining Attorney refused registration on the ground that the term is merely descriptive under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). 1 Application Serial No. 77774652 was filed on July 6, 2009, based upon applicant’s allegation of a bona fide intention to use the mark in commerce. THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77774652 - 2 - After the Trademark Examining Attorney made the refusal final, applicant appealed to this Board. We affirm the refusal to register. Issue on Appeal The sole issue on appeal in this case is whether applicant’s proposed mark, TheMenuMag, merely describes a function, feature or characteristic of the goods identified in the involved application. Arguments of Applicant and the Trademark Examining Attorney Applicant sets forth several arguments in support of its position that the term TheMenuMag is not merely descriptive of the identified goods. Applicant argues that while the term “mag” may be an informal or slang term for “magazine,” it requires additional thought or cogitation as consumers may think of something else, like MAG-LITE flashlights, for example. And while not conceding that the term “mag” is merely descriptive, applicant argues in the alternative that the three components of its proposed mark, as combined, evoke a new and unique commercial impression. Finally, applicant argues that inasmuch as these magazines are free publications, potential consumers will not invest Serial No. 77774652 - 3 - the time necessary to decipher the informative nature of the term. By contrast, the Trademark Examining Attorney contends that the word “Menu” clearly describes the content of applicant’s magazine, namely, restaurant menus; that the word “Mag” is an abbreviation for “magazine”; that although applicant’s proposed mark (TheMenuMag) is compressed into a single letter-string, it is the phonetic equivalent of “The Menu Mag” (with spaces); and that applicant has failed to put forward any alternate, non-descriptive interpretation for this combination of words. Analysis It is well settled that a term is considered to be merely descriptive of goods and/or services, within the meaning of Section 2(e)(1) of the Trademark Act, if it immediately describes an ingredient, quality, feature or characteristic thereof or if it directly conveys information regarding the nature, function, purpose or use of the goods and/or services. See In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978) [GASBADGE is merely descriptive of a device to monitor exposure to gaseous pollutants]. Serial No. 77774652 - 4 - As to the leading word “The,” we agree with the Trademark Examining Attorney that this definite article has no source-indicating potential: The term “the” is not distinctive and does not add any source-identifying significance. See, e.g., In re The Place, Inc., 76 USPQ2d 1467, 1468 (TTAB 2005) (holding THE GREATEST BAR merely descriptive for restaurant and bar services); In re Weather Channel, Inc., 229 USPQ 854, 856 (TTAB 1985) (holding THE WEATHER CHANNEL merely descriptive for weather information services and television programming relating to weather); In re The Computer Store, Inc., 211 USPQ 72, 74-75 (TTAB 1981) (holding THE COMPUTER STORE merely descriptive for retail outlets featuring computers). Turning to the evidence made of record by the Trademark Examining Attorney, we find that the term “mag” is widely listed as an informal or slang shorthand for “magazine.”2 Moreover, the Trademark Examining Attorney demonstrated from various online sources that “Menu Magazine” is a quite logical designation used by others to denote a periodic magazine having menus of the local restaurants: 3 2 MS ENCARTA entry with Trademark Examining Attorney’s initial Office action. See also WEBSTER’S NEW WORLD COLLEGE DICTIONARY reported at http://www.yourdictionary.com/mag, http://oxforddictionaries.com/search?searchType=dictionary&isWritersAndEditors =true&searchUri=All&q=mag&_searchBtn=Search&contentVersion=UShttp://dictionary .reference.com/browse/mag, http://www.merriam-webster.com/dictionary/mag, and http://dictionary.cambridge.org/dictionary/business-english/mag?q=mag. 3 http://www.indianagazette.com/menu_magazine/, as accessed by the Trademark Examining Attorney on May 21, 2010. Serial No. 77774652 - 5 - Home of Kauai Menu Magazine Aloha and welcome to the home of Kauai Menu Magazine … Kauai Menu Magazine is printed tri-annually and are [sic] circulated throughout the island of Kauai. All issues are complimentary. However, if you would like to receive Menu Magazine at home, you may subscribe to us… 4 Applicant is correct in arguing that a hypothetical composite term may become a distinguishing mark even though its component parts individually cannot. However, that is not the case herein. We find that when these words are combined, they are not incongruous, and applicant has failed to suggest any non-descriptive meaning that prospective consumers might ascribe to the proposed mark other than their common dictionary meanings. In short, prospective diners (in the panhandle of Florida or elsewhere) will understand immediately – without cogitation, study or a sense of incongruity – that TheMenuMag conveys information about a magazine having restaurant menus. Decision: The refusal of the Trademark Examining Attorney to register TheMenuMag under Section 2(e)(1) of the Lanham Act is hereby affirmed. 4 http://www.kauaimenu.com/, as accessed by the Trademark Examining Attorney on May 21, 2010. Copy with citationCopy as parenthetical citation