Out of the Frying Pan, Into Disclaimer

Harness IP

In In re Louisiana Fish Fry Products, Inc., [2013-1619], (August 14, 2015), the Federal Circuit affirmed the TTAB’s decision affirming the refusal of registration of LOUISIANA FISH FRY PRODUCTS BRING THE TASTE OF LOUISIANA HOME! without a disclaimer of FISH FRY PRODUCTS.  The Applicant argued that the term FISH FRY PRODUCTS was not generic, and had acquired secondary meaning during its thirty years of use.

The Federal Circuit found that substantial evidence supported the TTAB’s factual finding that applicant had not established that FISH FRY PRODUCTS had acquired distinctiveness.  The Federal Circuit said that for highly descriptive terms such as FISH FRY PRODUCTS the TTAB is within its discretion not to accept evidence of five years’ use as establishing acquired distinctiveness.  The Federal Circuit also agreed with the TTAB that evidence of use of LOUISIANA FISH FRY PRODUCTS did not necessarily establish that FISH FRY PRODUCTS had acquired distinctiveness.  The Federal Circuit agreed that the evidence did not establish that the specific term at issue, FISH FRY PRODUCTS, had acquired distinctiveness.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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