[co-author: Shana L. Olson, Student Associate]
In a recent (non-precedential) decision , the TTAB refused to register the mark MEAT CANDY as being merely descriptive of Applicant's restaurant services. To anyone who is not a meat connoisseur, a 2(e)(1) refusal seems to be a bit of a stretch – sure, MEAT is descriptive of a restaurant selling meat, but the entire mark MEAT CANDY?
During examination of the application, the Examining Attorney found the mark to be merely descriptive, based on numerous third-party uses of the term "meat candy" to describe cuts of meat cooked to the point of becoming caramelized – the TTAB outlined 12 such references in its opinion. The USPTO also found CANDY to be laudatory, because it "attributes quality or excellence to the goods," and is therefore automatically merely descriptive under 2(e)(1). The USPTO was not persuaded by Applicant's argument that MEAT CANDY was a "tongue in cheek reference to the desirability of certain meat products," given that CANDY can be used as a general reference to anything desirable, finding that the argument only further proved that the mark is laudatory.
On appeal, the Applicant again tried to assert that MEAT CANDY is merely suggestive, because a consumer must make too many mental steps to connect the term with the nature of the applied-for restaurant services. The TTAB must have been hungry, because in its opinion, it describes numerous additional third-party uses of "meat candy" to describe specific meat products: bacon-wrapped sausage, meat desserts (specifically, chocolate and caramel covered bacon and prosciutto ice cream), beef jerky, hamburgers, pork shanks, chicken, and beef ribs. The TTAB sustained the refusal to register on the grounds that the mark was both laudatory and merely descriptive of the services.
Apart from a desire to fire up the grill, there are two important takeaways from the MEAT CANDY case:
First, when selecting a mark, applicants should be aware of slang or street or “urban” definitions of terms that could be considered laudatory of the applied-for goods or services. Laudatory marks are unregistrable under 2(e)(1) absent a showing of secondary meaning.
Second, when searching a mark, applicants should consider slang and regional usage of terms, as language use can differ geographically. Someone in California seeking to register a mark may not know that the same term is commonly used as laudatory, or as slang relating to a particular good or service in Florida. A comprehensive trademark search should reveal any relevant meanings or usages of a potential mark .