Embed Doc
Copy Link
Readcast
Collections

CommentGo Back

Download

03/30/01Paper No.10PTH

UNITED STATES PATENT AND TRADEMARK OFFICE

________

Trademark Trial and Appeal Board

________In reChi-Chi’s, Inc. ________Serial No. 75/537,251 _______Corrine M. FreemanofLyon & Lyon LLPforChi-Chi’s, Inc. Anna Erenburg, Trademark Examining Attorney, Law Office115(Tomas Vlcek, Managing Attorney). _______BeforeHairston,WendelandBottorff, Administrative Trademark Judges.Opinion byHairston, Administrative Trademark Judge:An application has been filed by Chi-Chi’s, Inc. toregister the term SALSAFICATION for “restaurant services.”

The Trademark Examining Attorney has refusedregistration under Sections 1, 2, 3 and 45 of the TrademarkAct on the ground that the term, as used on the specimensof record, fails to function as a mark for the identifiedservices.

Serial No. 75/537,251, filed August 14, 1998, alleging dates offirst use of March 1997.

THIS DISPOSITIONIS NOT CITABLE AS PRECEDENTOF THE T.T.A.B.

Ser No.

75/537,251

2When the refusal was made final, applicant appealed.Applicant and the Examining Attorney have filed briefs inthe case.

The specimens of record consist of applicant’s menu.Applicant maintains that the term SALSAFICATION functionsas a mark for its restaurant services because the term isunique and fanciful, which is in contrast to much of theother wording on the menu which is ordinary and/ordescriptive. In addition, applicant points out that theterm is used on the menu three times; once on the cover andtwice on an inner panel. Further, applicant argues that inaddition to the term SALSAFICATION, it uses othervariations of the word “salsa” on the menu, e.g. SALSAFYand SALSAFIED, and this will cause customers to identityall the variations, including SALSAFICATION, withapplicant.As noted by the Board in In re Remington Products,Inc., 3 USPQ2d 1714, 1725 (TTAB 1987):To be a mark, the term, or slogan, mustbe used in a manner calculated to project topurchasers or potential purchasers a singlesource of origin for the goods [or services]

Applicant, for the first time with its reply brief, submittedthe affidavit of its Senior Vice-President for Marketing alongwith several exhibits. Under Trademark Rule 2.142(d), evidencesubmitted for the first time with a brief on appeal is generallyconsidered untimely and therefore usually given no consideration.In view thereof, we have not considered this evidence in reachinga decision herein.

Ser No.

75/537,251

3in question. Mere intent that a term functionas a trademark [or service mark] is not enoughin and of itself, any more than attachment of thetrademark symbol would be, to make a term atrademark.A critical element in determining whethera term is a trademark is the impression theterm makes on the relevant public.In this case, we disagree with applicant that the termSALSAFICATION, as used on the menu, functions as a mark forapplicant’s restaurant services. On the menu cover, theterm is intermingled with various designs, e.g., a woman,cactus, and guitar, and such words as “fiesta” and “chips”.The term SALSAFICATION as well as the other words anddesigns are in yellow on a red background. The menu coverin reduced size is reproduced on the next page.