Friendly Fruit, Inc.

Trademark Trial and Appeal Board

Oct 19, 2000

No. 75029843 (T.T.A.B. Oct. 19, 2000)

Paper No. 21
PTH
10/19/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Friendly Fruit, Inc.
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Serial No. 75/029,843
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Michael Greenbaum and Lisa N. Kaufman of Blank Rome Comisky
& McCauley LLP for Friendly Fruit, Inc.
Raul Cordova, Trademark Examining Attorney, Law Office 114
(Margaret Le, Managing Attorney).
_______
Before Simms, Hanak and Hairston, Administrative Trademark
Judges.
Opinion by Hairston, Administrative Trademark Judge:
Friendly Fruit, Inc. has appealed the final refusal of
the Trademark Examining Attorney to register THE GOURMET
OUTLET on the Supplemental Register for “retail food store
services and distribution services for food.”1 Registration
has been refused pursuant to Section 23 of the Trademark
Act on the ground that the term applicant seeks to register

1 Serial No. 75/029,843 filed on December 6, 1995, and asserting
first use and first use in commerce on December 6, 1995.
Applicant has disclaimed the word “Outlet” apart from the mark.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/029,843
2
is incapable of distinguishing applicant’s services from
those of others. In particular, the Examining Attorney
contends that THE GOURMET OUTLET is simply a generic name
for retail food store services.
Applicant and the Examining Attorney have filed appeal
briefs. An oral hearing was not requested.
Section 23 of the Trademark Act provides that a mark
is registrable on the Supplemental Register if it is
capable of distinguishing applicant’s goods or services.
Thus, the issue on appeal is whether THE GOURMET OUTLET is
capable of distinguishing applicant’s retail food store
services.
The Examining Attorney maintains that the term
“gourmet outlet” is the generic name for food specialty
stores, that the word “the” has no source indicating
function, and thus THE GOURMET OUTLET is incapable of
distinguishing applicant’s services. In support of his
position, the Examining Attorney made of record an excerpt
from Random House Word Menu (1992) wherein “gourmet” is
defined as “food for connoisseur with sophisticated
tastes.”
The Examining Attorney has also made of record the
results of his search of the NEXIS data base for references
to “gourmet outlet.” The search retrieved ninety-nine
Ser No. 75/029,843
3
excerpts of articles dated April 1982 through April 1999.
We note that twenty of the excerpts are not particularly
probative of the public’s understanding of the term
inasmuch as they from wire services or foreign
publications. Also, we should point out that thirteen of
the excerpts are references to applicant’s retail food
store services. The following are representative samples
of the excerpts:
There is even innovation: Safeway has
a growing number of successful discount
Liquor Barns and an experiment with
pricey gourmet outlets.
(Forbes, April 12, 1982);
“Customers are concerned we are closing the
store, but we have got to make a good
business decision,” McDermott said.
In its announcement, Publix did not set a
date for the gourmet outlet’s last day of
business.
(Orlando Sentinel Tribune, January 11,
1991);
You don’t have to send away in mail order for
dried cherries; you can get them here at
Williams-Sonoma in Tampa. Yes, and at other
fancy gourmet outlets . . .
(St. Petersburg Times, February 18, 1993);
While Unique Cuisine is no longer accepting
holiday orders, Bouanchaud notes that her
small, to-go gourmet outlet, Margo’s, located
in Goodwill Village, sells hand-painted
cookies . . .
(The Advocate, December 15, 1994);
Ser No. 75/029,843
4
Sold mostly through natural food stores
and gourmet outlets, the teas are made
from spring water . . .
(Beverage Industry, September 1, 1998);
Wainer is primarily a wholesale distributor
acting as middleman between food growers and
chefs. But about three years ago, he opened
part of his warehouse as the Gourmet Outlet,
a retail food store, where regular people
“can shop where the chefs shop.”
(The Providence Journal Bulletin, February 18,
1998); and
As a safe alternative, you can buy exotic
mushrooms. Supermarkets, such as Bread &
Circus, stock some varieties. The Gourmet
Outlet at Sid Wainer & Son Specialty
Produce in New Bedford, (800) 423-8333,
sells fresh wild mushrooms to restaurants
and the general public.
(The Providence Journal Bulletin,
October 15, 1997).
Applicant, in urging reversal of the refusal to
register, argues that THE GOURMET OUTLET is incongruous
because the primary meaning of “gourmet” is “a connoisseur
in eating and drinking” (Webster’s Third New International
Dictionary). According to applicant, if it were seeking to
register THE GOURMET FOOD OUTLET, the refusal to register
would be appropriate, but in the absence of the word
“FOOD”, THE GOURMET OUTLET makes no sense as used in
connection with applicant’s services.
Citing In re American Fertility Society, 51 USPQ2d
1832, 1834 (Fed. Cir. 1999), applicant argues that the
Examining Attorney has not shown that the whole phrase THE
Ser No. 75/029,843
5
GOURMET OUTLET is generic. Applicant contends that the
Examining Attorney has improperly dissected the mark into
THE and GOURMET OUTLET in an attempt to find that the
entire mark is generic. According to applicant, the public
recognizes the distinction between the descriptive words
“gourmet outlet” and applicant’s retail store services THE
GOURMET OUTLET.
Also, applicant argues that the NEXIS excerpts
submitted by the Examining Attorney which refer to
applicant’s THE GOURMET OUTLET retail food store services
demonstrate that the public associates THE GOURMET OUTLET
with applicant.
In this case, we are not persuaded by the evidence
submitted by the Examining Attorney that THE GOURMET OUTLET
is generic for retail food store services. While THE
GOURMET OUTLET is certainly descriptive of applicant’s
services, it nonetheless leaves something to the
imagination. This is not a case where the term “outlet” is
modified by a specific generic designation, such as wine
outlet or jeans outlet. As to the NEXIS excerpts, there
are only about seventy stories which refer to “gourmet
outlet(s)” over a seventeen-year period. This is a small
number for such a long period. Also, in a number of the
stories, “gourmet outlet” appears to be used in a
Ser No. 75/029,843
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descriptive, rather than generic manner. In short, the
evidence of record falls short of establishing that
“gourmet outlet,” and thus THE GOURMET OUTLET is the
generic name for a type of retail food store services.
Decision: The refusal to register is reversed.
R. L. Simms
E. W. Hanak
P. T. Hairston
Administrative Trademark Judges
Trademark Trial and Appeal Board
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