Salad Town, LLC

Trademark Trial and Appeal Board

Nov 21, 2016

No. 86414039 (T.T.A.B. Nov. 21, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 21, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Salad Town, LLC
_____

Serial Nos. 86414039 and 86414055
_____

H. Michael Drumm of Drumm Law LLC,
for Salad Town, LLC.
Colleen Mulcrone, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Taylor, Kuczma and Lynch,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Salad Town, LLC (“Applicant”) seeks registration on the Principal Register of the
marks THE SALAD STATION (in standard characters) and
(THE SALAD STATION and Design) both for:
Restaurant services in International Class 43.1

1 Application Serial Nos. 86414039 and 86414055 were filed on October 3, 2014, based upon
Applicant’s claim of first use anywhere and use in commerce of both marks since at least as
early as June 4, 2012. Application Serial No. 86414055 includes the following description:
“The mark consists of the word “THE” inside the top curve of a large “S” that stands tall
Serial Nos. 86414039 and 86414055

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The Trademark Examining Attorney refused registration of Applicant’s THE
SALAD STATION mark (Application Serial No. 86414039) under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the proposed mark is
merely descriptive and, as regards the THE SALAD STATION and Design mark
(Application Serial No. 86414055), required a disclaimer of the wording in the mark
pursuant to Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), because it is
merely descriptive of the identified services. After the refusals were made final,
Applicant timely appealed and filed Requests for Reconsideration which were denied.
The appeal is fully briefed. For the reasons set forth below, the refusals to register
are affirmed.
I. Consolidation of Appeals
We have considered the arguments and evidence filed in both cases. The applied-
for marks, refusals to register, as well as the records and the briefs, are very similar
and involve many of the identical factual and legal issues. Thus, the appeals are
therefore consolidated and addressed in this single opinion.
II. Grounds of Refusal
The issues in this appeal are: (1) whether the wording THE SALAD STATION is
merely descriptive of Applicant’s restaurant services under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1); and (2) if the wording THE SALAD STATION
is merely descriptive of Applicant’s services, whether a disclaimer under Sections

enough to begin the word “SALAD” and “STATION” with the “O” in “station” in the form of
a tomato.
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2(e)(1) and 6 of the Trademark Act, 15 U.S.C. §§ 1052(e)(1) and 1056(a), is required
for registration of THE SALAD STATION and Design mark.
A. Descriptiveness Under § 2(e)(1)
For a term to be merely descriptive within the meaning of § 2(e)(1), it is not
necessary that the term describe each feature of the goods or services, only that it
conveys a single, significant ingredient, quality, characteristic, feature, function,
purpose or use of the goods or services with which it is used. See, e.g., In re Chamber
of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In
re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987); In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978).
Registration of the marks THE SALAD STATION and THE SALAD STATION
and Design have been refused on the ground that the wording “The Salad Station” is
merely descriptive, in whole or in part, of the applied-for services. The Examining
Attorney relies on the definition of “salad station” as a term commonly used to
describe a restaurant feature, which is also known as a “salad bar,” consisting of a
self-service selection of various salad ingredients and toppings, allowing customers
to construct their own salad.2 Additionally, the Examining Attorney submitted
screenshots from thirteen third-party websites demonstrating that the term “salad

2 We grant the Examining Attorney’s request that we take judicial notice of the dictionary
definition of “salad bar” from the American Heritage Dictionary at https://www.ahdiction
ary.com/word/search.html?q=salad+bar. The TTAB may take judicial notice of dictionary
definitions that are the electronic equivalent of a print reference work. See Univ. of Notre
Dame du Lac v. J. C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983); In re Driven Innovations, Inc., 115 USPQ2d 1261, 1267
n.18 (TTAB 2015); see also, TBMP §§1208.03-1208.04 (2016).
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station” is commonly used to describe such a feature of a restaurant, including the
following uses from the Internet:
• The Barile’s Planet Pizza Family Restaurant: “Beat the heat with a tossed or
chopped salad from our awesome salad station!!”3
www.planetpizzanewburgh.com

• The menu and costs of Court Order Deli’s “salad station.”4
www.courtorderdeli.com

• The menu and costs of Garden Gourmet Delicatessen’s “Fresh Salad Station.”5
www.gardengourmet.net

• The menu and costs of Caviar’s “Salad Station.”6
www.trycaviar.com

• Sebastian’s restaurant website: “Did you know we have a Totally Vegan salad
station at our Summer Street! That’s right all the wonderful topping from our
salad station w/out all the dairy & meat products!”7
www.sebastians.com

• Blendz Fun Fresh Food: “At our Salad Station you can choose from an exciting
variety of toppings and dressings to satisfy your mood and taste buds.”8
www.blendz.com

• Aliano’s Express pizzeria: “Lighter fare is top quality too at our salad station.
As with our pizza entrees, Aliano’s salad ingredients are authentic.”9
www.alianosexpress.com

• Item on Minutello’s Restaurant & Lounge menu: “Calzone stuffed with
mozzarella, ricotta, tomato sauce, and two items from our salad station.”10
www.mintellosrestaurant.com

3 See non-final Office action dated January 30, 2015, at p. 7.
4 See non-final Office action dated January 30, 2015, at p. 8.
5 See non-final Office action dated January 30, 2015, at p. 9.
6 See non-final Office action dated January 30, 2015, at p. 10.
7 See final Office action dated September 27, 2015, at p. 9.
8 See final Office action dated September 27, 2015, at p. 12.
9 See final Office action dated September 27, 2015, at p. 13.
10 See final Office action dated September 27, 2015, at p. 14.
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• Chadwick’s brunch buffet menu, which includes a “Salad Station.”11
www.mychadwicks.com

• Chicago Prime Italian’s brunch buffet menu, which includes a “Salad
Station.”12 www.chicagoprimeitalian.com

• Henrietta’s Table brunch buffet menu, which includes a “Grilled vegetable and
salad station with weekly salad specials.”13 www.henriettastable.com

• Outer Banks Brewing Station’s menu, featuring a “Salad Station.”14
www.obbrewing.com

• The Warehouse Restaurant’s brunch buffet menu, which includes a “Salad
Station.”15 www.mdrwarehouse.com

Based on the foregoing evidence, consumers are accustomed to seeing the term “salad
station” used to describe a feature of a restaurant that provides a selection of various
salad ingredients and toppings, allowing customers to construct their own salad, i.e.,
a salad bar. Thus, the wording “salad station” merely describes a feature of a
restaurant.
Additionally, adding the term “THE” to a descriptive term such as “SALAD
STATION” does not add any source-indicating significance or otherwise affect the
term’s descriptiveness. See In re The Place Inc., 76 USPQ2d 1467, 1468 (TTAB 2005)
(holding THE GREATEST BAR merely descriptive of restaurant and bar services;
“the definite article THE . . . add[s] no source-indicating significance to the mark as

11 See denial of Request for Reconsideration dated April 11, 2016, at p. 4-5.
12 See denial of Request for Reconsideration dated April 11, 2016, at p. 7.
13 See denial of Request for Reconsideration dated April 11, 2016, at pg. 8.
14 See denial of Request for Reconsideration dated April 11, 2016, at pg. 10.
15 See denial of Request for Reconsideration dated April 11, 2016, at pg. 13.
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a whole”); Conde Nast Publ’ns Inc. v. Redbook Publ’g Co., 217 USPQ 356, 357 (TTAB
1983) (“[t]he fact that the slogan [THE MAGAZINE FOR YOUNG WOMEN] also
includes the article ‘The’ is insignificant. This word cannot serve as an indication of
origin, even if applicant’s magazine were the only magazine for young women.”); In
re The Computer Store, Inc., 211 USPQ 72, 74-75 (TTAB 1981) (holding THE
COMPUTER STORE merely descriptive of, and the common descriptive name for,
computer-related services).
A screenshot from Applicant’s website shows that a feature of Applicant’s services
is a salad bar:
Our Salad bar is prepared fresh daily with over 80 items to
choose from. … Our concept is a self-service Salad, Potato,
Soup and Beverage Bar.”16
Applicant argues that although its restaurant contains a salad bar, THE SALAD
STATION does not describe the restaurant in general, stating “according to the
meaning ascribed to it by the Examining Attorney, it would describe only the salad
bar within the restaurant, not the restaurant itself.”17 Applicant contends that the
salad bar within THE SALAD STATION restaurant is only one aspect of a full service
fast casual restaurant. Its restaurant also serves soups, baked potatoes, side dishes,
and beverages, and provides menu items “to go” which do not involve patrons utilizing
the salad bar within the restaurant.18

16 See 1/30/2015 Office Action pp. 2, 4.
17 Applicant’s Brief p. 3 (7 TTABVUE 6).
18 Applicant’s Brief p. 3 (7 TTABVUE 6) referring to Exhibit A to March 28, 2016 Request for
Reconsideration.
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A mark may be merely descriptive even if it does not describe the “full scope and
extent” of Applicant’s services. In re Oppedahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370, 1371 (Fed. Cir. 2004) (citing In re Dial-A-Mattress Operating Corp.,
240 F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)). As stated, it is enough that
the term describes only one significant function, attribute, or property of the services.
In re The Chamber of Commerce of the U.S., 102 USPQ2d at 1219; In re H.U.D.D.L.E.,
216 USPQ 216 USPQ 358, 359 (TTAB 1982); see also In re Oppedahl & Larson LLP,
71 USPQ2d at 1371. Therefore, the wording “The Salad Station” is merely descriptive
of Applicant’s restaurant services because, at the very least, it describes a significant
feature of Applicant’s restaurant services, even if Applicant also offers soups, spuds
and beverages in addition to a salad station.
Marks that consist of a featured food of a restaurant have been held to be merely
descriptive of the restaurant services provided by the restaurant. See beef & brew,
inc. v. Beef & Brew, Inc., 389 F.Supp. 179, 185 USPQ 531, 534 (D. Ore. 1974) (a name
that tells the diner what his dinner will be is descriptive; thus, previous BEEF &
BREW held merely descriptive of restaurant services of both parties); In re France
Croissant, Ltd., 1 USPQ2d 1238, 1239 (TTAB 1986) (holding LE CROISSANT SHOP
merely descriptive of an eating establishment where croissants are the principal
attraction, even though other items are available); In re Le Sorbet, Inc., 228 USPQ
27, 28 (TTAB 1985) (holding LE SORBET descriptive of restaurant and carryout
shops which serve fruit ices); Steak N Shake, Inc. v. Steak and Ale, 171 USPQ 175,
178 (TTAB 1971) (STEAK, common portion of STEAK N SHAKE and STEAK N’ ALE,
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held descriptive of restaurant services); see also Longchamps, Inc. v. Eig, 315 F.Supp.
456, 167 USPQ 81, 83 (S.D.N.Y. 1970) (STEAK & BREW held descriptive, albeit
protectable based on acquired secondary meaning); In re Gen’l Franchising Corp., 169
USPQ 55, 56 (TTAB 1971) (the identification of a restaurant by the name of the food
which is the specialty of the house is merely descriptive of the restaurant; the mark
LA CREPE being the French term for a special variety of delicate, thin Brittany
pancakes, was registrable for restaurant services based on acquired secondary
meaning).
The question is not whether someone presented only with the proposed mark THE
SALAD STATION could guess the activities listed in the identification of services.
Rather, the question is “whether someone who knows what the [services] are will
understand the mark to convey information about them.” DuoProSS Meditech Corp.
v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012)
(quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)); In re Swatch
Group Management Services AG, 110 USPQ2d 1751, 1762 n.54 (TTAB 2014). A
descriptive term immediately and directly conveys some information about the
services. See Stoncor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 111
USPQ2d 1649, 1652 (Fed. Cir. 2014) (citing DuoProSS Meditech Corp. v. Inviro Med.
Devices, Ltd., 103 USPQ2d at 1755). If, on the other hand, THE SALAD STATION
requires imagination, thought, and perception to arrive at the qualities or
characteristics of the services, then the mark is suggestive. In re MBNA America
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Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003); In re Franklin
County Historical Society, 104 USPQ2d 1085, 1087 (TTAB 2012).
Applicant argues that THE SALAD STATION, when used in connection with its
restaurant services, is suggestive because “the consumer would see that THE SALAD
STATION is actually the name of the restaurant itself. The consumer then needs to
use a reasoning process to determine that THE SALAD STATION is actually a full-
service restaurant that offers more than a salad bar.”19
Applicant’s mark THE SALAD STATION immediately conveys information about
a feature of Applicant’s services. As discussed above, due to third-parties’ use of the
term “salad station” to identify a salad bar, consumers would immediately
understand that “salad station” used in Applicant’s mark identifies a feature of
Applicant’s restaurant consisting of a selection of various salad ingredients and
toppings, allowing customers to construct their own salad. No imagination, thought,
or perception is needed to understand that a feature of Applicant’s restaurant is a
salad station.
Applicant also submitted copies of third-party registrations for marks containing
the term “station,” arguing that these “marks use the name of a station as a brand or
moniker for the products or services offered as a whole” and have been allowed to
register, and therefore Applicant’s mark should also be allowed to register. Applicant
submitted copies of the following Registrations20:

19 Applicant’s Brief p. 7 (7 TTABVUE 10).
20 Applicant’s Brief pp. 4-6 (7 TTABVUE 7-9). Applicant submitted copies of third-party
registrations with its 7/29/2015 Response to Office Action, pp. 12-37. Registration Nos.
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Mark Registration No(s). Disclaimer of
“… station”
Goods/Services
Snack Station 4538195; 4538196;
4538197
Display units for
merchandising snack
food products; cookies,
corn-based snack
foods, crackers, popped
popcorn, pretzels;
potato chips, processed
nuts
The Growler
Station
4129595 Retail store services
featuring 64 oz. beer
growlers to go
Mountain Coffee
Station & Design
3901180 “coffee station” Coffee shops
Coffeestation &
Des.
4621228 “coffeestation” Food services, namely,
restaurants and cafes
Fill’er Up Coffee
Station & Des.
4033757 “coffee station” Coffee and juice bar
services; coffee and tea
bars; coffee bars; coffee
shops; coffee-house and
snack-bar services
Water Station &
Des.
3837483 “water station” Drinking water
filtration, purification
and dispensing units
for domestic,
commercial and
industrial use
The Donut
Station
3440155

Coffee shops
Brewstation 3025178 Electric coffee makers
Tea Station &
Des.
2415304 Restaurant services,
catering services,
snack bars, and
cafeterias

1275017 for COFFEE STATION and 1350078 for THE YOGURT STATION were cancelled
for non-renewal, and Registration No. 3017554 for JAVA STATION and Design was cancelled
for failure to file an acceptable declaration under § 8, so those Registrations have not been
considered. Additionally, although Applicant lists Registration Nos. 4544339 for
DRINKSTATION, 3971026 for MOUNTAIN COFFEE STATION and Design, and 1548494
for GRILLING STATION, no copies of these Registrations were submitted and accordingly
they have not been considered.
Serial Nos. 86414039 and 86414055

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Taco Station &
Des.
3021405 Restaurant services
Chianti Station 2196034 Wines
Grilling Station 2097416 Heating unit for
heating and displaying
prepared foods
Pizza Station 1113824 Restaurant services

The fact that third-party registrations exist for marks allegedly similar to
Applicant’s mark because they contain the word “station” is not conclusive on the
issue of descriptiveness. See In re theDot Commc’ns Network LLC, 101 USPQ2d 1062,
1067 (TTAB 2011) (holding .music merely descriptive for, inter alia, on-line social
networking services, domain registration services, interactive hosting services,
electronic publishing, recording, and production services, online retail store and
promotional services, and downloadable files and recordings, despite the presence of
third-party registrations for marks consisting of “dot ____” or “.____”); In re Scholastic
Testing Serv., Inc., 196 USPQ 517, 519 (TTAB 1977) (holding SCHOLASTIC merely
descriptive of devising, scoring, and validating tests for others despite the presence
of other marks on the Register using the word “Scholastic”).
Eight of the fifteen active third-party registrations for marks containing the word
“station” submitted by Applicant are not relevant as they cover miscellaneous goods
which differ from Applicant’s restaurant services. Moreover, in three of the seven
remaining registrations covering restaurant services or coffee bars, the term “coffee
station” was considered merely descriptive and disclaimed. Thus, Applicant relies on
only four registrations for service marks that include the word “station,” and we have
no indication that the records in those cases for phrases such as “taco station” and
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“chianti station” included the same type of descriptiveness evidence we have of “salad
station.” It is well settled that each case must be decided on its own facts and the
Trademark Trial and Appeal Board is not bound by prior decisions involving different
records. See In re Nett Designs, Inc., 236 F. 3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001); In re Datapipe, Inc., 111 USPQ2d 1330, 1336 (TTAB 2014). The question of
whether a mark is merely descriptive is determined based on the evidence of record
at the time each registration is sought. In re theDot Commc’ns Network LLC, 101
USPQ2d at 1064; see In re Nett Designs, Inc., 57 USPQ2d at 1566.
Regardless, an applied-for descriptive mark such as THE SALAD STATION does
not become registrable simply because four other arguably similar marks appear on
the register. In re Scholastic Testing Serv., Inc., 196 USPQ at 519. Therefore,
although other marks containing the term “station” have been registered, the refusal
under § 2(e)(1) should be upheld because this record shows that the mark “THE
SALAD STATION” is merely descriptive of restaurant services.
Lastly, Applicant argues that any doubt regarding the marks’ descriptiveness
should be resolved on Applicant’s behalf. In re Merrill Lynch, Pierce, Fenner & Smith,
Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir. 1987); In re Grand Forest
Holdings, Inc., 78 USPQ2d 1152, 1156 (TTAB 2006). However, in this case, the
evidence of record leaves no doubt that the wording THE SALAD STATION merely
describes a feature of Applicant’s restaurant services. As such, Applicant’s applied-
for standard character mark, THE SALAD STATION, is merely descriptive and thus
not entitled to registration.
Serial Nos. 86414039 and 86414055

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III. Disclaimer
Merely descriptive terms are unregistrable, under Trademark Act Section 2(e)(1),
15 U.S.C. § 1052(e)(1), and, therefore, are subject to disclaimer if the mark is
otherwise registrable. Thus, the Examining Attorney properly required Applicant to
disclaim “the salad station” component of its otherwise registrable mark in Serial No.
86414055 because it merely describes a characteristic or feature of Applicant’s
services and thus is an unregistrable component of the mark. Trademark Act Section
6(a), 15 U.S.C. § 1056(a). Failure to comply with a disclaimer requirement is grounds
for refusal of registration. See In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d
1859 (Fed. Cir. 1987); In re Richardson Ink Co., 511 F.2d 559, 185 USPQ 46 (CCPA
1975); In re Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007); In re Nat’l Presto Indus.,
Inc., 197 USPQ 188 (TTAB 1977).
Decision: The refusal to register Applicant’s mark THE SALAD STATION, Serial
No. 86414039 under § 2(e)(1) is affirmed.
The requirement for a disclaimer of “The Salad Station” which resulted in the
refusal of registration of the THE SALAD STATION and Design mark, Serial No.
86414055, based on Applicant’s failure to submit such disclaimer, is also affirmed.
However, in the event that Applicant submits the required disclaimer21 within thirty
(30) days from the date of this decision, the refusal to register application Serial No.

21 The proper format for the disclaimer is: “No claim is made to the exclusive right to use
THE SALAD STATION apart from the mark as shown.”
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86414055 will be set aside, the disclaimer will be entered, and that application will
proceed to publication. See Trademark Rule 2.142(g), 37 C.F.R. § 2.142 (g).