White Toque, Inc.

Trademark Trial and Appeal Board

Mar 12, 2002

No. 75644652 (T.T.A.B. Mar. 12, 2002)

3/12/02 Paper No. 11
DEB

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re White Toque, Inc.
________

Serial No. 75/644,652
_______

Myron Amer of Myron Amer P.C. for White Toque, Inc.

Barbara Sundberg Loughran, Trademark Examining Attorney, Law
Office 101 (Jerry Price, Managing Attorney).
_______

Before Seeherman, Bucher and Bottorff, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
White Toque, Inc. has applied on the Supplemental
Register to register the words HARICOTS VERTS as a trademark
for goods identified, after amendment, as “string beans.”
Initially, applicant had filed an application on the Principal
Register for the alleged mark HARICOT VERT1 for goods first
identified as “green beans.”2 In the initial Office action of

1 Application Serial No. 75/644,652 was filed on February 22,
1999, based upon applicant’s claim of use in commerce since at least
as early as January 1992. In an Office action dated June 13, 2000,
the Trademark Examining Attorney noted that the original drawing
page showed the alleged mark as HARICOT VERT whereas the specimens
showed use of the designation HARICOTS VERTS. In its response of
July 5, 2000, applicant requested that the mark be amended to
HARICOTS VERTS, and the Trademark Examining Attorney approved this
amendment.
2 The Trademark Examining Attorney’s approval of applicant’s
amendment of the goods from “green beans” to “string beans” is
consistent with Trademark Rule 2.71(a). The entire record shows
that “string beans” are a subset of “green beans,” and hence the
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/644,652
- 2 -
July 6, 1999, the Trademark Examining Attorney refused this
matter as merely descriptive. Applicant then amended the
application to the Supplemental Register with its response of
August 17, 1999. Accordingly, the Trademark Examining
Attorney later made final her refusal to register the term
HARICOTS VERTS on the Supplemental Register. She held that it
is a generic term for the goods, and hence, incapable of
indicating source. Applicant then filed the instant appeal.
Applicant and the Examining Attorney have fully briefed
the case, but applicant did not request an oral hearing.
The sole issue before us is whether the term HARICOTS
VERTS is capable of identifying and distinguishing the source
of applicant’s string beans. We find that it is incapable of
such a function and, hence, affirm the refusal to register on
the Supplemental Register.
In support of her position that the term is generic for
applicant’s beans, the Trademark Examining Attorney has made
of record entries from a number of dictionaries and foreign
language translation services, such as the following:
haricot: The edible pod or seed of any of several
beans …
[The American Heritage Dictionary of the English
Language, electronic version (3rd Ed. 1992)]

vert: (1) Heraldry: the color green; (2) Green
vegetation …

amended identification falls within the scope of the original
identification of goods.
Serial No. 75/644,652
- 3 -
[The American Heritage Dictionary of the English
Language, electronic version (3rd Ed. 1992)]

haricot: bean … haricot vert: French bean
[Webster’s New World French Dictionary (1995)]

green bean (English): translates into haricot
vert (French)
[Logos Group, online query at
www.logos.it/dictionary/owa/dictionary.query

French beans, haricots verts, green beans
(English): translate into haricots verts (French)
[Logos Group, online query at
www.logos.it/dictionary/owa/dictionary.query

French bean (English): translates into haricot
vert (French)
[Systran Translation software, online query at
http:/babelfish.altavista.digital.com/cgi-
bin/translate?

French beans (English): translates into haricots
verts (French)
[Systran Translation software, online query at
http:/babelfish.altavista.digital.com/cgi-
bin/translate?

Furthermore, we also take judicial notice of an entry
from Cassell’s French-English Dictionary which shows “haricots
verts” as the translation for “French beans.”3
The Trademark Examining Attorney included copies of the
first twenty excerpts extracted from more than 1700 stories in
the LEXIS/NEXIS data base containing some form (e.g., singular
and/or plural) of the searched term “haricot vert,” from which
we have set out the first half-dozen excerpts as follows:
La Tour’s menu is basic. You can start the meal
with gazpacho; an endive salad with haricots verts,

3 Cassell’s French-English English-French Dictionary, New
Edition, p. 390).
Serial No. 75/644,652
- 4 -
Roquefort cheese and walnuts; or poached skate on a
bed of frisee with lime-orange dressing …
[“Diner’s Journal,” The New York Times, June 9,
2000, p. E-37]

Peaches, haricot verts, ichibon eggplant, orka
(sic), merit yellow corn, Creole tomatoes,
blueberries, cantaloupe, squash, cucumbers, yard
eggs, …
[“Garden Advice,” The Times Picayune, June 9,
2000]

All the main dishes came garnished with a sprig of
fresh rosemary and sided with a dull mélange of
undercooked, underseasoned carrot slices, haricots
verts, and baby asparagus spears.
[“Sweet and Sour Citrus,” Cleveland Scene, June 8,
2000]

Next we tried the lolla rosa salad ($6.95) with
haricot verts, paper thin slices of onions and
fennel and crumbles of blue cheese …
[“Café Monk Shows Potential but Remains
Inconsistent,” The San Francisco Chronicle,
June 7, 2000, p. 7ZZ1]

… gleaming white anchovies and shaved Parmesan
laid over al dente asparagus, and a vibrant
carpaccio topped with a haricot vert/yellow wax
bean salad.
[“Bruno’s Red Leather Booths are Filled Again,”
The San Francisco Chronicle, June 7, 2000, p.
2ZZ1]

… range chicken set new standards for a crisp-
skinned, moist and tender bird. It was surrounded
by haricots verts, roasted cipolini onions, a
portion of succhini (sic) stuffed with vegetables
and excellent mashed potatoes in lemon-thyme
sauce.
[“A Serious Chef and Staff Make a Difference,”
[The New York Times, June 4, 2000, §14CN, p. 17]

In spite of the plethora of evidence placed into the file
by the Trademark Examining Attorney, applicant argues that she
has failed to demonstrate that its alleged mark is generic for
string beans. Accordingly, applicant argues as follows:
Serial No. 75/644,652
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[A food glossary entry] states that “haricots
verts” is a French word for “green beans.” It
says that “green beans” are also known as “string
beans,” but it does not actually say that
“haricots verts” is a French word for “string
beans.” It also does not say that there is a
particular type of green bean that is a French
string bean known as “haricots verts.” More
significant, this single statement from all the
Exhibits made of record does not support that what
is asserted in the PTO brief … is a fact well
known to the public.

[applicant’s reply brief, p. 2]

Finally, applicant argues that the determination of
whether a designation is capable of registration is a most
liberal standard applied in favor of registrability, and
points to the alleged “incongruity” in the spelling of this
French language term as being sufficiently ingenious to permit
registration on the Supplemental Register.
In order to be registrable on the Supplemental Register,
the matter sought to be registered must be “capable of
distinguishing applicant’s goods or services.” Section 23 of
the Trademark Act, 15 U.S.C. §1091. 4 Generic terms are by

4 Filing and registration for foreign use
“… All marks capable of distinguishing applicant's goods
or services and not registrable on the principal register
herein provided, except those declared to be
unregistrable under subsections (a), (b), (c), (d), and
(e)(3) of section 2 of this Act, which are in lawful use
in commerce by the owner thereof, on or in connection
with any goods or services may be registered on the
supplemental register upon the payment of the prescribed
fee and compliance with the provisions of subsections (a)
and (e) of section 1 so far as they are applicable…

Serial No. 75/644,652
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definition incapable of indicating source and thus are
unregistrable on the Supplemental Register. As our principal
reviewing court has stated:
…[D]etermining whether a mark is generic …
involves a two-step inquiry: First, what is the
genus of goods or services at issue? Second, is
the term sought to be registered … understood by
the relevant public primarily to refer to that
genus of goods or services?

H. Marvin Ginn Corporation v. International Association of
Fire Chiefs, Inc., 782 F.2d 987, 990, 228 USPQ 528, 530 (Fed.
Cir. 1986). The Office has the burden of proving genericness
with “clear evidence.” In re Merrill, Lynch, Pierce, Fenner &
Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir.
1987). The critical issue in genericness cases such as this
one is whether members of the relevant public primarily use or
understand the term sought to be registered to refer to the
genus or category of goods in question. In re Recorded Books,
Inc., 42 USPQ2d 1275 (TTAB 1997). Evidence of the relevant
public’s perception of a term may be obtained from any
competent source, including newspapers, magazines,
dictionaries, trade journals, catalogs and other publications.
In re Leatherman Tool Group, Inc., 32 USPQ2d 1443, 1449 (TTAB
1994), citing In re Northland Aluminum Products, Inc., 777
F.2d 1566, 227 USPQ 961, 963 (Fed. Cir. 1985). And of course,
in this, as in all cases, the Office must be able to satisfy
both elements of the test as set forth in the controlling
Serial No. 75/644,652
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precedent of Marvin Ginn. See In re American Fertility
Society, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999).
Applicant’s current identification of goods is “string
beans.” Its packaging identifies the goods as “string beans.”
The record is clear that, in the language of Marvin Ginn, the
legal genus of applicant’s goods herein is “string beans.”
The Trademark Examining Attorney has made the case that
the term “haricots verts” will be understood by the relevant
public primarily to refer to tiny string beans, whether one
considers it to be a foreign term, and therefore to be treated
under the doctrine of foreign equivalents, or whether one
considers the term as having entered the vernacular as shown
by its wide-spread use in the English language press, where it
often appears with other culinary terms without translation or
further clarification.
The record shows that haricot vert is French for “green
bean” or “French bean.”5 Yet, applicant argues that
botanically “string bean” does not overlap with the bean known
as “le haricot vert.” Furthermore, applicant also argues that
when pluralized in French, the proper term would be “haricots
vert,” not “haricots verts”:
The English translation of the French word VERT
(in the singular) is GREEN (also in the singular)
and grammatically would not be modified to the
French word VERTS (in the plural) as making no

5 See entries listed on page 3, supra.
Serial No. 75/644,652
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sense as an adjective for the French word HARICOTS
(in the plural).

(applicant's Brief on Appeal, p. 2.)
Applicant has provided no authority for this statement.
In fact, this argument would seem to be contradicted by the
general principle that a plural adjective would be used with a
plural noun. Although there are some references in the record
to “haricots vert” and “haricot verts,” the majority of the
references are to “haricots verts.” More importantly, the
Cassell’s French-English dictionary presents the term as
“haricots verts” – exactly the same as the spelling used by
applicant in its amended drawing.
Furthermore, even without relying upon the doctrine of
foreign equivalents, the record shows that this term has
entered the lexicon of the American culinary world to identify
tiny string beans. The term “haricots verts” appears on
restaurant menus, in glossaries of English language terms, and
in newspaper articles to refer to a tiny green string bean.
Decision: Hence, we find that the Trademark Examining
Attorney has satisfied both elements of the test as set forth
in Marvin Ginn and we affirm the refusal to register under
Section 23 of the Act.