Chi-Chi’s, Inc.

Trademark Trial and Appeal Board

Mar 30, 2001

No. 75537251 (T.T.A.B. Mar. 30, 2001)

03/30/01
Paper No. 10
PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Chi-Chi’s, Inc.
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Serial No. 75/537,251
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Corrine M. Freeman of Lyon & Lyon LLP for Chi-Chi’s, Inc.
Anna Erenburg, Trademark Examining Attorney, Law Office 115
(Tomas Vlcek, Managing Attorney).
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Before Hairston, Wendel and Bottorff, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
An application has been filed by Chi-Chi’s, Inc. to
register the term SALSAFICATION for “restaurant services.”1
The Trademark Examining Attorney has refused
registration under Sections 1, 2, 3 and 45 of the Trademark
Act on the ground that the term, as used on the specimens
of record, fails to function as a mark for the identified
services.
1 Serial No. 75/537,251, filed August 14, 1998, alleging dates of
first use of March 1997.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/537,251
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When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs in
the case.2
The specimens of record consist of applicant’s menu.
Applicant maintains that the term SALSAFICATION functions
as a mark for its restaurant services because the term is
unique and fanciful, which is in contrast to much of the
other wording on the menu which is ordinary and/or
descriptive. In addition, applicant points out that the
term is used on the menu three times; once on the cover and
twice on an inner panel. Further, applicant argues that in
addition to the term SALSAFICATION, it uses other
variations of the word “salsa” on the menu, e.g. SALSAFY
and SALSAFIED, and this will cause customers to identity
all the variations, including SALSAFICATION, with
applicant.
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, must
be used in a manner calculated to project to
purchasers or potential purchasers a single
source of origin for the goods [or services]
2 Applicant, for the first time with its reply brief, submitted
the affidavit of its Senior Vice-President for Marketing along
with several exhibits. Under Trademark Rule 2.142(d), evidence
submitted for the first time with a brief on appeal is generally
considered untimely and therefore usually given no consideration.
In view thereof, we have not considered this evidence in reaching
a decision herein.
Ser No. 75/537,251
3
in question. Mere intent that a term function
as a trademark [or service mark] is not enough
in and of itself, any more than attachment of the
trademark symbol would be, to make a term a
trademark.
A critical element in determining whether
a term is a trademark is the impression the
term makes on the relevant public.
In this case, we disagree with applicant that the term
SALSAFICATION, as used on the menu, functions as a mark for
applicant’s restaurant services. On the menu cover, the
term 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 and
designs are in yellow on a red background. The menu cover
in reduced size is reproduced on the next page.
Ser No. 75/537,251
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Although applicant makes much of the fact that the
term is close to the outstretched arm of the woman, as the
Examining Attorney points out, there is nothing to draw
customers or prospective purchasers attention to the term
SALSAFICATION over the many other pictures and words on the
cover of the menu. In fact, the term is so intermingled in
the whole milieu that it is hardly likely to make any
impact, much less a significant impact on applicant’s
customers and prospective purchasers. Rather, it is the
term CHI-CHI’S and the phrase “Life Always Needs A Little
Salsa” which customers and prospective purchasers are
likely to notice on the menu because they are depicted in
contrasting white letters.
On the inner panel of the menu, the term is used as
part of the phrase “The Declaration of Salsafication” and
within the text which appears thereunder. Neither use is
particularly prominent, and to the extent that customers
and prospective purchasers would notice the term, they
would view it as simply a clever play on the word salsa,
and not as a source of origin of applicant’s restaurant
services.
In reaching our decision, we have not overlooked the
fact that applicant uses other “variations” of the word
salsa in the menu. However, we are not persuaded that such
Ser No. 75/537,251
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uses would cause customers and prospective purchasers to
regard the term sought to be registered here,
SALSAFICATION, as denoting source. In this regard, we note
that there is no evidence properly before us of applicant’s
promotion of the term SALSAFICATION and the other
variations of the word salsa in connection with applicant’s
restaurant services.
Decision: The refusal to register is affirmed.
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