Mailed: September 22, 2009
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Dikran M. Iskenderian
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Serial No. 77266353
Filed: August 28, 2007
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Benjamin Aydindzhyan of Ourfalian & Ourfalian for Dikran M.
Iskenderian.
Angela Gaw, Trademark Examining Attorney, Law Office 104,
Michael Baird, Managing Attorney.
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Before Rogers, Cataldo, and Mermelstein, Administrative
Trademark Judges.
Opinion by Mermelstein, Administrative Trademark Judge:
Applicant seeks registration of MEDITERRANEAN MELT (in
standard characters) for “sandwiches; panini” in
International Class 30.1
Registration has been finally refused pursuant to
Trademark Act § 2(e)(1); 15 U.S.C. § 1052(e)(1), on the
ground that applicant’s mark is primarily merely
descriptive of the identified goods.
We affirm insofar as the record shows MELT is at least
descriptive of, if not generic for, the identified goods
THIS DECISION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77266353
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and therefore the mark is not registrable in the absence of
a disclaimer of such term.
I. Descriptiveness
A. Applicable Law
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Whether a particular term is merely
descriptive is determined in relation to the products for
which registration is sought and the context in which the
term is used, not in the abstract or on the basis of
guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ
215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224
(TTAB 2002). In other words, the issue is whether someone
who knows what the products are will understand the mark to
convey information about them. In re Tower Tech, Inc., 64
USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent &
Trademark Serv. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In
re Home Builders Ass’n of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990); In re Am. Greetings Corp., 226 USPQ 365, 366
(TTAB 1985).
1 Based upon the allegation of a bona fide intent to use the mark
in commerce.
Serial No. 77266353
3
“On the other hand, if one must exercise mature
thought or follow a multi-stage reasoning process in order
to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely
descriptive.” In re Tennis in the Round, Inc., 199 USPQ
496, 497 (TTAB 1978); see also In re Shutts, 217 USPQ 363,
364-365 (TTAB 1983); In re Universal Water Sys., Inc., 209
USPQ 165, 166 (TTAB 1980).
B. Discussion
Applicant’s mark is MEDITERRANEAN MELT for
“sandwiches; panini.” In response to the Examining
Attorney’s request for information, applicant indicates
that
Mediterranean Melt, is a pressed sandwich which
consists of cheese and basturma. Basturma is a
highly seasoned air-dried cured beef. Beef and
preferably veal is the most common meat used for
basturma and it is prepared by pressing the meat
to squeeze out its water, then covering it with a
cumin paste prepared with crushed cumin, garlic,
hot paprika and air-drying it. It can be served
as a mezze in thin slices, usually uncooked.
Response to Office Action at 3.
The Examining Attorney argues that MEDITERRANEAN MELT
is merely descriptive of applicant’s identified goods:
As a singular term, “MELT” is defined as “a
sandwich with melted cheese.” “MEDITERRANEAN” is
defined as “of or relating to or characteristics
of or located near the Mediterranean Sea.” The
Mediterranean can be divided into three culinary
Serial No. 77266353
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regions: North Africa; eastern Mediterranean,
which includes Egypt, Greece, Israel, Lebanon,
Syria and Turkey[,] and southern Europe.
Mediterranean food is characterized by the use of
garlic, onion, tomatoes, artichokes, chickpeas[,]
parsley and seafood. In light of the definitions
of “MEDITERRANEAN” and “MELT” when in association
with food, the Applicant’s mark is merely
descriptive of the identified goods because
potential purchasers of the Applicant’s good[s]
would understand the term “Mediterranean Melt” as
descriptive of a sandwich that consists of cheese
and Mediterranean ingredients.
Ex. Att. Br. at 2 (citations omitted).
The examining attorney submitted, inter alia, the
following dictionary definitions:
melt ... 14. a sandwich or other dish topped with
melted cheese: a tuna melt
RANDOM HOUSE UNABRIDGED DICTIONARY (2006) (Dictionary.com
Unabridged (v 1.1)).
melt ... n. ... 4. A usually open sandwich
topped with melted cheese: a tuna melt.
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.
2006)(online ed.).
melt ... 3: a sandwich with melted cheese
MERRIAM-WEBSTER ONLINE DICTIONARY (2008).
Mediterranean
4. pertaining to, situated on or near, or
dwelling about the Mediterranean Sea.
5. pertaining to or characteristic of the peoples
native to the lands along or near the
Mediterranean Sea.
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RANDOM HOUSE UNABRIDGED DICTIONARY (2006) (Dictionary.com
Unabridged (v 1.1)).
Mediterranean ... The region surrounding the
Mediterranean Sea. Several important ancient
civilizations flourished in the region....
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.
2006)(online ed.).
The Examining Attorney also submitted evidence of
several third-party uses of the term “Mediterranean Melt”
(or variations):
1. A recipe for a “Mediterranean Melt” sandwich,
including artichokes, olives, olive oil, garlic, parsley,
tomatoes, and Taleggio or Fontina cheese on focaccia bread.
www.marthastewart.com/recipe/mediterranean-melt (Jul. 11,
2008);
2. A recipe for a “Mediterranean Tuna Melt”
sandwich, comprising tuna, chickpeas, onion, olives,
capers, and Parmesan cheese on Italian bread.
www.yumsugar.com/1054222 (Jul. 11, 2008);
3. The “Grilled Mediterranean Melt,” a menu item
from a San Francisco restaurant named “Oasis,” consisting
of grilled mushrooms, red pepper, zucchini, lettuce,
tomatoes, feta cheese, Mediterranean seasonings, and
havarti cheese on lavash bread. The “Grilled Chicken
Mediterranean Melt” from the same restaurant is described
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as “[s]liced chicken breast grilled with house vegetables,
topped with havarti and feta cheeses, and sprinkled with
house seasoning.” www.sfoasisgrill.com/catering.htm.
In response, applicant argues that while the
constituent terms of the mark have some meaning, its mark
as a whole is at most suggestive, and is therefore
registrable. We agree that the term MEDITERRANEAN is
suggestive and the mark as a whole is registrable, with a
disclaimer of MELT.
The evidence of record indicates that the term
“MEDITERRANEAN” refers to the large geographic region
surrounding the Mediterranean Sea and encompassing many
countries and cultures. Indeed, as applied to food, the
term is ambiguous, as there are at least three distinct
cuisines, each employing many different ingredients and
cooking techniques. www.cuisinenet.com/glossary/med.html
(Dec. 5, 2007). At most, MEDITERRANEAN can be said to be
broadly suggestive of certain types of ingredients and
cooking styles, but as the application of the term
“MEDITERRANEAN MELT” to vastly different sandwiches
demonstrates, the term MEDITERRANEAN is in no way
immediately descriptive of the features of sandwiches in
general or of a particular sandwich; but the same
applications also demonstrate that MELT does describe or
Serial No. 77266353
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name a sandwich, regardless of its other ingredients, that
includes cheese of some type.
The Examining Attorney’s evidence clearly
establishes that “melt” has specific relevance as applied
to a sandwich, denoting a sandwich topped with melted
cheese. Applicant does not contend otherwise and has
produced no contrary evidence. Accordingly, we find that
“MELT” is at least merely descriptive of applicant’s goods,
namely, “sandwiches; panini,” insofar as this
identification encompasses sandwiches and panini with
melted cheese as an ingredient, and that this meaning would
be understood by consumers immediately, and without further
conjecture.
While the Examining Attorney did not require a
disclaimer of the term “MELT” apart from the mark as a
whole, she did clearly argue (and clearly establish) that
this term is at least merely descriptive as applied to the
identified goods. We find that although the mark as a
whole is not descriptive under Trademark Act § 2(e)(1),
disclaimer of “MELT” is clearly necessary under Trademark
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Act § 6.2 Accordingly, we affirm the refusal of
registration in the absence of a disclaimer of MELT.
Decision: The refusal to register under Trademark Act
§ 2(e)(1) is affirmed in the absence of a disclaimer of
MELT. However, this decision will be set aside if, within
thirty days of the mailing date of this order, applicant
submits to the Board a proper disclaimer of “MELT.”3 See
Trademark Rule 2.142(g); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) § 1218 (4th ed. rev. 2004).
2 Applicant’s two-word word mark is not a unitary expression.
See generally TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”)
§ 1213.05 (5th ed. 2007).
3 An appropriate disclaimer is worded as follows: “No claim is
made to the exclusive right to use MELT apart from the mark as
shown.”
