Perdue Holdings, Inc.

Trademark Trial and Appeal Board

Mar 31, 2008

No. 78704019 (T.T.A.B. Mar. 31, 2008)

Mailed: March 31, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Perdue Holdings, Inc.
________

Serial No. 78704019
_______

Jacqueline Levasseur Patt of Venable LLP for Perdue
Holdings, Inc.1

Judith Helfman, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Hairston, Taylor and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Perdue Holdings Inc. has filed an application to
register the mark SNACK-ATIZERS, in standard character
format, on the Principal Register for goods ultimately
identified as “poultry; fully cooked chicken and turkey
snack items” in Class 29.2

1 Counsel was substituted after the main brief was filed.
Before then, applicant was represented by Sherry H. Flax of Saul
Ewing LLP.
2 Serial No. 78704019, filed August 31, 2005, based on an
allegation of a bona fide intention to use the mark in commerce.
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser No. 78704019
2
The trademark examining attorney has issued a final
refusal to register on the ground that applicant’s mark
SNACK-ATIZERS, when used in connection with the identified
goods, is merely descriptive under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052(e)(1). After the refusal
was made final, applicant appealed. Both applicant and the
examining attorney filed briefs. Applicant also filed a
reply brief and requested remand so that the examining
attorney could consider additional evidence submitted with
the appeal brief. The examining attorney then filed a
supplemental brief and applicant filed a supplemental reply
brief. For the reasons discussed below, we affirm the
refusal to register.
Before considering the merits of this case, we must
address several evidentiary matters. We first address
applicant’s objection to the definition of “Snacketizer”
from the online LANGMAKER DICTIONARY OF NEOLOGISMS3 submitted by
the examining attorney in her Office Action dated December
12, 2006. Citing In re Total Quality Group Inc., 51 USPQ2d
1474 (TTAB 1999), “Applicant objects to the use of this
“dictionary” because it [sic] not available in print, not
verifiable, and not reliable.” (Reply brief at p. 2). As

3 See www.langmaker.com.

Ser No. 78704019
3
regards its reliability, applicant contends that “even
Langmaker itself professes: ‘Please don’t mistake this
site for being an accurate dictionary, by design, it’s not,
but it is rather a place to celebrate word coinings.’”
(Id.). Applicant further contends that the types of words
found on the Langmaker site are fanciful and inventive, and
the fact that the “invented” word “snacketizer” appears on
a website filled with non-sensical words should actually
favor a finding of non-descriptiveness.
The examining attorney, on the other hand, contends
that:
The Federal Circuit provided guidance
earlier this year on the issue of
reliability of online definitions for
purposes of determining descriptiveness in
In re Bayer Aktiengesellschaft, [488 F.3d
960, 82 USPQ2d 2828 (Fed. Cir. 2007)],
stating that “Internet evidence is
generally admissible and may be considered
for purposes of evaluating a trademark,”
and more specifically, “[d]efinitions
available from an online resource that are
readily available and as such capable of
being verified are useful to determine
consumer perception.” 488 F.3d at 966, 82
U.S.P.Q.2d at 1833 (emphasis added). In
that case, the applicant objected to the
submission of four online translation
website [sic], …. In affirming the
Board’s ruling of descriptiveness, the
Federal Circuit held that online
dictionaries and translations contributed
to the substantial evidence of record and
were useful to determine current consumer
perception. Id. at 965, 82 U.S.P.Q.2d at
1833.
Ser No. 78704019
4
Applying the determination reached in
In re Bayer Aktiengesellschaft to the
instant case, the definition obtained from
the LANGMAKER DICTIONARY OF NEOLOGISMS website
constitutes one reference in the record
that contributes to the overall
determination that the current consumer
perception and understanding of the term
SNACKETIZER is that of light fare foods.

(Supplemental Appeal Brief at p. 3).
Applicant, in reply, argues that Bayer
Aktiengesellschaft is inapposite because there is no other
similar supporting definition of record which corroborates
the langmaker.com definition.
We are not persuaded by applicant’s arguments. In
Total Quality, the examining attorney requested with his
appeal brief that the Board take judicial notice of
definitions from online dictionaries that were not
otherwise available in print. That applicant objected to
the introduction of this evidence as untimely. The Board
found that the online dictionaries were improper subject
matter for judicial notice because of doubts regarding the
availability and reliability of those online definitions.
The Board stated that “[t]he evidence … should have been
made of record prior to the filing of the appeal, in which
case applicant would have had the opportunity to check the
reliability of the evidence and/or offer rebuttal
evidence.” Total Quality 51 USPQ2d at 1476. Here, the
Ser No. 78704019
5
examining attorney made the definition of record during the
prosecution of the involved application and applicant had
ample opportunity to rebut or otherwise call into question
this evidence. We thus find it timely.
Insofar as the probative value is concerned, this
evidence is similar to evidence taken from Wikipedia, the
online collaborative encyclopedia. In view of the fact
that the LANGMAKER DICTIONARY OF NEOLOGISMS is not intended to be
an “accurate” dictionary but rather a place to “celebrate
word coinings,” the definition therefrom will be accorded
limited weight in our overall descriptiveness analysis and
will merely serve to corroborate the other evidence of
record. Cf., In re IP Carrier Consulting Group, 84 USPQ2d
1028, 1032-33 (TTAB 2007).
Applicant also objected to the evidence submitted by
the examining attorney with her Supplemental Brief as
untimely. The evidence consists, in part, of a nutrition
facts label for Garfield’s boneless buffalo wings
snackatizer, a menu item served at the restaurant chain,
Garfield’s owned by Eateries, Inc., obtained from the
third-party source dietfacts.com. This objection is
overruled inasmuch as the Board indicated in its November
28, 2007 order, remanding the application to the examining
attorney for consideration of additional evidence, that
Ser No. 78704019
6
with her supplemental brief, “[t]he Examining Attorney may
submit additional evidence in response to the evidence
submitted by applicant.”
The Board also stated in that order that “applicant
may not submit any further evidence with its reply brief.”
However, applicant seeks to make of record with its
supplemental reply brief rebuttal evidence. Citing to TBMP
Section 1201.01,4 applicant states that the examining
attorney provided a third-party reference listing of
nutritional information regarding a menu item served at a
national restaurant chain (Garfield’s owned by Eateries,
Inc.), and it “has attached” to its reply pages from the
restaurant’s actual website, as opposed to a third-party
reference, showing the current menu. (Supplemental Reply
Brief at pp. 2-3, n. 1). Because the current menu is not
the “complete article” from which the nutrition facts
information was excerpted, it has not been considered in
reaching our decision herein. We hasten to add that even

4 The relevant TBMP section is now 1207.01 and states, in
relevant part, “if the applicant or the examining attorney
submits excerpts from articles, the nonoffering party may submit
the complete article, even if such submission is made after the
appeal is filed … because the party submitting the excerpt of the
article had the opportunity to review the entire article, if the
article is submitted with an appeal brief the Board need not
remand the application, and may instead consider the article as
part of the record.”
Ser No. 78704019
7
if we had considered it, it would not compel a different
result in this case.
Turning now to the merits of this appeal, the test for
determining whether a mark is merely descriptive is whether
the involved term immediately conveys information
concerning a quality, characteristic, function, ingredient,
attribute or feature of the product or services in
connection with which it is used, or intended to be used.
See, e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987), and In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215 (CCPA 1978). A term need not immediately
convey an idea of each and every specific feature of the
goods or services in order to be considered merely
descriptive; it is enough that the term describes one
significant attribute, feature or property of the goods or
services. In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not
in the abstract, but in relation to the goods or services
for which registration is sought, the context in which it
is being used or intended to be used, and the possible
significance that the term would have to the average
purchaser of the goods or services because of the manner of
its use. In re Recovery, Inc., 196 USPQ 830 (TTAB 1977).
Ser No. 78704019
8
Moreover, “[a]ny competent source suffices to show the
relevant purchasing public’s understanding of a contested
term or phrase.” In re Nett Designs, 236 F.3d 1339, 1341,
57 USPQ2d 1564 (Fed. Cir. 2001).
Applicant contends that the examining attorney
provided no evidence that a consumer who encounters the
mark SNACK-ATIZERS will immediately understand that its
goods are fully-cooked poultry products. Applicant
particularly argues that “[w]hile SNACK-ATIZERS may suggest
[sic] of a quick meal, it does not suggest poultry as a
quick meal. The examining attorney has not demonstrated
that consumers would immediately -- or otherwise --
associate the mark with a particular type of goods even
though it may be suggestive of a possible use of the
goods.” (Brief at p. 1). Applicant also argues that
“SNACK-ATIZER [] constitutes a term created by Applicant
for use in commerce and is not an English language word.
Applicant urges furthermore that it necessitates an element
of thought in order to determine the nature of Applicant’s
goods, which consist of fully-cooked chicken and turkey
meat” (Brief at unnumbered p. 2), and that “all doubt
should be resolved in favor of approving the mark for
publication.” (Reply brief at p. 5) (emphasis in
original).
Ser No. 78704019
9
Applicant, in particular, contends that:
… SNACK-ATIZER could indicate a number of
meanings and does not convey any immediate or
precise significance with respect to Applicant’s
poultry products. Based on the Examining
Attorney’s cited uses of the same or similar
marks, virtually any food product could be a
“snack-atizer.” Applicant’s goods are neither
merely a snack nor an appetizer, but rather a
much broader poultry product that is easy to
consume in a casual setting because it is
prepared. Thus, SNACK-ATIZER may be suggestive
of a characteristic or quality of the goods, but
it is not descriptive of the nature of the goods.
A consumer cannot, without more, understand that
SNACK-ATIZER refers to a fully cooked poultry
product.

(Supplemental Reply Brief at p. 3).

The examining attorney maintains that “the term SNACK-
ATIZERS, is merely descriptive of Applicant’s identified
goods, to wit, ‘fully cooked chicken and turkey snack
items,’ because the term immediately conveys, without
speculation or conjecture, that the goods are a style of
light fare foods that are commonly known, referenced and
listed as SNACK-ATIZERS in the field of food services.”
(Brief at p. 11). She further contends that “substantial”
evidence of record demonstrates that the proposed mark and
its phonetic equivalents are commonly used to identify
“appetizers or a quick bite.” (Brief at unnumbered p. 5).
In support of the refusal, the examining attorney
submitted a variety of evidence from the Internet including
Ser No. 78704019
10
definitions, online restaurant and catering menus, article
excerpts, a magazine article and recipes which she
maintains demonstrates the descriptive nature of the term,
SNACK-ATIZERS (or its phonetic equivalents “snackatizers”
and “snacketizers”).
The evidence of record includes, among other things,
the following:
1. A definition taken from the online dictionary
LANGMAKER DICTIONARY OF NEOLOGISMS: “Snacketizer” is defined as
“[a] light snack that can serve both or either of the
purposes of a snack or an appetizer.”5
2. Use of the term Snackatizers (or its phonetic
equivalents) as a menu category in catering and restaurant
menus and advertising. The menus from the following
restaurants include Snackatizers as a menu category:
American Tap Room (VA), Capital Flavors Catering (DC metro
area), Jeff Machado, Giovanni’s (PA), Neptune Diner (NY)
and Vacco’s (IO). The menus from these restaurants include
Snacketizers as a menu category: Garfield’s (multistate),
Daiquiri Deck (FL), In & Out Pizza, and Fresno’s Southwest
Restaurant and Bar (NY and PA). And, the menu from the
Straw Hat Pizza (CA & NV) includes a SNACK-A-TIZER as a

5 www.langmaker.com/db/eng-snacketizer.htm.

Ser No. 78704019
11
menu item. By way of examples, the AMERICAN TAP ROOM
features American Combo, Buffalo or BBQ Wings, Shrooms,
Grilled Quesadillas; Fried Calamari, Mountain High Cheese
Fries, Chicken Tenders or Buffalo Style, Super Nachos, Crab
Bowl, Peel-N-Eat Shrimp, Annapolis Crab Bread, Fried
Mozzarella and Pot Stickers as Snackatizers; and DACQUARI
DECK features Calamari Rings, Citrus Grilled Shrimp
Skewers, Crispy Chicken Fingers, Smothered Potato Wedges,
Maryland Crab Cakes, Buffalo Shrimp, Bahama Conch Fritters,
Gator Bites Buffalo-Style Chicken Wings, Half-Pound Peel-
and-Eat Shrimp, Shark Bites, Crab Stuffed Mushrooms, Deck
Platter, Creole Shrimp and Crab Dip, Key West Grouper Bites
and Cheese Sticks as Snacketizers.
The advertising copy for the following restaurants
reference “snackatizers” as menu items: Pub Oyster Bar
(MI), advertises “late night snackatizers”; and Fresno’s
(PA and NY), advertises that it has the “Largest Selection
of Snackatizers in Town!.”
3. Use of the term “snackatizer” in restaurant
reviews and other newspaper or magazine articles or online
blogs:
GARFIELD’S FUN PLACE AFTER SHOPPING by Trent Rowe
First courses – Snacketizers – are appetizers
or a quick bite. Some, like nachos, nine-

Ser No. 78704019
12
layer dip or potato skins make a light meal.

Ledger (Lakeland, Florida) (April 19, 1996)

Headline: Mike Sullivan writes about movies he hasn’t seen
Are there enough people in the world who have,
at some point, strapped on their flair and
pushed combo snackatizer platter at happy
chain restaurants to make this inside joke
work?

The News Journal
(Wilmington, Delaware)(October 5, 2005)

Garfield’s the Oklahoma City-based casual
chain, features “Snacketizers” at the
beginning of its menu, with such shareables
as ….
***
“The name is more of an indication of what
the category is for us,” says Marilyn
Ruggles, the company’s vice president of
marketing. They’re snacks, light meals, or
something for a table of two or more to
share.”

Big Flavor, Small Plates by Joan Lang
Flavor the Menu (Fall 2003)

Trail Head
And the rest of us packed in some 40-50 hot
dogs, rolls, condiments, 2 gallons of milk
for hot cocoa, peppers and onions to sauté
for the dogs, chili, and a variety of
snackatizers.

MaineToday.com OUTDOORS (November 16, 2005)
Ser No. 78704019
13
4. A nutrition facts label for Garfield’s “boneless
buffalo wings snacketizer,”6 and describing them as “lightly
breaded chicken breast pieces.”
5. A recipe for MOCK FRITO BEAN DIP reads as follows:7
1 can bean with bacon soup
½ c. salsa or picante sauce (mile, medium, or
hot, your choice)

Mix well in microwavable dish. Mash beans with
fork. Heat thoroughly. Dip Fritos or Doritos.
It’s a different snackatizer.

Based on the evidence noted above, we conclude that
the term SNACK-ATIZERS is merely descriptive of applicant’s
goods, in that it directly informs consumers of applicant’s
fully cooked chicken and turkey snack items of a
significant characteristic or attribute thereof, namely
that they are food items that may be served as snacks or
light fare.
Applicant raised several arguments against the
examining attorney’s position that its mark is merely
descriptive and we address each one in turn. First,
applicant contends that the term “Snacketizer,” is neither
a word, nor a correctly spelled one. We presume by this
that applicant challenges the merely descriptive

6 www.DietFacts.com/htnk/nutrition-facts/garfields-boneless-
buffalo-wings-snacketizer-lightly-fired-breaded-chicken-breast-
pieces-dres40592.htm.

7 www.cooks.com/rec/.
Ser No. 78704019
14
implications of the examining attorney’s assertion that the
terms “Snackatizer” and “Snacketizer” are the phonetic
equivalents of its applied-for designation SNACK-ATIZER.
Notably, the examining attorney based her refusal on the
descriptiveness of both the terms “Snackatizer” and
“Snacketizer,” and much of the supporting evidence shows
the term spelled with an “a” instead of and “e” and, in one
case, the term even includes hyphens. Even though the
terms “Snackatizer” and “Snacketizer” do not appear in
conventional dictionaries, they are phonetically equivalent
to the designation SNACK-ATIZER and, for the reasons
previously stated, that formative is merely descriptive.
Cf., In re Omaha Nat’l Corp., 819 F.2d 1117, 1118, 2 USPQ2d
1859, 1860 (Fed. Cir. 1987)(affirming refusal to register
“FirsTier,” a phonetic equivalent of “first tier” as merely
descriptive of banking services); and In re Hercules
Fasteners, Inc., 203 F.2d 753, 757, 97 USPQ 355, 358 (CCPA
1953)(affirming disclaimer requirement of “FASTIE,” as
phonetic equivalent of “fast tie,” as descriptive of the
function and character of the applied for goods).
Applicant also argues that “whereas ‘snack’ alone may
arguably be descriptive and ‘appetizer’ alone may be as
well, SNACK-ATIZER, which represents the combination of
‘Snack’ and a truncated, intentionally misspelled version
Ser No. 78704019
15
of ‘Appetizer’, is neither generic nor merely descriptive.
The resulting term SNACK-ATIZER constitutes a term created
by Applicant.” (Brief at p. 2). We must point out,
however, that even if applicant coined the term, and there
is nothing in the record to support that assertion, as the
examining attorney correctly noted, “[a] term that was once
arbitrary or suggestive may lose its distinguishing or
origin denoting characteristics through use in a
descriptive sense over a period of time, and come to be
regarded by the purchasing public as nothing more than a
descriptive designation.” See In re Digital Research,
Inc., 4 USPQ2d 1242, 1243 (TTAB1987); In Re Int’l Spike,
Inc., 190 USPQ 505, 507 (TTAB 1976). Herein, the evidence
demonstrates that the public now regards the term
“Snackatizer” as describing a snack or light meal.
Next, applicant argues that the examining attorney has
produced no evidence that anyone offering the same type of
product as applicant, i.e., poultry snack items, has ever
used the term SNACK-ATIZERS to describe any feature or
function of the goods, and that this lack of evidence
raises doubts regarding the descriptiveness of that term.
(Supplemental Reply Brief at p. 3). Applicant particularly
argues that the nutritional facts label for boneless
buffalo wings snacketizer does not evidence use of the term
Ser No. 78704019
16
“snacketizer” in connection with applicant’s product, but
rather a menu item. (Supplemental Reply Brief at p. 3).
Applicant also argues that the Examining Attorney’s
reliance on restaurant menus to establish descriptiveness
for applicant’s mark is unfounded as those uses refer to a
group of diverse food items served to customers in a
restaurant setting whereas Applicant’s mark identifies
fully cooked poultry products sold frozen to food service
professionals or grocery stores.
As regards the asserted lack of evidence showing
SNACK-ATIZER used in connection with fully-cooked poultry
products sold in grocery stores, such evidence is not
necessary. The question before us is whether the
designation SNACK-ATIZER immediately conveys information
concerning a characteristic, function, ingredient,
attribute or feature of applicant’s identified poultry
snacks. In this case, the evidence clearly shows that
potential purchasers of applicant’s poultry snacks would
understand the term SNACK-ATIZER, a term used in the field
of foods and related services, to immediately convey that
the goods are snacks, appetizers and similar light fare.
Furthermore, it is not uncommon to find popular restaurant
appetizers and entrees for sale in the frozen food section
of grocery stores. Accordingly, that fact that applicant
Ser No. 78704019
17
intends to sell its goods to food service professionals or
grocery stores does not diminish the relevance of the
evidence discussed herein nor our finding that the term
SNACK-ATIZER is merely descriptive of applicant’s poultry
snack items. Put simply, the term SNACK-ATIZER merely
describes the nature of applicant’s goods, namely, that
they are small and may be served as light fare.
Last, applicant similarly argues that the since none
of the Internet references to restaurant reviews and
restaurant menus show use of the term “snacketizers” or
formatives thereof in connection with applicant’s poultry
snack items, “the Examining Attorney is taking a leap of
imagination that a term, such as Applicant’s SNACK-ATIZERS,
which might be descriptive of menu items, is, ipso facto,
descriptive of poultry food item.” (Reply Brief at. p. 3).
In support of this contention, applicant introduced copies
of third-party registrations from the TESS database of the
United States Patent and Trademark Office apparently to
show that other terms have registered that may be
descriptive of restaurant menu items. The registrations
are for the marks SWEET ENDINGS (Registration No. 2230830),
SHAREABLE STARTERS (Registration No. 3041714 – STARTERS
disclaimed) and SWEET STARTERS (Registration No. 2496431).
We find these registrations have no probative value in this
Ser No. 78704019
18
matter as we are not privy to the records of those prior
proceedings and are bound to make a decision based on the
record before us. See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564 (Fed. Cir. 2001); AMF Inc. v. American
Leisure Products, Inc., 177 USPQ 268, 269 (CCPA 1973); In
re International Taste, Inc., 53 USPQ2d 1604 (TTAB 2000);
and In re Sunmarks Inc., 32 USPQ2d 1470 (TTAB 1994).
On this record, we conclude that when applied to
applicant’s goods, the designation SNACK-ATIZERS
immediately describes, without any kind of mental
reasoning, speculation or conjecture, a characteristic of
the goods, namely that applicant’s poultry; fully cooked
chicken and turkey snack items are snacks or light meals.

Decision: The refusal to register under Section
2(e)(1) of the Trademark Act is affirmed.