Tropical Cheese Industries, Inc.

Trademark Trial and Appeal Board

Oct 13, 2000

No. 75407503 (T.T.A.B. Oct. 13, 2000)

Paper No. 23
TEH
10/13/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Tropical Cheese Industries, Inc.
________
Serial No. 75/407,503
_______
Ezra Sutton of Ezra Sutton, P.A. for Tropical Cheese Industries,
Inc.
Angela Bishop Wilson, Trademark Examining Attorney, Law Office
111 (Craig D. Taylor, Managing Attorney).
_______
Before Walters, Holtzman and McLeod, Administrative Trademark
Judges.
Opinion by Holtzman, Administrative Trademark Judge:
Tropical Cheese Industries, Inc. has filed an application to
register FINEST LATIN AMERICAN REFRIGERATED FOODS for the
following goods:1
Cheese, sour cream, heavy cream, yogurt, butter, margarine,
processed luncheon meats, soup, and prepared foods, namely
chicken and rice, shredded beef, pork and rice, fried
bananas, salted cod and rice, shrimp and rice; drinkable
yogurt, milk-based fruit drink. In Class 29.

1 Application Serial No. 75/407,503, filed December 18, 1997, alleging
a bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/407,503
2
Salsas, cooking sauces, desserts, namely flan, cheesecakes,
and bread pudding; tortillas, arepas, empanadas, tamales,
burritos, enchiladas, rice and beans, and rice-based food
beverages. In Class 30.
Beverages, namely fruit juices and fruit nectars. In Class
32.
Registration has been finally refused under Section 2(e)(1)
of the Trademark Act on the ground that applicant's mark is
merely descriptive of its identified goods.
Applicant has appealed. Both applicant and the Trademark
Examining Attorney have filed briefs, but an oral hearing was not
requested. We affirm the refusal to register.
It is the Examining Attorney's position that the proposed
mark merely describes several features of applicant's food
products. The Examining Attorney contends that FINEST is a
nondistinctive laudatory word which touts the quality of the
foods, that LATIN AMERICAN identifies the type of foods the
applicant provides, and that REFRIGERATED indicates that the
foods "are designed to be chilled." In support of her refusal,
the Examining Attorney has submitted a dictionary definition of
"finest" meaning "of superior quality"; "Latin American"
referring to "Western Hemisphere nations south of the United
States that have Spanish, Portuguese, or French as their official
languages"; and "refrigerated" meaning "to preserve (food) by
Ser No. 75/407,503
3
chilling."2 The Examining Attorney concludes that the proposed
mark consists of words which when taken as a whole, are merely
descriptive of applicant's goods.
Applicant maintains that even if the components of the mark
are "individually descriptive" of the identified goods, the mark
as a whole "is still registrable." Applicant argues that its
mark is "unique and distinctive" because the mark consists of a
combination of words that "have never before been used together"
in connection with food products.
A term is merely descriptive within the meaning of Section
2(e)(1) if it immediately conveys knowledge of the ingredients,
qualities, or characteristics of the goods or services with which
it is used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Moreover, the question of whether a particular term
is merely descriptive must be determined not in the abstract, but
in relation to the goods or services for which registration is
sought. See In re Engineering Systems Corp., 2 USPQ2d 1075 (TTAB
1986).
As confirmed by the dictionary definitions submitted by the
Examining Attorney, the plain meaning of the words comprising
FINEST LATIN AMERICAN REFRIGERATED FOODS, when considered in
relation to applicant's food products, are merely descriptive of
those products. Applicant does not argue otherwise. It is clear

2 Webster's II New Riverside University Dictionary (1984).
Ser No. 75/407,503
4
that the word FINEST conveys information to the potential
purchaser about the alleged quality of applicant's foods, that
the designation LATIN AMERICAN describes the type or style of
cuisine provided under the mark, and that REFRIGERATED refers to
the fact that the food items are chilled or that they may be
found by purchasers in the "refrigerated" section of the grocery
or food store.
We disagree that the combination of these individual words
results in a term which is unique or any less descriptive than
the words taken alone. See In re Disc Jockeys Inc., 23 USPQ2d
1715 (TTAB 1992). Viewed either as individual words or a
combined phrase, FINEST LATIN AMERICAN REFRIGERATED FOODS
immediately conveys the same information to the relevant public
about applicant's food products, and no imagination, thought or
perception is required to make that determination.
Moreover, the fact that applicant will be or intends to be
the first and/or only user of the wording FINEST LATIN AMERICAN
REFRIGERATED FOODS for food products is not dispositive where, as
here, the phrase unquestionably conveys a merely descriptive
meaning as applied to those products and the descriptive meaning
would be obvious to the purchasing public. In addition, the
absence of any third-party use of this phrase does not mean that
competitors of applicant would not need to use such a phrase in
Ser No. 75/407,503
5
advertising and promoting similar types of food products of their
own. See In re Eden Foods Inc., 24 USPQ2d 1757 (TTAB 1992).
Accordingly, we find that applicant's asserted mark is
merely descriptive of applicant's goods.
Decision: The refusal to register under Section 2(e)(1) is
affirmed.
C. E. Walters
T. E. Holtzman
L. K. McLeod
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
Ser No. 75/407,503
6