Friday, July 17, 2015

CHORIZO DOG: Delicious But Descriptive?

On July 11th, Carmelita Provision Company, Inc. filed a trademark application for CHORIZO DOG as it relates to "[p]reserved meats and sausages."
Unfortunately, Section 2(e)(1) of the Trademark Act (15 USC 1052(e)(1)) prevents registration on the principal register of marks that "when used on or in connection with the goods of the applicant is merely descriptive..." Section 1209.01(b) of the Trademark Manual of Examining Procedure (TMEP) provides further that "[a] mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services."

Does CHORIZO (a meat) DOG (common way to refer to preserved meats) describe an ingredient or characteristic of preserved meats and sausages? I think so. Sometimes this bar to registration can be overcome by a showing of "acquired distinctiveness" (meaning the applicant has been using the mark so long that customers have started to view the mark as a trademark rather than a descriptive term), but Carmelita cited a "first use" date of only July 11, 2015. I have a feel the examining attorney will issue an office action refusing to register this mark because it is merely descriptive (although the applicant may amend to the supplemental register).

On a side note, Carmelita's specimen (below) does not match the drawing (above) or show the proposed mark being used in commerce. According to 37 CFR 2.51(a) and TMEP 807.12(a), a "drawing of the mark must be a substantially exact representation of the mark as used on or in connection with the goods/services, as shown by the specimen." Carmelita will need to address this issue as well. It is noteworthy to mention that Carmelita did not appear to enlist the help of an attorney to file this application (which may have prevented these issues).

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