A delicious but possibly descriptive trademark application was filed on July 19th by a Florida company called Mac and Cheese Holdings, LLC (ed. - sounds like a great place to work). On that date, the company filed a federal trademark application for JALAPENO MAC BITES covering "macaroni and cheese bite sized nuggets filled with jalapenos and cream cheese and other cheeses and coated in breadcrumbs and baked" in Class 30.
TMEP 806.01(b); 15 USC 1051(b). Delicious, but is it merely descriptive of the underlying goods?
Under Section 2(e)(1) of the Lanham Act, marks that merely describe the underlying goods or services are not registerable on the Principal Register (where you want to be) of the U.S. Patent and Trademark Office without a showing of acquired distinctiveness (which is very difficult to show with an intent to use application).
According to TMEP 1209.01(b), "a mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." Even if a mark does not describe every purpose, feature, function, etc., it can still be merely descriptive if it describes one significant function, attribute, or property of the goods or services. Id.
What do you think? Does JALAPENO MAC BITES merely describe an ingredient, quality, characteristic, function, feature, purpose, or use of macaroni and cheese bite sized nuggets filled with jalapenos and cream cheese and other cheeses and coated in breadcrumbs and baked? Or is it only suggestive of the goods in that it requires "imagination, thought, or perception to reach a conclusion as to the nature of those goods..." (and therefore can be registered on the Principal Register without a showing of acquired distinctiveness)? See TMEP 1209.01(a).
Keep an eye on this application and see what the Examining Attorney thinks in about three months when the application is examined.
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