A generic term is the common descriptive name of a class of goods or services. The critical issue in genericness trademark cases is whether members of the relevant public primarily use or understand the term sought to be protected to refer to the genus of goods or services in question. Under Ginn a two-step test is applied to determine whether a given term is generic. First, what is the genus of goods or services at issue? Second, is the term sought to be registered or retained on the register understood by the relevant public primarily to refer to that genus of goods or services? Evidence of the public's understanding of the mark may be obtained from any competent source, such as consumer surveys, dictionaries, newspapers and other publications.
Appellant owns and operates a chain of five restaurants branded as "Churrascos." Cordua applied for registration of the service mark CHURRASCOS (in standard character format) and obtained trademark registration, for use of the word in connection with "restaurant and bar services; catering." Appellant subsequently filed for registration of the same mark in stylized form. The trademark examiner rejected the application for being merely descriptive and on the basis that "the applied-for mark is generic for applicant's services." The examiner issued a final rejection on the basis of descriptiveness and genericness. With respect to genericness, the examiner concluded that the term "churrascos" "refer[s] to beef or grilled meat more generally" and that the term "identifies a key characteristic or feature of the restaurant services, namely, the type of restaurant." On appeal to the Board, the examiner's refusal was affirmed. On appeal to the circuit court, the refusal was again affirmed.
Is "Churrascos" a generic mark incapable of registration for restaurant services?
The court affirmed the decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board (Board) refusing registration of a stylized form of a mark for a restaurant because the Board's decision contained no harmful legal error and its finding that the mark was generic was supported by substantial evidence as the term churrascos was generic for a type of restaurant, specifically a restaurant that serves churrascos.