Digest of In re Louisiana Fish Fry Prods., No. 2013-1619 (Fed. Cir. Aug. 14, 2015) (precedential). On appeal from USPTO. Before Newman, Reyna, and Hughes.

Procedural Posture: Applicant, Louisiana Fish Fry Products, appealed the Trademark Trial and Appeal Board (“TTAB”) decision refusing to register its mark. CAFC affirmed the TTAB’s decision and remanded for further proceedings.

  • Trademarks: CAFC found that the Board properly refused to register a mark without a disclaimer of a specific term included in the mark. Applicant argued that a disclaimer of FISH FRY PRODUCTS in the mark LOUISIANA FISH FRY PRODUCTS BRING THE TASTE OF LOUISIANA HOME! was not necessary because the disputed specific term had acquired distinctiveness. CAFC determined that the applicant did not meet its burden of showing acquired distinctiveness for FISH FRY PRODUCTS, which was determined to be a highly descriptive mark, because the applicant submitted evidence only related to the mark LOUISIANA FISH FRY PRODUCTS. CAFC held that the applicant did not carry its burden necessary to prove acquired distinctiveness because the evidence submitted was not limited to the specific disputed term.

Newman, concurring:

  • Trademarks: Judge Newman argued that the same outcome should have been properly reached instead because the specific disputed term, FISH FRY PRODUCTS, was generic. Judge Newman further emphasized that “evidence purporting to show acquired distinctiveness . . . is irrelevant” for terms that are generic or including a common descriptive name.