ORIGINAL FOLDED PIZZA – Merely Descriptive?
In a 2020 non-precedential opinion, the Trademark Trial and Appeal Board affirmed a §2(e)(1) refusal of registration for the mark “ORIGINAL FOLDED PIZZA,” (PIZZA disclaimed) for pizza and pizza-related goods.
A Pizza LLC. (Applicant) argued that “a mark comprising a combination of merely descriptive components is registrable if the combination of terms creates a unitary mark with a non-descriptive meaning, or if the composite has an incongruous meaning as applied to the goods or services.” The Applicant then cited an online slang dictionary and claimed that the term “folded” referred to “being drunk,” and cited third-party registrations such as the “Drunk Oyster,” and further attempted to argue that the mark’s alternative meaning suggested a “drunk slice of pizza.”
The Board began its analysis by studying each element of the mark and stated that if each word in the mark retained its mere descriptiveness in relation to the goods in question, then as a result, the mark as a whole would be deemed merely descriptive. “[We] are required to examine the meaning of each component individually, and then determine whether the mark as a whole is merely descriptive.” Citing DuoProSS, 103 USPQ2d at 1758.
Starting with the term “original,” the Board agreed with the Examining Attorney’s argument that the word “original” is simply a laudatory term, and merely descriptive because it simply boasts the “first-of-its-kind” of the Applicant’s folded pizza. It concluded that in this context, “There is no doubt that the word ORIGINAL in Applicant’s proposed mark is merely descriptive of the goods…”
The Board then turned to the term “folded,” which the Applicant based its entire argument upon. The Board first referenced the dictionary definition of the term “folded,” which was, “to lay one part over another part of…” After analyzing the Applicant’s website, it was clear that the term was used in that exact manner, as it touted the Applicant’s “folded” pizza was conveniently folded in half. In a brief response to the Applicant’s sole argument, the Board found that nothing in the Applicant’s use of the term “folded” conveyed an alternative meaning, such as a “drunk slice of pizza.” “That a term may have other meanings in different contexts is not controlling,” See In re Canine Caviar Prods., Inc., 126 USPQ2d 1590, 1598 (TTAB 2018)
Finally, the Board turned to the disclaimed term “pizza.” The Board stated that it was a generic term and merely an identification of the Applicant’s goods. It stated that “As a generic term, PIZZA is ‘the ultimate in descriptiveness.’”
In conclusion, the Board found that the Applicant’s proposed mark was no more than a sum of its descriptive parts. Citing N.C. Lottery, 123 USPQ2d at 1710 the Board stated that the “commercial context here demonstrates that a consumer would immediately understand the intended meaning of” ORIGINAL FOLDED PIZZA, id., namely, that it describes the first pizza to be ‘conveniently folded in half’ for dine-in or take-out consumption.” Therefore, the Board affirmed the §2(e)(1) merely descriptive refusal of registration for the proposed mark ORIGINAL FOLDED PIZZA.