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The Board upheld a refusal to register the proposed mark TACO TUESDAY for beer, finding that the term fails to function as a source indicator under Sections 1, 2 and 45 of the Trademark Act.
The Board upheld a refusal to register the proposed mark
TACO TUESDAY for beer, finding that the term fails
to function as a source indicator under Sections 1, 2 and 45 of the
Trademark Act. Applicant Monday Night Ventures unsuccessfully
argued that the refusal was "illogical and incongruous"
because TACO TUESDAY "is not informational at all as it
relates to the goods in the application" and the use of the
term by restaurants in connection with the sale of tacos on Tuesday
is irrelevant. In re Monday Night Ventures LLC, Serial
No. 88817107, [not precedential] (Opinion by Judge Cynthia C.
Lynch).
Examining Attorney Ashley Albano's supporting evidence was
"voluminous" and fell into two general categories: first,
evidence reflecting general use of the phrase "Taco Tuesday to
refer to a regular Tuesday evening event incorporating tacos and
drinks; and second, use of "Taco Tuesday" on or in
connection with beer: for example, North Country Brewing
Company's "Taco Tuesday" Brown Ale, and Shades
Brewing's "Taco Tuesday" Sour "American-Style
Ale."
The evidence makes clear that
"Taco Tuesday" is a very commonplace term that refers to
having tacos and drinks on that particular day of the week. See
Texas With Love, 2020 USPQ2d 11290, at *3 ("It is clear
from how the term is used by multiple third parties that [the term]
merely conveys a well-recognized concept or sentiment."). The
record also shows that "Taco Tuesdays" commonly involve
beer consumed along with tacos, and "Taco Tuesday" events
often feature beer specials. "[T]he marketplace is awash"
in use of the term for events and specials including beer. See
D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d at 1716.
Noting that applicant's own website promotes its beer as
"the ultimate pairing for tacos," the Board found that
consumers would perceive TACO TUESDAY "as an informational
indication that the beer is suitable or intended for drinking at
such 'Taco Tuesday' events."
Although Applicant provided a menu
specimen and evidence of TACO TUESDAY on its cans of beer, showing
use in a non-informational manner, we remain unconvinced that the
term actually functions as a mark because of the environment in
which it is perceived by consumers.
And so, the Board affirmed the refusal.
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