The Board affirmed a refusal to register THE JOINT, in standard character form, for "Restaurant, bar and catering services" and for "Entertainment services, namely, live musical performances, shows, and concerts; and nightclub services," on the ground of genericness. Alternatively, the Board found that THE JOINT, if not generic, is merely descriptive of applicant's services and lacks acquired distinctiveness. In re HRHH IP, LLC, Serial Nos. 86525431 and 86525425 (April 4, 2018) [not precedential] (Opinion by Judge Robert H. Coggins).
Genericness: The Board found the genus of services at issue to be defined by the recitations of services in the two subject applications. "[T]he relevant consuming public consists of ordinary consumers who attend live musical performances, shows, and concerts, and who use nightclub, restaurant, bar, and catering services."
Examining Attorney Sani Khouri submitted dictionary definitions of THE and JOINT, and website references demonstrating use of the terms "joint" and "the joint" in connection with entertainment and eating establishments. Applicant argued that the addition of THE to JOINT transforms the proposed mark such that it would be perceived as American slang for "jail." The Board, however, was not convinced of the transformation, finding only minimal evidence in support of applicant's assertion. The argument, the Board observed, is even less convincing when THE JOINT is considered in relation to applicant's services.
Applicant contended that THE JOINT is a double entendre, but the Board found "nothing in the record that would lead us to believe that consumers would associate the concept of 'the joint' as a prison with its entertainment services, nightclub services, restaurants, bars, or catering services."
In sum, the record demonstrates that the primary consumer perception of the term THE JOINT, as a whole, is that of a common name for the identified services, namely, nightclubs, restaurants, and bars.
The Board therefore affirmed the genericness refusal.
Mere Descriptiveness and Section 2(f): Implicit in the Board's genericness holding is a ruling that THE JOINT is merely descriptive of the services. The dictionary definitions alone show that the term "immediately conveys the idea of a business establishment that provides live musical performances, shows, and concerts, and nightclub, restaurant and bar services."
As to acquired descriptiveness, applicant's allegation of more than five years of use was insufficient proof in view of the highly descriptive nature of THE JOINT. Applicant claimed more than $12 million in advertising expenses since 1995, and more than $104 million in gross revenues from 2009-2016. It has tens of thousands of website visitors per month, nearly 100,000 likes on Facebook, and nearly 25,000 Twitter followers.
The Board, however, pointed out that applicant did not provide any context for those figures. Moreover, applicant's services are offered at a single location in Las Vegas at the Hard Rock Hotel and Casino.
The Board concluded that applicant failed to show that THE JOINT will be perceived as a source identifier for applicant's services, and so the Board affirmed the alternative Section 2(e)(1) refusal.
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