In re: Louisiana Fish Fry Prods., Ltd., No. 13-1619 (Fed. Cir. 2015)Annotate this Case
Louisiana Fish Fry filed a use-based application with the Patent and Trademark Office (PTO) for the mark LOUISIANA FISH FRY PRODUCTS BRING THE TASTE OF LOUISIANA HOME!, and a design, identifying the following goods for the mark: “Marinade; Sauce mixes, namely barbecue shrimp sauce mix; Remoulade dressing; Cocktail sauce, Seafood sauce; Tartar sauce; Gumbo file; and Cayenne pepper.” The Examining Attorney refused to register the mark absent a disclaimer of FISH FRY PRODUCTS on the basis that the term is not independently registrable. Louisiana Fish Fry argued that a disclaimer of FISH FRY PRODUCTS was not necessary because the term was not generic and had acquired distinctiveness. It submitted evidence that Louisiana Fish Fry had been using LOUISIANA FISH FRY PRODUCTS for at least 30 years. Citing numerous articles and recipes, the Examining Attorney asserted that the relevant public understands “fish fry” to identify fried fish meals and that FISH FRY PRODUCTS is, at least, “highly descriptive.” The Trademark Trial and Appeal Board agreed. The Federal Circuit affirmed, finding that substantial evidence supports the Board’s finding that Louisiana Fish Fry has not established that FISH FRY PRODUCTS has acquired distinctiveness.