[00:00:00] Speaker 00: This is submitted our next case for the day. [00:00:02] Speaker 00: Our final case is two zero one six dash one six one seven in Ray Kelly burger. [00:00:32] Speaker 00: The girl on my right wanted you to have it. [00:00:45] Speaker 00: I'm just jealous. [00:00:47] Speaker 00: Okay, Mr. Walz, as soon as you're ready. [00:00:50] Speaker 00: Walz. [00:00:51] Speaker 00: How do I say your name? [00:00:52] Speaker 00: Walz. [00:01:14] Speaker 03: You're not a Cali lawyer. [00:01:23] Speaker 02: May it please the court. [00:01:33] Speaker 02: It is undisputed that Cali can be suggestive of a lifestyle. [00:01:38] Speaker 02: And that is the case here. [00:01:40] Speaker 02: When my client filed its application in 2012, [00:01:44] Speaker 02: It intended to use the Cali term to suggest the lifestyle experience at its restaurants. [00:01:50] Speaker 02: And its intention was much like similar restaurants that have also adopted the same Cali term as part of their model. [00:01:58] Speaker 02: The record indicates that there's a restaurant by the name of Cali Burrito. [00:02:03] Speaker 02: And that Cali Burrito describes its restaurant as being influenced by the mellow Cali butt. [00:02:09] Speaker 02: There's another restaurant in the record by the name of Cali Fire Grill. [00:02:13] Speaker 02: And that restaurant describes itself as being influenced by car, surf, and skate culture. [00:02:19] Speaker 02: And it goes on to say that these are the ethos that make the West Coast the best coast. [00:02:23] Speaker 02: So similar to these other restaurants, my client adopted the Kelly term to, again, suggest the lifestyle experience at his restaurant not to describe a particular menu item that may be offered at the restaurant. [00:02:40] Speaker 02: And in fact, the evidence of record demonstrates that my client does not promote any particular menu item. [00:02:47] Speaker 02: Instead, it promotes its menu generally, its burgers, its chicken sandwiches, as being made with fresh ingredients, prepared in a very healthy way, which is consistent with its messaging that it is the California lifestyle that is the primary message being conveyed to consumers not to promote any particular menu item. [00:03:08] Speaker 02: So the question in this appeal. [00:03:10] Speaker 03: Just so I understand your arguments, I understand you're saying Cali Burger is suggestive. [00:03:17] Speaker 03: But what if the name of the mark you were trying to register for restaurant services was California-style burger? [00:03:29] Speaker 02: Well, if the main menu item or what was being [00:03:34] Speaker 02: promoted as a feature of substantial aspect of the restaurant was, in fact, a California-style burger, then it would be a descriptive term. [00:03:44] Speaker 02: But so long as that could convey some other type of message, other than just a food item that is available at the restaurant, then the law says that that would not be a descriptive use. [00:03:58] Speaker 02: And it could function in a suggestive capacity. [00:04:03] Speaker 00: I'm sorry. [00:04:04] Speaker 01: your press release, I think it's a press release, Kelly Burger Girl Candace Unions, I guess it's an interview, specifically refers to California style burgers. [00:04:17] Speaker 02: She uses the term California style and I think that's quite frankly where the board made an error by focusing solely on the use of the term California style and not considering that term in the context in which it's being used. [00:04:30] Speaker 02: For example, in that City Weekend article, Candice Nunez had to go on to explain in the second sentence to the reporter what she meant by a California style. [00:04:40] Speaker 02: And when she went on to give that explanation, she didn't say that it was a burger that consisted of particular ingredients. [00:04:48] Speaker 02: Instead, she went on to say fresh ingredients, which again, is consistent with the messaging of a California lifestyle, which is what [00:04:57] Speaker 02: my client primarily conveys to its customers. [00:05:01] Speaker 00: Just out of curiosity, what is a California-style burger? [00:05:05] Speaker 02: Well, it varies. [00:05:05] Speaker 02: There is no consistent definition of what is a California-style burger. [00:05:09] Speaker 02: There are some that find, in various regions of the country, a burger that contains lettuce, tomato, onions. [00:05:18] Speaker 02: In some areas of the country, a California-style burger has mayo. [00:05:21] Speaker 02: But I think the key ingredient that seems to be- I thought it was anything with moderate Jack on it. [00:05:27] Speaker 02: Cheese, yeah, probably. [00:05:30] Speaker 02: But one of the key ingredients that seems to be the most consistent is the presence of avocado. [00:05:35] Speaker 02: If there's an avocado, which would make sense, avocados are grown in California. [00:05:40] Speaker 02: They're prominent there. [00:05:41] Speaker 02: And so that would be a signature ingredient that would render a burger California style. [00:05:46] Speaker 02: My client's burgers do not contain an avocado. [00:05:50] Speaker 02: In fact, what makes the Cali Double Burger its signature. [00:05:57] Speaker 00: But the law doesn't say that I look at what you're selling and decide whether you're selling a California style burger, right? [00:06:04] Speaker 00: I'd look at what mark you're applying for. [00:06:07] Speaker 00: So even if you weren't selling a burger with avocado and bean sprouts, which is probably what in my mind comes to mind, [00:06:15] Speaker 00: If that's not what you were selling, that wouldn't be the issue. [00:06:18] Speaker 00: If you were seeking this mark for a burger, even if the one you were selling turned out to be slightly different, it had lettuce, tomato, and onions, you know what I mean. [00:06:27] Speaker 00: It's what you're seeking the mark for, right? [00:06:30] Speaker 02: Correct, right. [00:06:31] Speaker 00: Because I looked on your finds website, which is referred to in the record. [00:06:34] Speaker 00: So while I'm looking on a modern day version, because the record didn't contain screenshots, it just contained the website, which the examiner himself looked to. [00:06:43] Speaker 00: But you offer Cali style fries. [00:06:45] Speaker 00: That's what you say, California style fries. [00:06:48] Speaker 00: These are French fries with quote, real American cheese. [00:06:51] Speaker 00: I'm not sure what the alternative was, but real American cheese and onions. [00:06:57] Speaker 00: And I thought, what the heck about that screams California to me. [00:07:01] Speaker 02: I mean, you know, I, I, I think you're, I think you're exactly right. [00:07:05] Speaker 02: I mean, because Cali has [00:07:07] Speaker 02: a suggestive health type of quality to it, right? [00:07:11] Speaker 00: So to compare- But the PT didn't even conclude that, right? [00:07:14] Speaker 00: They didn't conclude that California style means healthy organic ingredients or something like that. [00:07:19] Speaker 00: They didn't go with a characteristic like that. [00:07:23] Speaker 02: The board you're referring to? [00:07:24] Speaker 02: Correct. [00:07:24] Speaker 02: No, the board found that Cali can be suggestive of a lifestyle. [00:07:28] Speaker 02: And I guess our position is that the elements of the California lifestyle, which the director didn't object to or take issue with, [00:07:36] Speaker 02: Uh, one aspect is that there's this sort of healthy characteristic, healthy element to, to California or to the Cali lifestyle when you, when you think about that. [00:07:46] Speaker 02: And so when you, when you combine that, that's not what it calls to mind. [00:07:49] Speaker 00: The word Cali burger taken together means California style burger. [00:07:55] Speaker 00: That's what they concluded. [00:07:56] Speaker 00: And you need me to conclude that's not true, right? [00:07:59] Speaker 00: That's what you need. [00:08:00] Speaker 00: You need me to conclude it doesn't call to mind California style burger. [00:08:05] Speaker 02: Correct. [00:08:05] Speaker 02: Right. [00:08:06] Speaker 02: And I think that because there isn't an incongruous meaning when you combine Cali, which is a suggestive term of this lifestyle, and that lifestyle does include a health component, with burger, a descriptive term, which for the most part has a connotation of being unhealthy. [00:08:24] Speaker 01: Right. [00:08:24] Speaker 02: It's not to be moron when you get right into it. [00:08:26] Speaker 02: It's not to be moron. [00:08:27] Speaker 02: Exactly. [00:08:28] Speaker 02: And the law's pretty clear that when a combined mark, a unitary mark, creates an incongruous meaning, that's an indication that it is suggestive. [00:08:38] Speaker 02: It's not a descriptive term. [00:08:40] Speaker 03: Would your argument be the same if the mark was California burger? [00:08:45] Speaker 03: So now you'd be making the same argument that, OK, the word California, it's not just a state, or it's a state of mind. [00:08:57] Speaker 03: And so now it's all about, I don't know, lifestyle. [00:09:01] Speaker 02: And we're saying California Burger for a restaurant? [00:09:04] Speaker 02: Right. [00:09:05] Speaker 02: Yeah. [00:09:05] Speaker 02: Right. [00:09:06] Speaker 02: And that restaurant doesn't feature a California-style burger, but in the similar way in which my client is promoting its menu just generally. [00:09:13] Speaker 02: We just promote burgers and the health aspects of those. [00:09:17] Speaker 03: I mean, I guess what I'm wondering is why isn't this case more like a sushi place called California Roll, right? [00:09:26] Speaker 03: Yes, California. [00:09:27] Speaker 03: That's a state of mind. [00:09:29] Speaker 03: But now there's something out there in the marketplace that people recognize as a type of sushi roll. [00:09:39] Speaker 03: And it's a California roll. [00:09:42] Speaker 03: So I think everybody in the room agrees that, sorry, you can't get a registration for California roll for a Japanese restaurant. [00:09:52] Speaker 02: Right, so the cases that have come out to discuss the descriptiveness of a restaurant name in the context of that name also corresponding with the food item have all held that so long as the name of the restaurant is not also the name of a significant menu item or a key menu item, then that is not necessarily a descriptive use of the term for the restaurant itself. [00:10:16] Speaker 02: So for instance, in the Tarascos case that the director cites in its brief, [00:10:21] Speaker 02: The reason that the court found that churrascos was a generic term in that case was because the applicant had on its menu specifically identified the churrasco steak as a signature or feature item. [00:10:35] Speaker 02: There was also a recent TTAB decision that was issued in November 21st of this year. [00:10:40] Speaker 02: It's an unprecedented decision, but involved the mark of the salad station. [00:10:45] Speaker 02: And in that case, it was for the name of a restaurant. [00:10:47] Speaker 02: And in that case, again, the applicant had a salad bar. [00:10:51] Speaker 02: Uh, that it was promoting as having over 80 ingredient types. [00:10:57] Speaker 02: Uh, and it, the examiner also was able to put into the record 13, uh, screenshots of third party websites that had also had. [00:11:05] Speaker 00: So this makes me a little bit nervous because again, that's where I started with you is asking whether I'm supposed to look at what you're selling or whether I'm supposed to look at what you're seeking the mark for. [00:11:17] Speaker 00: You're seeking the mark for restaurant services. [00:11:20] Speaker 00: In Judge Chen's example, everybody knows what a California roll is. [00:11:24] Speaker 00: And if I was seeking a California roll for a sushi bar, maybe the sushi bar, and quite frankly, I would think most sushi bars, their primary ingredients are what, tuna or eel or whatever. [00:11:37] Speaker 00: You know, like they're, that's not, California roll isn't the signature dish of the house or the primary dish in the house. [00:11:44] Speaker 00: It's one of many pieces of well-known sushi. [00:11:47] Speaker 00: that would be offered and you would expect to find in any sushi bar. [00:11:52] Speaker 00: Yet it seems like that you're telling me that shouldn't under those circumstances be found to be descriptive. [00:11:58] Speaker 00: If it's not, if a California role is not denoted as the specialty of the house or their leading selling food item, regardless of the fact that they're seeking a mark for restaurant services, not just their particular restaurant service, I should nonetheless find that that's not descriptive. [00:12:14] Speaker 02: That's absolutely correct. [00:12:15] Speaker 02: And that's what the law says the outcome should be. [00:12:19] Speaker 02: And keep in mind that by- Where does the law state that? [00:12:22] Speaker 00: You mean because Churrasco says this is specialty of the house? [00:12:25] Speaker 02: Well, I think just because there's a food item doesn't necessarily mean that when people encounter that name as the name of the restaurant, they're immediately going to call to mind that particular food item if it's not the significant feature of that restaurant. [00:12:40] Speaker 02: And that makes sense, because by getting a registration for the restaurant at the service itself, that doesn't mean you're going to be able to prevent someone from, and let's say, take my client's case, for instance, from someone using California-style burger to describe an actual burger. [00:12:55] Speaker 00: What about using Kelly Burger to describe an actual burger? [00:12:58] Speaker 00: Is your client, if you got the registration, going to be able to prevent someone from using Kelly Burger to describe a burger? [00:13:06] Speaker 02: Possibly. [00:13:06] Speaker 02: Yes, I think so. [00:13:08] Speaker 02: I think there's some uniqueness about that. [00:13:09] Speaker 02: where, again, we would not be able to stop someone, though, from selling or saying that they are offering for sale of California-style burger. [00:13:18] Speaker 02: That's not the intention here, either, and that would not be within the scope of my client's rights. [00:13:26] Speaker 02: Are there any other questions? [00:13:28] Speaker 02: Otherwise, I know I'm into my own bottle. [00:13:29] Speaker 00: No, we'll save the rest of your time, Mr. Hickman. [00:13:40] Speaker 04: Good morning. [00:13:41] Speaker 04: May it please the court? [00:13:43] Speaker 04: The only question in this appeal is whether substantial evidence supports the board's finding that consumers would readily understand that Caliburgers describes a feature of restaurant services. [00:13:54] Speaker 04: And the evidence easily does in this case. [00:13:58] Speaker 04: It includes the Caliburger chain's own marketing materials, which, as the court observed this morning, show that the chain sells California-style burgers. [00:14:06] Speaker 04: It includes evidence of other restaurants using Cali to mean California in the context of restaurant services. [00:14:13] Speaker 04: And the evidence also includes numerous recipes and restaurant menus showing that the public is familiar with the concept of a California burger. [00:14:22] Speaker 04: Much of that evidence went uncontested before the board in this court. [00:14:25] Speaker 04: With the concept, but not with the ingredients. [00:14:29] Speaker 04: That is true, Your Honor. [00:14:29] Speaker 04: But the application here is for Cali Burger for use with restaurant services. [00:14:35] Speaker 04: restaurant services includes the food, but it also includes a broader scope of things like the atmosphere and other sort of associated. [00:14:42] Speaker 00: But that's not what you found. [00:14:43] Speaker 00: The board didn't make any fact findings that the atmosphere or otherwise was relevant to its decision. [00:14:51] Speaker 00: The board expressly limited its decision to Cali Style is a particular type of burger that is known to consumers and thus they can't get a mark on it for restaurant services. [00:15:02] Speaker 00: What am I missing? [00:15:03] Speaker 04: I don't think the board's opinion was quite as limited as your honor described. [00:15:08] Speaker 04: If we look at page six of the board's opinion, page six of the appendix. [00:15:17] Speaker 00: OK. [00:15:20] Speaker 04: So first of all, the board did make a finding that Kelly Burger is descriptive of a genre of food. [00:15:28] Speaker 04: But then the board went on and responded to the applicant's argument, to the Kelly Burger chain's argument, [00:15:34] Speaker 04: really what the term suggests is a lifestyle. [00:15:37] Speaker 04: And the board said, well, even if it does suggest a particular lifestyle, that the presence of the food. [00:15:45] Speaker 00: No, let's be clear. [00:15:47] Speaker 00: This is what it said. [00:15:47] Speaker 00: Applicant's argument that it's use of Cali as merely a reference to a California lifestyle is unavailing. [00:15:53] Speaker 00: So that's what the board held. [00:15:54] Speaker 00: The board held it's not a reference to a lifestyle. [00:15:58] Speaker 00: Right? [00:15:58] Speaker 00: Am I missing something? [00:15:59] Speaker 04: Well, if we look further down the page, for instance, the board cites [00:16:04] Speaker 04: cites some of its own cases, and there are parentheticals where the board says the fact that a term, and this is the Rice-Mart case, for instance, the board says the fact that a term may have different meanings in other contexts is not controlling on the question of descriptiveness. [00:16:19] Speaker 00: In other contexts, right? [00:16:22] Speaker 00: That's in other contexts. [00:16:23] Speaker 00: Not that the word may have different meanings in the same context wouldn't matter. [00:16:28] Speaker 04: And then I'm reading further down the page, going to the start of the next paragraph at the bottom of the page. [00:16:35] Speaker 04: The board says the evidence also shows that the applicants' restaurants feature California burgers on their menus. [00:16:43] Speaker 04: This is all against the backdrop, as the board acknowledged or found at the beginning of the opinion, which is undisputed, is that the application is for use. [00:16:52] Speaker 04: This is for a term for use with restaurant services. [00:16:55] Speaker 04: So the entire analysis is conducted against the backdrop of restaurant services, not just burgers themselves. [00:17:04] Speaker 04: And so I think in this opinion, the board recognized that it's not just the food, but it's also the context in which it's being marketed. [00:17:15] Speaker 04: Really? [00:17:17] Speaker 00: Where do you see that? [00:17:18] Speaker 00: Where did the board recognize that? [00:17:20] Speaker 00: Because it says it features California burgers at its restaurant. [00:17:23] Speaker 00: That's somehow now marketing is part of the criteria that's being taken into account. [00:17:30] Speaker 00: I'm really baffled by your argument. [00:17:31] Speaker 00: I feel like you're a moving target right now. [00:17:34] Speaker 00: I actually thought your brief was quite good, and you're not actually sticking to it. [00:17:38] Speaker 00: I'm not sure where you're going. [00:17:41] Speaker 04: Well, I think in the brief, I think that we argue that A, yes, certainly the board's finding that the term would be descriptive with respect to a genre of food is well-supported. [00:17:56] Speaker 00: But also- OK, can I ask you to explain something [00:18:02] Speaker 00: to me, in the final office action by the examiner, it cites a piece of prior art that it's relying on. [00:18:10] Speaker 00: I don't have the examiner thing at my fingertips. [00:18:17] Speaker 00: Maybe my clerk can forward me. [00:18:18] Speaker 00: The page is on in the appendix, but at page four of the blue brief, it discusses it. [00:18:23] Speaker 00: And in page four of the blue brief, [00:18:28] Speaker 00: This is the portion of the examiner's final office action where he's citing the evidence that's at issue. [00:18:39] Speaker 00: And in particular, what I want to direct your attention to is footnote five in the blue brief, which is supposedly a menu for Freddy's steak burger California style. [00:18:54] Speaker 00: Now this comes directly [00:18:55] Speaker 00: from the examiner's, oh, she found the site for me, A23. [00:18:59] Speaker 00: A23 is, is that the site for the, no? [00:19:04] Speaker 00: Oh, sorry. [00:19:05] Speaker 00: Wrong. [00:19:06] Speaker 00: Find the site. [00:19:07] Speaker 00: Find the right site, Claire. [00:19:08] Speaker 00: So it's in the blue brief, but it's also in the examiner's office section, which is where this blue brief is citing from. [00:19:13] Speaker 00: So look at the blue brief at page four. [00:19:15] Speaker 00: Do you have that? [00:19:17] Speaker 04: I'm sorry, page four, Your Honor? [00:19:18] Speaker 00: Of the blue brief, yeah. [00:19:19] Speaker 00: Oh, no. [00:19:20] Speaker 04: A4. [00:19:20] Speaker 00: This is what I'm looking at. [00:19:22] Speaker 00: Okay, I'm sorry. [00:19:23] Speaker 00: A4. [00:19:23] Speaker 00: I'm looking at A4, my bad. [00:19:25] Speaker 00: My bad. [00:19:26] Speaker 00: Board opinion, A4. [00:19:33] Speaker 00: So on page A4, the board opinion, at the top it tells me that it's relying on an article about California burgers from Freddy's Restaurant that sells a Freddy's California steak burger. [00:19:46] Speaker 00: See that, footnote five? [00:19:47] Speaker 04: I do. [00:19:48] Speaker 00: Now I'd like you to track footnote five and tell me what the citation is for this supposed piece of evidence. [00:19:56] Speaker 00: No, the website. [00:19:57] Speaker 00: Just go ahead and read it out loud. [00:20:01] Speaker 04: I'm sorry. [00:20:01] Speaker 04: You want me to read the website itself? [00:20:03] Speaker 00: Yeah. [00:20:04] Speaker 00: I want you to tell me what Footnote 5 says is where I can locate this piece of evidence that the board and the examiner both relied on. [00:20:12] Speaker 00: Where can I locate it? [00:20:14] Speaker 00: Because it's not in the appendix and it's not in the record either, by the way. [00:20:17] Speaker 00: But they gave me a very helpful website. [00:20:19] Speaker 00: What is that very helpful website? [00:20:21] Speaker 04: I'm wondering if this is a joke. [00:20:22] Speaker 04: Oh, www.examiner.com? [00:20:24] Speaker 00: Yeah. [00:20:25] Speaker 00: Is that a joke? [00:20:26] Speaker 00: Is it meant to be funny? [00:20:27] Speaker 04: I don't think so. [00:20:30] Speaker 00: Well, really? [00:20:31] Speaker 00: Because all I could think of when I'm typing in www.examiner.com is please don't have porn pop up on my government computer while I'm typing it in. [00:20:41] Speaker 00: Because I knew for sure that was not a government website. [00:20:44] Speaker 04: Right? [00:20:45] Speaker 04: Understood. [00:20:45] Speaker 00: Nor is it a reference to Freddy's steak burger California style. [00:20:50] Speaker 00: This came from all the way back. [00:20:51] Speaker 00: I'd like you to take this back to the PTO in all seriousness. [00:20:54] Speaker 00: And I'd like you to tell them it's not funny. [00:20:56] Speaker 00: It's not funny. [00:20:57] Speaker 00: This is important. [00:20:58] Speaker 00: I want to see this piece of evidence that was supposedly relied on by both the examiner and the board. [00:21:02] Speaker 00: I pulled up every piece of evidence in this case. [00:21:05] Speaker 00: That piece of evidence was not only not available, but the best I can tell is somebody thought it would be funny to claim that piece of evidence is available for my viewing at www.examiner.com, which may not surprise you to know is not a government website that has the final office action or any other sort of website with Freddie Steakburger, California style information. [00:21:24] Speaker 01: Where's the final office section in the record? [00:21:28] Speaker 04: I don't believe we included the final office action in this appendix. [00:21:38] Speaker 04: It is in the certified list. [00:21:43] Speaker 01: It says it's attached to the final office action. [00:21:50] Speaker 01: It implies to me that the website is attached to the final office action. [00:21:54] Speaker 00: Page 145. [00:21:55] Speaker 00: It's not. [00:21:55] Speaker 00: It's at page 145 in the appendix. [00:22:04] Speaker 04: And so I think what's going on here is that the board typically won't, when it writes an opinion, won't attach all of the evidence that the examining attorney cited to that opinion. [00:22:14] Speaker 04: The board will simply refer back to the evidence that's attached to the final office action. [00:22:20] Speaker 04: And that's sort of the cue. [00:22:21] Speaker 00: All right. [00:22:21] Speaker 00: Well, it was just very hard for me because I couldn't find the evidence that it was supposedly referring to. [00:22:26] Speaker 00: And there is no such thing as examiner.com, which contains it. [00:22:29] Speaker 00: It says it. [00:22:30] Speaker 00: It's at the top of the page. [00:22:31] Speaker 00: I know. [00:22:32] Speaker 00: It says it at the top. [00:22:33] Speaker 01: But it's a lot more. [00:22:35] Speaker 00: It's not examiner.com. [00:22:36] Speaker 00: You've got to know about 50 other characters before you can get to this piece of evidence. [00:22:39] Speaker 00: It'd be like me telling you to find a particular little piece of straw in a haystack. [00:22:48] Speaker 01: It's the very top and tiny, tiny letters. [00:22:50] Speaker 00: Yes, but then look at all of the hashes afterwards. [00:22:53] Speaker 00: You have to know a bunch of other stuff to be able to get to it. [00:22:56] Speaker 00: I can't get to it. [00:22:58] Speaker 00: So in any event, [00:22:59] Speaker 00: But one of the things apart from that that was troubling me about the PTO's treatment in this case, which, by the way, I know in your red brief, you say quite clearly they've waived this argument. [00:23:11] Speaker 00: So you might have seen it coming. [00:23:13] Speaker 00: And you say they acquiesced in it below before the board. [00:23:17] Speaker 00: And you tell me they waived it on appeal here by not raising it in the blue brief. [00:23:20] Speaker 00: And then they didn't respond to it in the gray brief. [00:23:22] Speaker 00: So you don't have to worry. [00:23:23] Speaker 00: I get that it's waived. [00:23:25] Speaker 00: But one of the things that bothers me is how can you say a California burger, a Cali burger, is a California-style burger, and that that is descriptive of a particular type of burger, and then offer me five different pieces of evidence that describe a California burger as five different things? [00:23:44] Speaker 00: I mean, just because it would mean, if it would mean something different to every person, if people would say, well, yeah, I think that's something with avocado, and someone else would say, no, I think it's something with lettuce, tomato, and mayonnaise, and someone else would say, [00:23:54] Speaker 00: No, no, I think it's something with American cheese and grilled onions. [00:23:57] Speaker 00: Well, then it's not actually descriptive. [00:23:59] Speaker 00: That's suggestive. [00:24:00] Speaker 00: I mean, I don't know. [00:24:01] Speaker 00: I was perusing McCarthy on trademark coming in here and something like that seems to me to quite, and I realized they didn't make this argument. [00:24:08] Speaker 00: So don't worry. [00:24:09] Speaker 00: I'm not deciding the case on the basis of this argument. [00:24:11] Speaker 00: I'm just a little bit worried about the state of the law. [00:24:15] Speaker 00: If the government is of the view that it doesn't have to be descriptive of anything at all in particular, it can be. [00:24:21] Speaker 00: Because is it descriptive to the American consumer? [00:24:23] Speaker 00: And theoretically, the description should be the same, right? [00:24:26] Speaker 00: We should all view it as having similar or the same meaning? [00:24:30] Speaker 04: I think that's a fair observation in many cases. [00:24:34] Speaker 04: I think the difference here is that there is a common theme running through all the California burger menus and recipes. [00:24:44] Speaker 04: And it is something that's fresh and healthy. [00:24:46] Speaker 04: And it's something that's sort of [00:24:48] Speaker 04: Something more than just a greasy burger. [00:24:50] Speaker 00: But the board didn't say that, right? [00:24:52] Speaker 00: I actually agree with you. [00:24:54] Speaker 00: Descriptions can be an ingredient, or it can be a quality or characteristic of. [00:24:58] Speaker 00: But the board didn't go the way, did they, of that it is a burger made healthy in some fashion. [00:25:05] Speaker 00: That's what California style burger implies. [00:25:06] Speaker 00: That would have given them broader leeway, wouldn't it? [00:25:09] Speaker 00: Do you think they adopted the word California style as indicative of a characteristic [00:25:16] Speaker 00: of burgers or as you referred to it earlier somebody did a genre of burgers or something weird. [00:25:21] Speaker 00: I don't know. [00:25:22] Speaker 04: I mean the board did say genre and the board the board said that there may be some variation among the different types of California burgers but the board said that at the end of the day and it made a finding that at the end of the day [00:25:36] Speaker 04: Consumers will recognize that it is a type of food. [00:25:39] Speaker 04: And the board cited all that evidence for it. [00:25:41] Speaker 00: I know. [00:25:41] Speaker 00: It's a type of food. [00:25:42] Speaker 00: But then they cited seven pieces of evidence, no two of which agree with each other on what type of food it is, other than it's a burger. [00:25:48] Speaker 00: And that would be like saying, any time a word has burger in it, it's going to be descriptive no matter what the word in front of it is. [00:25:55] Speaker 00: The whole ball of wax here is Cali or California. [00:25:58] Speaker 00: And what does that mean? [00:25:59] Speaker 00: And the seven different pieces of evidence located on page four of the board, opinion four and spanning over to five, [00:26:06] Speaker 00: each indicate something different. [00:26:08] Speaker 00: I mean, one person is claiming it's a turg burger, yummy blend of avocados and tomatoes. [00:26:12] Speaker 00: Another person is claiming, not surprisingly, in Allentown, Pennsylvania, and I threatened my clerks that I would start singing a song that uses that word during court here. [00:26:21] Speaker 00: I'll decline to do so. [00:26:23] Speaker 00: But I did want to put it out there that it was a possibility. [00:26:26] Speaker 00: In Allentown, Pennsylvania, it's what? [00:26:28] Speaker 00: Lettuce, tomato, and mayonnaise. [00:26:30] Speaker 00: That actually doesn't surprise me. [00:26:32] Speaker 00: They're probably hard to get. [00:26:33] Speaker 00: Avocados. [00:26:37] Speaker 00: If the port had said a California burger isn't something with avocados, because I think there's some testimony somewhere in this record that says, oh, anything California's got avocados in it. [00:26:46] Speaker 00: But it offered me instead seven different examples, which are seven different examples that share only one theme. [00:26:52] Speaker 00: They all have a burger in them. [00:26:55] Speaker 04: I would say that they have a burger, and it's something that's different. [00:26:57] Speaker 00: Some don't have lettuce. [00:26:58] Speaker 00: Some don't have lettuce. [00:27:00] Speaker 00: Like the Morningstar one doesn't have lettuce. [00:27:03] Speaker 00: Some have avocados. [00:27:04] Speaker 00: Some don't. [00:27:06] Speaker 04: I think this is where, in trademark cases, some of these determinations really are just very fact-specific in why we do have the substantial evidence standard of review in these cases. [00:27:15] Speaker 04: And yes, in some cases, I would agree that the farther away you get from any single item and the more variety there is, the harder sell it's going to be for a descriptiveness refusal. [00:27:30] Speaker 00: Isn't that the line? [00:27:31] Speaker 00: I mean, that's the thing. [00:27:32] Speaker 00: I'm trying to figure out where the line is between descriptive and suggestive. [00:27:35] Speaker 00: And that to me is where the line is, right? [00:27:38] Speaker 00: The harder it is to call to mind something specific, the less likely it is to be descriptive of a specific thing. [00:27:45] Speaker 00: True. [00:27:45] Speaker 04: But I think on the trademark continuum, there really are no bright line rules. [00:27:53] Speaker 04: And it is so incremental. [00:27:55] Speaker 04: And it really does turn on the evidence in every specific case. [00:28:00] Speaker 04: And so I think the best I can say is that the line between suggestive [00:28:04] Speaker 00: I think the best you can say in this case is it wasn't raised, and it was in fact clearly affirmatively waived. [00:28:09] Speaker 04: Well, it was absolutely waived for sure. [00:28:11] Speaker 04: I do think there is substantial evidence there, but in any event, it was absolutely waived. [00:28:17] Speaker 03: But just getting to where is the line drawing for descriptiveness and suggestiveness for something like this? [00:28:26] Speaker 03: I mean, if the mark was just burger, [00:28:29] Speaker 03: Well, people can put a million different things on a burger, but we would all say that's generic. [00:28:34] Speaker 00: How about a Chen burger? [00:28:36] Speaker 00: A Chen burger. [00:28:37] Speaker 00: It would call to mind some sort of Asian topping, I think. [00:28:41] Speaker 03: I know what a Moore burger calls to mind. [00:28:44] Speaker 00: A lot of fat. [00:28:45] Speaker 00: A lot of fat and a Moore burger. [00:28:47] Speaker 00: It is not a healthy burger. [00:28:49] Speaker 04: I'm out of time, if I could just finish. [00:28:53] Speaker 04: Responding to Judge Chen's question. [00:28:57] Speaker 03: The word burger is generic, but now, you know, California burger, maybe there's a lot of variation in what constitutes the recipe for California burger. [00:29:12] Speaker 03: So maybe we can't really put a finger on it. [00:29:16] Speaker 03: Maybe that makes it suggestive. [00:29:18] Speaker 03: I mean, I'd like to hear your thoughts on that. [00:29:25] Speaker 04: you can put a finger on it here because what the evidence shows is that... Let's assume you can't. [00:29:31] Speaker 03: Let's assume that the only thing you can put your finger on is that there's a beef patty between two buns and then everything else is a free-for-all. [00:29:41] Speaker 04: I think that's a harder sell for a descriptiveness refusal. [00:29:46] Speaker 04: It would depend on [00:29:47] Speaker 04: the specific evidence and facts of that case. [00:29:49] Speaker 04: At the end of the day, it all comes down to consumer perception and what do consumers understand. [00:29:55] Speaker 04: Off the top of my head, I can't think of products where there's so much variety in a type of product that consumers still understand it to be a particular thing. [00:30:10] Speaker 04: But I think this is one good example of it. [00:30:12] Speaker 04: There may be others out there. [00:30:13] Speaker 04: And so I think that's why [00:30:15] Speaker 04: At the end of the day, the board is entitled to deference on these determinations. [00:30:19] Speaker 04: And as long as there is a record that reasonably supports what the board did, then it should be affirmed. [00:30:29] Speaker 00: Thank you. [00:30:29] Speaker 00: Thank you very much, Mr. Hickman. [00:30:30] Speaker 00: And thank you for answering my off-brief questions. [00:30:34] Speaker 00: Mr. Walls? [00:30:44] Speaker 02: Thank you. [00:30:45] Speaker 02: The director made the argument that there is evidence actually to support the board's decision that Cali is a descriptive term. [00:30:53] Speaker 02: And I think it's to the contrary. [00:30:55] Speaker 02: I think in this case, what the board did was substitute its opinion for what Cali would be a descriptive term, as opposed to relying and grounding that finding on the evidence. [00:31:06] Speaker 02: I mean, what the board relied on to find that Cali was descriptive were [00:31:11] Speaker 02: Really four pieces of evidence. [00:31:13] Speaker 02: We have two foreign articles, the SiriusEats.com article, the CityWeekend.com article, all of which just simply reference California style. [00:31:21] Speaker 02: They do not go into detail about what a California style burger actually means. [00:31:26] Speaker 02: The third piece of evidence was the press sub page from my client's website, which again, simply references California style within some abstract headings. [00:31:36] Speaker 00: which in the Bayer decision... Because your argument, as I understand it, is Kelly Burger is not really referencing a California-style burger. [00:31:45] Speaker 00: Even if a California-style burger is a specific thing, it's referencing something different. [00:31:51] Speaker 02: It's trying to convey the primary message about the healthy aspects of those food items, not that it's a burger with a particular... But the board had that [00:32:03] Speaker 01: concession or whatever you want to call it by your representative, Ms. [00:32:11] Speaker 01: Nunez, that it was. [00:32:16] Speaker 01: They relied on it as evidence. [00:32:20] Speaker 02: Well, they relied on the reference to California style, and they ignored the sentence that followed it, much like they've ignored the context in other pieces of evidence as well. [00:32:31] Speaker 02: If you look at the franchising.com website as well, my client does not promote in that particular piece of evidence, a particular style or a burger. [00:32:41] Speaker 02: It talks about the preceding that Cali-inspired language as the finest and freshest Cali-inspired burgers and chicken sandwiches. [00:32:50] Speaker 02: We're not signaling out any particular menu item, which is what is required in order to find that a menu item is substantial, it's significant. [00:32:59] Speaker 02: and therefore possibly would render the name of a restaurant descriptive. [00:33:04] Speaker 02: So again, not looking at the context in which the California-style words are being used is what the board relied on. [00:33:11] Speaker 02: And they should have been looking at the context, which would have completely changed how this evidence would have been viewed. [00:33:18] Speaker 03: Caliburgers, the chain is expanding throughout the United States now. [00:33:22] Speaker 03: Is that right? [00:33:24] Speaker 02: They have been expanding, right. [00:33:25] Speaker 02: They launched their first location in, I believe, 2015. [00:33:29] Speaker 03: So I assume if this doesn't work out for you, you could still go under 2F for secondary meaning, like California Pizza Kitchen did. [00:33:40] Speaker 02: That certainly would be an option. [00:33:43] Speaker 02: But as you know, I mean, claiming a 2F has a negative impact on the scope of your rights. [00:33:48] Speaker 02: It's an admission, obviously, that the mark's descriptive. [00:33:50] Speaker 02: So conceptually, you start with a weaker mark. [00:33:54] Speaker 02: Whereas in my position is that Cali, being combined with burger, Cali is a suggestive term. [00:33:59] Speaker 02: combination with burger creates an incongruous meaning. [00:34:02] Speaker 02: It's an inherently distinctive mark, which means that from conceptual strength perspective, we have a strong mark. [00:34:07] Speaker 00: If you were seeking Kelly burger for a California style burger, do you think it should be allowed? [00:34:13] Speaker 02: Kelly burger for a California style burger. [00:34:15] Speaker 00: Yes. [00:34:15] Speaker 00: You weren't seeking it for restaurant services, but you were instead, because a lot of your argument hinges on what it means that you're seeking it for restaurant services. [00:34:23] Speaker 00: If you were seeking it for a [00:34:25] Speaker 00: type of burger with a slice of avocado and some lettuce and some bean sprouts or something. [00:34:30] Speaker 00: Do you think you should be able to get that, or do you think that would be descriptive of exactly the type of burger you're seeking to apply? [00:34:36] Speaker 02: I would say, assuming the record, which doesn't exist here, could actually demonstrate that the relevant consumer view in Cali would immediately recognize it as the abbreviation for California in connection with the style of burger, I would say no. [00:34:50] Speaker 00: Wait. [00:34:53] Speaker 00: Is your argument that Cali doesn't even stand for California? [00:34:55] Speaker 00: That people don't see Cali and think of California? [00:34:59] Speaker 00: Your argument was it's California style lifestyle. [00:35:01] Speaker 00: So your argument wasn't that it didn't call to mind California. [00:35:04] Speaker 01: And there's plenty of evidence about Cali. [00:35:06] Speaker 02: Well, there's four pieces of evidence about CALI, but it's all in the context of industries that are irrelevant to the quick service premium. [00:35:14] Speaker 00: But I didn't understand your argument to be a rejection of the idea that CALI stood for the word California or that people would understand it or think it to mean California. [00:35:22] Speaker 00: Is that your argument? [00:35:23] Speaker 00: I just want to make sure I understand your argument. [00:35:24] Speaker 02: No. [00:35:25] Speaker 02: So in the abstract, people understand that CALI is the abbreviation for California. [00:35:30] Speaker 02: Absolutely. [00:35:31] Speaker 02: But the third abbreviation test requires that we consider that abbreviation in the context [00:35:36] Speaker 02: how the mark is actually being used. [00:35:38] Speaker 02: In this case, the government's argument that it's being used in connection with a particular type of amber. [00:35:46] Speaker 00: OK. [00:35:47] Speaker 00: Thank you. [00:35:48] Speaker 00: I thank both counsel for their arguments today. [00:35:50] Speaker 00: The case is taken under submission. [00:35:52] Speaker 00: I'm now hungry. [00:35:54] Speaker 00: Thank you very much. [00:35:59] Speaker 03: All rise. [00:36:01] Speaker 03: The Honorable Court is adjourned until tomorrow morning at 10 o'clock AM.