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  • Writer's pictureDavid Baker

Can anyone own the TACO TUESDAY trademark?

Nope. Well, actually, yes. But it's complicated.

In a recent Trademark Trial and Appeal Board (the “TTAB”) ruling, the TTAB determined that TACO TUESDAY cannot function as a trademark for beer.

As reflected in the TTAB decision,

Monday Night Ventures LLC applied to register TACO TUESDAY as a trademark for “beer,” submitting a picture of a menu displaying this term as a point-of-sale specimen of use, and later providing a picture of a can of beer displaying this term.

The Examining Attorney refused registration on the ground that the proposed mark failed to function as a mark because it is a message widely used by a variety of sources to refer to a well-recognized cultural phenomenon where persons consume tacos and beverages, including beer, on Tuesdays. The Applicant appealed to the Trademark Trial and Appeal Board (TTAB).

On appeal, the TTAB upheld the refusal of registration.

Of import, the TTAB did not refuse the trademark due to it being descriptive. The phrase absolutely is descriptive when used to sell tacos on Tuesday, of course, but that isn’t the case as applied to the packaging for beer. Instead, the TTAB’s refusal on the mark is due to it being generic and broadly used in general.

You might have concluded that TACO TUESDAY is suggestive of the type of event to which it refers. A suggestive mark is registrable. But in this case, the TTAB found that the evidence of widespread use of this term in general, and for beer in particular, tipped the scale to the failure to function side. As a result, TACO TUESDAY appears to be available for use on beer by any brewery.

However, the phrase “Taco Tuesday” is not available for use by just anyone to refer to tacos being sold for consumption on Tuesdays. If you want to use it that way, then you’re going to have to obtain the permission of the owner of the federal registration of TACO TUESDAY, Taco John’s, the mediocre fast-food taco joint based in Sheridan, Wyoming.

Why It Matters.

Aside from the issue of whether or not anyone can own a phrase such as TACO TUESDAY, it is important for trademark owners to know that the TTAB) is a part of the United States Patent and Trademark Office (USPTO) that handles various proceedings related to trademarks. It is an administrative tribunal that has the authority to determine the rights to federally registered trademarks and service marks, including canceling or refusing to register a trademark or service mark.

The TTAB is responsible for hearing and deciding various disputes that arise during the trademark registration process. This includes opposition proceedings, which are initiated by third parties who believe that a trademark application should not be granted, and cancellation proceedings, which are initiated to challenge the validity of an existing trademark registration.

In addition to these proceedings, the TTAB also handles appeals of decisions made by USPTO examiners regarding the registration of trademarks. These appeals can be filed by applicants who are dissatisfied with the decisions made by the examiners.

Overall, the TTAB plays an important role in ensuring the integrity of the trademark registration process in the United States.

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