Mere Descriptiveness: The Board relied on dictionary definitions (e.g., “[a]n establishment of a specific kind, especially one where people meet for eating, drinking, or entertainment”) and media references in finding the proposed mark to be merely descriptive. It concluded that the mark “”immediately conveys the idea of a business establishment that provides live musical performances, shows, and concerts, and nightclub, restaurant and bar services.”
Appellant argued that, even if the mark is descriptive of its services, it is registrable as a double entendre because it is “a playful or ironic reference to ‘prison’ instead of its services.” The Board, however, found insufficient evidence that consumers would associate “the concept of ‘the joint’ as a prison with [Appellant’s] entertainment services, nightclub services, restaurants, bars, or catering services.” The court agreed, concluding that substantial evidence supported the Board’s finding that THE JOINT is not a double entendre for the involved services.
Appellant argued that the Board required an impossible level of evidence, that its other marks were used sporadically, and that the Board erred in calling into question which marks garner public attention.
The court disagreed with Appellant on all counts. “The Board correctly determined that a high level of proof was required to show acquired distinctiveness,” and therefore it was not error to challenge appellant’s sales and advertising evidence, particularly in light of the overlap of appellant’s various marks. “Given the prominence of ‘Hard Rock’ and ‘Hard Rock Hotel & Casino’ in the evidence submitted, and the relationship of those marks to the applied-for services,” the court was not persuaded that those marks are of secondary significance.
Therefore, the court concluded that the Board’s finding that appellant failed to prove acquired distinctiveness was supported by substantial evidence.
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TTABlog comment: What do you think? Does appellant have protectable rights at least in Las Vegas? Could it stop someone from opening a restaurant down the strip (or street) from the Hard Rock Casino?
Text Copyright John L. Welch 2020.