The Board granted this petition for cancellation of a registration for the mark CHEESE ZOMBIES for “filled bakery products” [CHEESE disclaimed], finding the term to be merely descriptive of the goods and lacking acquired distinctiveness, but not generic. Defendant Dumploads offered the results of a survey from Survey Monkey, but the Board rejected that evidence on multiple grounds. Patty’s Original Cheese Zombies, Inc. v. Dumploads On US, Cancellation No. 92058966 (December 20, 2016) [not precedential].
Defendant’s president, Mr. Giacobazzi, designed the survey and commissioned Survey Monkey to run it. He purchased an “audience” from Survey Monkey. He had designed no other surveys in the past eight years, he was not disclosed as an expert witness, there was no indication of any experience in surveys, nor did he have the skills to testify as an expert. Mr. Giacobazzi did not observe or oversee the survey and was not familiar with how Survey Monkey conducts its business. The Board concluded that the survey results constituted hearsay and it refused to consider them.
Genericness: The Board found the genus of goods to be “filled bakery products,” and the relevant public to be ordinary consumers who purchase and eat filled bakery products. The Board proceeded, as required, to analyze the proposed mark as a whole.
As a first step, it is appropriate to look to dictionary definitions of the constituent words (cheese is cheese, a zombie is a zombie). There was no dictionary definition of “cheese zombie.”
Ms. Riley, former teacher and administrator at Mt. Diablo Unified School District (California), testified that “cheese zombies” were served at schools in her district for decades. She describe a cheese zombie as a “wonderful puff of pastry around this nice gooey little narrow thing of cheese.” They were very popular, and former students would even come back to buy them.
Plaintiff submitted media references to “cheese zombies,” newspaper listings of school menus in California, Washington State, and Missouri, and at least eight on-line recipes. Defendant’s president, Mr. Giacobazzi, testified that when he went to Foothill Middle School, “cheese zombies” were on the menu.
Viewing the evidence as a whole, the Board did not find that relevant consumers would understand “cheese zombies” as a type of “filled bakery products,” including “a loaf of bread with cheese inside.” In short, the term is not generic for those goods.
Mere Descriptiveness: The Board found, however, that the phrase “cheese zombies” immediately conveys an idea of the characteristics of the goods, i.e., they are a type of baked product filled with cheese. Indeed, “cheese zombies” is almost always used to describe the same type of baked item filled with cheese. Therefore the mark is merely descriptive.
Even if respondent had claimed acquired distinctiveness under Section 2(f), it was apparent that its use was not substantially exclusive, and so the claim must fail.
The Board therefore granted the petition for cancellation on the ground of mere descriptiveness under Section 2(e)(1).