Kahiki Foods, Inc.

This Opinion is not a
Precedent of the TTAB

Mailed: July 29, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Kahiki Foods, Inc.
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Serial No. 87444355
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Roger A. Gilcrest of Ice Miller LLP,
for Kahiki Foods, Inc.

Laura Golden, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.

_____

Before Zervas, Bergsman and Goodman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Kahiki Foods, Inc. (“Applicant”) seeks registration on the Principal Register of the

mark PANKOCRISP (in standard characters) for

Oriental and Pacific rim cuisine prepared foods, namely,
frozen and chilled entrees consisting primarily of meat,
fish, poultry or vegetables; frozen tempura kits consisting
primarily of meat, fish poultry or vegetables; prepared stir-
fry meals comprised primarily of meat and vegetables;
prepared oriental and pacific rim cuisine meals comprised
primarily of meat and containing some rice; breaded
chicken for use in oriental and Pacific rim cuisine prepared
Serial No. 87444355

foods, namely, frozen and chilled entrees consisting of
chicken, in Class 29. 1

The Trademark Examining Attorney has refused registration of Applicant’s

proposed mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on

the ground that it is merely descriptive of Applicant’s identified goods.

When the refusal was made final, Applicant appealed and requested

reconsideration. 2 The Examining Attorney denied the request for reconsideration,

and the appeal resumed. We affirm the refusal to register.

I. Evidentiary objection

Applicant attached to its appeal brief copies of third-party registrations

incorporating the word “Crisp.” The Examining Attorney objects to the third-party

registrations on the ground that they were not timely made of record. The record in

an application file should be complete prior to the filing of an appeal. Trademark Rule

2.142(d), 37 C.F.R. § 2.142(d). Applicant, in its Reply Brief, asserts that the

Examining Attorney is attempting to ignore relevant evidence, that the late

evidentiary submission is not prejudicial, and that the third-party registrations are

probative. Applicant does not address why it did not, or could not, have timely

1 Application Serial No. 87444355 was filed on May 10, 2017, based on Applicant’s claim of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b).

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board’s TTABVUE docket system.

2 1 and 5 TTABVUE.

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Serial No. 87444355

submitted the copies of the third-party registrations, nor did it address why it did not

seek a remand so it could file the registrations.

Because the third-party registrations were not timely filed and because Applicant

did not provide any mitigating circumstances for its failure to comply with the rules

of practice, the Examining Attorney’s objection is sustained and we will not consider

the registrations. See In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB

2018); In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A, 109 USPQ2d 1593, 1596 (TTAB

2014).

II. Mere Descriptiveness

A. Applicable Law

Section 2(e)(1) of the Trademark Act precludes registration of a mark on the

Principal Register that, when used in connection with an applicant’s goods or

services, is merely descriptive of them. 15 U.S.C. § 1052(e)(1). “A mark is merely

descriptive if it immediately conveys information concerning a feature, quality, or

characteristic of the goods or services for which registration is sought.” Real Foods

Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1373 (Fed. Cir.

2018) (quoting In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir.

2017)). We “must consider the mark as a whole and do so in the context of the

goods or services at issue.” DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd.,

695 F.3d 1247, 103 USPQ2d 1753, 1757 (emphasis added); In re Calphalon, 122

USPQ2d 1153, 1162 (TTAB 2017). Indeed, “[t]he question is not whether someone

presented with only the mark could guess what the goods or services are. Rather, the

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question is whether someone who knows what the goods and services are will

understand the mark to convey information about them.” DuoProSS, 103 USPQ2d at

1757 (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)).

“The major reasons for not protecting such [merely descriptive] marks are: (1) to

prevent the owner of a mark from inhibiting competition in the sale of particular

goods; and (2) to maintain freedom of the public to use the language involved, thus

avoiding the possibility of harassing infringement suits by the registrant against

others who use the mark when advertising or describing their own products.” In re

Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1090 (Fed. Cir. 2005) (quoting In

re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217 (CCPA 1978)).

It is the examining attorney’s burden to show that a term is merely descriptive of

an applicant’s goods or services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010

(Fed. Cir. 1987). Once a prima facie case is established, the burden of rebuttal shifts

to Applicant. Id.

The Examining Attorney contends that PANKOCRISP is merely descriptive

because it “describes characteristics or features of applicant’s goods, namely, that

applicant’s prepared foods, meal kits, and breaded chicken products include panko,

which makes the food crisp.” 3 Applicant argues to the contrary that PANKOCRISP

is fanciful or suggestive because it is a composite mark that, as whole, does not

directly or immediately describe the qualities, characteristics, functions or purpose of

3 Examining Attorney’s Brief (9 TTABVUE 4).

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Appellant’s goods.” 4

B. Evidence of record

The word “Panko” is defined as “a type of sweet white breadcrumb.” 5 The word

“Crisp” is defined, inter alia, as “food that is crisp is pleasantly hard, or has a

pleasantly hard surface.” 6 Bread crumbs are used to make “a crisp and crunchy

covering for fried foods.” 7

Purveyors of panko advertise that their products make crispy products. For

example,

•Target.com sells Market Pantry Panko Bread Crumb advertising that users

“[s]prinkle these crispy crumbs on the top of casseroles and mac and cheese or

use them to create a lightweight breading for your favorite fried foods.” 8

4 Applicant’s Brief, pp. 4-5 (7 TTABVUE 5-6).
5 COLLINS ENGLISH DICTIONARY (collinsdictionary.com/English/panko) attached to the
August 9, 2017 Office Action (TSDR 5); see also ENGLISH OXFORD LIVING DICTIONARY
(en.oxforddictionaries.com/definition/us/panko) attached to the March 13, 2018 Office Action
(TSDR 7) (“(in Japanese cooking) breadcrumbs with a light, flaky texture, typically used as
a coating for fried or baked food.”).
6Id. at TSDR 8; see also MERRIAM-WEBSTER (merriam-webster.com/dictionary/crisp attached
to the March 13, 2018 Office Action (TSDR 13) (“desirably firm and crunchy”); ENGLISH
OXFORD LIVING DICTIONARY (en.oxforddictionaries.com/definition/us/crisp) attached to the
March 13, 2018 Office Action (TSDR 14) (“(of a substance) firm, dry, and brittle, especially in
a way considered pleasing or attractive. ‘crisp bacon’”); The American Heritage Dictionary of
the English Language (adhdictionary.com/word/search/html?q=crisp) (TSDR 15) (“firm but
easily broken or crumbled; brittle crisp potato chips”).
7 “Bread crumbs,” Wikipedia.org attached to the March 13, 2018 Office Action (TSDR 5).
8 March 13, 2019 Office Action (TSDR 8).

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•Vitacost.com sells Kikkoman Panko Bread Crumbs advertising their unique

product is “made from bread that has been custom baked to make airy, crispy

crumbs.” 9

•Walmart.com sells Progresso Panko Crispy Bread Crumbs. 10

•Tyson (tyson.com) advertises that its TYSON Panko Chicken Nuggets are

“[c]rispy on the outside, juicy on the inside.” 11

Many recipes refer to the “crispy” quality of panko bread crumbs. For example,

• “Walnut and Panko Crisp Fish Filets.” 12

•“Mixed Salad with Hoisin Vinaigrette and Crisp Panko Chicken.” 13

•“Crisp Panko Chicken Cutlets.” 14

•“Crisp Panko Chicken Cutlets W/Onkatsu Sauce.” 15 One person posted a

comment about the recipe stating that “I love the crispiness [of] the panko.”

• “Sweet and Sour Pork Salad with Crisp Panko Breadcrumbs.” 16

9 Id. at TSDR 9.
10 Id. at TSDR 10.
11 Id. at TSDR 12.
12Fareway.com attached to the September 24, 2018 Denial of Request for Reconsideration
(4 TTABVUE 19).
13 MyRecipes.com attached to the March 13, 2018 Office Action (TSDR 21).
14 FineCooking.com attached to the March 13, 2018 Office Action (TSDR 22).
15 GeniusKitchen.com attached to the March 13, 2018 Office Action (TSDR 23).
16 3.NHK.or.jp attached to the September 24, 2018 Denial of Request for Reconsideration
(4 TTABVUE 11). While this website has a Japanese URL, the recipe is in English and
appears to be directed to consumers interested in Japanese culture. We consider the website
for what limited probative value it may have.

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• “Panko Chicken Wings – How to Make Crispy Deep fried Panko Chicken

Wings at Home!!!” If you follow the recipe, the author writes that you will have

“a batch of amazingly crisp panko chicken wings.” 17

• “Homemade Crispy Baked Fish Sticks”

But as far as fish sticks go, we can do better.

Enter: flaky cod covered in golden crisp panko bread
crumbs. 18

Finally, food writers associate panko with crispiness. For example,

•Jessica Levinson, “Panko. The Better Breadcrumb” (jessicalevinson.com)

(September 30, 2010)

•Panko is a Japanese breadcrumb made from bread
without crusts. It has a crispier, airier texture than most
types of breadcrumbs

•Panko stays crisp after cooking unlike other types of
breading which can get soggy. 19

•“What’s the Difference Between Panko and Breadcrumbs? (TheKitchen.com)

(April 20, 2015)

Panko has a light, airy, and delicate texture that helps it
crisp as it cooks. The texture of panko makes it especially
wonderful for fried foods because it absorbs less oil than
breadcrumbs, keeping food more crisp and crunchy. 20

17 Whats4Chow.com attached to the September 24, 2018 Denial of Request for
Reconsideration (4 TTABVUE 12).
18 KillingThyme.com attached to the September 24, 2018 Denial of Request for
Reconsideration (4 TTABVUE 17).
19 September 24, 2018 Denial of Request for Reconsideration (4 TTABVUE 5).
20 September 24, 2018 Denial of Request for Reconsideration (TSDR 5). This website was
illegible in the TTABVUE database; however, it was barely legible through the TSDR
database.

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•“The Benefits of Authentic Panko” (UpperCrustent.com)

Today, Authentic Panko is still revered for its delicious
flavor and crispy texture. … the unique crispy texture of
Authentic Panko can even create great faux-fried foods by
lightly spraying Panko coated foods with cooking oil and
then ‘oven-frying’. 21

•“Why Japanese Bread Crumbs (Panko) are Better than American Bread

Crumbs” (Umami-Insider.com) (September 1, 2017)

Panko is the Japanese version of bread crumbs. Boasting
more flavor and crispiness than traditional bread crumbs,
many health advocates say that panko is also healthier
than Western bread crumbs.

* * *

Although slightly larger they are also lighter than Western
bread crumbs, stay crispier longer, and contain fewer
calories and salt. Because of their coarse shape, they also
absorb less grease than Western bread crumbs which helps
to maintain their crispiness and also means you ultimately
consume less grease as well. 22

•“Panko Crumbs and its ingredients and how [it] is different from

breadcrumbs? [sic]” (pogogi.com) (July 22, 2014)

As a result, panko crumbs can make your cooking crispier
and crunchier, depending on how [you] use them. …

If you dredge your food in panko crumbs before frying, the
end result will be a crisp and light fried coating. …

Panko crumbs make a wonderful crisp topping for
casseroles. …

21 September 24, 2018 Denial of Request for Reconsideration (4 TTABVUE 7).
22 September 24, 2018 Denial of Request for Reconsideration (TSDR 7). This website was
illegible in the TTABVUE database; however, it was barely legible through the TSDR
database.

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You can search for panko crumbs in local grocery stores
and Asian markets. The ingredient is becoming more and
more popular with each day. This is largely attributed to
its crispy, light texture. 23

•“What are Panko Bread Crumbs?” (SpendWithPennies.com) (December 7,

2017)

Panko bread crumbs are the perfect crunchy addition to
casseroles, fried foods, and anything that you want to add
a crispy crust to! 24

C. Analysis

There is no dispute that PANKOCRISP contains one term, “PANKO,” that is

descriptive. The issue is whether adding another descriptive term, “CRISP,” renders

the applied-for mark, taken as a whole, suggestive or merely descriptive. “[A]

suggestive mark requires imagination, thought and perception to reach a conclusion

as to the nature of the goods, while a merely descriptive mark forthwith conveys an

immediate idea of the ingredients, qualities or characteristics of the goods.”

DuoProSS v. Inviro, 103 USPQ2d at 1755.

In considering a mark as a whole, the Board may weigh the
individual components of the mark to determine the overall
impression or the descriptiveness of the mark and its
various components. … [I]f … two portions individually are
merely descriptive of an aspect of appellant’s goods [or
services], the PTO must also determine whether the mark
as a whole, i.e., the combination of the individual parts,
conveys any distinctive source-identifying impression
contrary to the descriptiveness of the individual parts.

23 September 24, 2018 Denial of Request for Reconsideration (TSDR 8-10). This website was
illegible in the TTABVUE database; however, it was barely legible through the TSDR
database.
24 September 24, 2018 Denial of Request for Reconsideration (4 TTABVUE 14).

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In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004).

If each component retains its merely descriptive significance in relation to the

goods or services, then the mark as a whole is merely descriptive. Id. at 1374; In re

Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1955 (TTAB 2018). And if the mark

as a whole is merely descriptive, the omission of a space between the two components

would not diminish its descriptiveness. “It is almost too well established to cite cases

for the proposition that an otherwise merely descriptive term is not made any less so

by merely omitting spaces between the words….” Minn. Mining & Mfg. Co. v.

Addressograph-Multigraph Corp., 155 USPQ 470, 472 (TTAB 1967). See also In re

Aquamar, Inc., 115 USPQ2d 1122, 1125 (TTAB 2015); In re Carlson, 91 USPQ2d

1198, 1200 (TTAB 2009) (URBANHOUZING merely descriptive of real estate

brokerage, consultation and listing services); In re A La Vieille Russie Inc., 60

USPQ2d 1895, 1897n. 2 (TTAB 2001) (“the compound term RUSSIANART is as

merely descriptive as its constituent words, ‘Russian Art”’).

In this case, we find that the applied-for mark, PANKOCRISP, is merely

descriptive because each term in the composite mark retains its descriptive

significance. The evidence of record discussed above shows that panko coated food is

crispy. The mark, PANKOCRISP, means and engenders the commercial impression

of food products that feature the crispiness of panko breadcrumbs without the need

for multistep reasoning. 25 See, e.g., In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1824

25Suffice it to say, we do not agree with Applicant’s argument that the Examining Attorney
improperly dissected its mark. Applicant’s Brief, pp. 9-11 (7 TTABVUE 10-12).

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Serial No. 87444355

(TTAB 2012) (“[T]he words in the proposed mark SEMICONDUCTOR LIGHT

MATRIX retain their dictionary meanings when used by applicant; and the proposed

mark in its entirety is merely descriptive, because as the words are combined they do

not create a meaning different from the individual elements.”); In re King Koil

Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006) (holding THE BREATHABLE

MATTRESS merely descriptive of beds, mattresses, box springs, and pillows where

the evidence showed that the term “BREATHABLE” retained its ordinary dictionary

meaning when combined with the term “MATTRESS” and the resulting combination

was used in the relevant industry in a descriptive sense); In re Sun Microsystems Inc.,

59 USPQ2d 1084 (TTAB 2001) (holding AGENTBEANS merely descriptive of

“computer software for use in the development and deployment of application

programs on a global computer network” because “beans” are building blocks used to

create larger pieces of software and “agents” are a type of computer program and,

therefore, anyone marketing software “beans” with the attributes of “agent” programs

should be able to convey that fact by using the term AGENTBEANS). In other words,

consumers encountering Applicant’s PANKOCRISP “Oriental and Pacific rim cuisine

prepared foods,” “frozen tempura kits,” or “breaded chicken” will immediately know

that they are crispy, panko breaded products.

Applicant argues that PANKOCRISP “taken as a whole” is incongruous because

the noun “Panko” is placed before the adjective “Crisp” contrary to normal English

construction. 26 While the construction of PANKOCRISP may be somewhat unusual,

26 Applicant’s Brief, p. 10 (7 TTABVUE 11).

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Serial No. 87444355

as noted above, the meaning and commercial impression engendered by the term

directly and immediately conveys to consumers that the food products so identified

have a crispiness characterized by panko. Compare In re Shutts, 217 USPQ 363, 364

(TTAB 1983) (SNO-RAKE held not merely descriptive of a snow-removal hand tool

because the term “rake” does not readily and immediately evoke the image of a snow

tool); In re Tennis in the Round Inc., 199 USPQ 496, 498 (TTAB 1978) (applicant’s

mark TENNIS-IN-THE-ROUND evokes an association with the term “theater-in-the-

round” which creates an incongruity because applicant’s tennis facilities are not

analogous to a “theater-in-the-round”); In re John R. Beck, Inc., 150 USPQ 397, 398

(TTAB 1966) (holding TINT TONE suggestive because the terms have overlapping

significance which in combination is “somewhat incongruous or redundant” and

without any meaning). 27

Applicant also argues that PANKOCRISP “does not have any meaning and it is

not used nor known in the English language.” 28 However, the fact that a word or term

is not found in the dictionary is not controlling on the question of registrability when,

as here, the word or term has a well understood and recognized meaning. See In re

Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111-12 (Fed. Cir. 1987); In re

27 Applicant’s reliance on In re Vienna Sausage Mfg. Co., 156 USPQ 155, 156 (TTAB 1967)
(FRANKWURST held not merely descriptive for wieners because although “frank” may be
synonymous with “wiener,” and “wurst” is synonymous with “sausage,” the combination of
the terms is incongruous and results in a mark that is no more than suggestive of the nature
of the goods) is not persuasive because the Board in that decision did not explain the
incongruity. Presumably, the basis for finding that FRANKWURST is an incongruous term
is analogous to our analysis in John R. Beck, supra, in that the mark consists of the
combination of the two descriptive terms with overlapping significance creating a redundancy
that is incongruous and without meaning.
28 Applicant’s Brief, p. 12 (7 TTABVUE 13).

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Planalytics, Inc., 70 USPQ2d 1453, 1456 (TTAB 2004); In re Tower Tech Inc.,

64 USPQ2d at 1314; In re Orleans Wines, Ltd., 196 USPQ 516, 517 (TTAB 1977).

III. Conclusion

Upon consideration of the applicable law, the evidence and the arguments of

Applicant and the Examining Attorney, we find that Applicant’s proposed mark

PANKOCRISP is merely descriptive under Section 2(e)(1).

Decision: The refusal to register Applicant’s proposed mark PANKOCRISP is

affirmed.

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