‘Taco Tuesday’ No Good As A Trademark For Beer; Paging Taco John’s

It's always fun when the USPTO demonstrates its internal multiple personality disorder on intellectual property concerns. That's probably a tad harsh; after all, the USPTO is made up of people, and different people will view similar situations differently. Unfortunately, part of what the USPTO is supposed to uphold and set are standards for intellectual property matters. Standards which should be applied evenly throughout all the requests that come its way.

Which brings us to Monday Night Ventures LLC and the trademark application it filed for a Taco Tuesday" lager.

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).

100% the correct decision. I have no notes to offer. Neither did the TTAB, it appears, as it upheld the refusal of registration on appeal.

Notably, 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.

Agreed. But you know who has a registered trademark for Taco Tuesday" that is even more generic and descriptive than this example from a brewery? Taco fucking John's, that's who.

We have written for years about Taco John's wielding this registered mark it somehow got from the USPTO to try to keep other eateries and restaurants from being able to host, promote, or advertise their own Taco Tuesdays." It sure would be nice if the USPTO could look at its correct decision denying Monday Night Ventures its Taco Tuesday" mark and then apply that same standard to Taco Johns' mark.

At the very least, anyone who might want to challenge Taco John's registration should be able to point to this latest TTAB appeal.