Upper Buena Vista Management LLC

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: May 18, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
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In re Upper Buena Vista Management LLC
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Serial No. 97976656
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On Request for Reconsideration
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Heidi Tandy of Berger Singerman LLP,
for Upper Buena Vista Management LLC.
Maureen Reed, Trademark Examining Attorney, Law Office 115.
Daniel Brody, Managing Attorney.
_____
Before Heasley, Lebow and Stanley,1
Administrative Trademark Judges.
Opinion by Lebow, Administrative Trademark Judge:
On December 18, 2025, Applicant Upper Buena Vista Management LLC filed a
“Motion for Acceptance of Request for Reconsideration” of the Board’s final decision
in this case, which affirmed the Trademark Examining Attorney’s refusal to register
1 Administrative Trademark Judge Dunn, who was on the panel for the Board’s final decision,
has retired from the Board. Administrative Trademark Judge Heasley has been substituted
for Judge Dunn.

Serial No. 97976656
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the word PALAPA on the ground that it is merely descriptive of the identified
services2 under Section 2(e)(1) of the Trademark Act, and has not acquired
distinctiveness for those services pursuant to Section 2(f) of the Act. 15 U.S.C. §§
1052(e)-(f).3 By characterizing it as a “Motion for Acceptance,” Applicant appears to
concede that the motion is untimely. Trademark Rule 2.144 requires a request for
reconsideration be filed “within one month from the date of the decision.” 37 C.F.R. §
2.144. Applicant’s request for reconsideration was approximately three weeks late.
Rule 2.144 permits the Board to extend the date for filing a request for
reconsideration “upon a showing of sufficient cause.” According to Applicant, there is
sufficient cause here because on December 9, 2025, after the Board’s decision in this
case, “the United States Court of Appeals for the Federal Circuit issued a ruling in
In re Bayou Grande Coffee Roasting Co., [160 F.4th 1370] (Fed. Cir. Dec. 9, 2025)
. . . on the issue of genericness and mere descriptiveness which, if considered by the
Board, should cause the Board to reconsider its ruling . . . and reverse same.”4
According to Applicant, “[t]he Bayou Court’s criticism of the Board obligates the
Board to re-evaluate and reverse its decision in [Applicant’s] PALAPA Mark.”5 This
is because “[t]he Court in Bayou held that speculation by the Board is
2 The complete identification includes: “Event venue services, namely providing banquet
facilities for special occasions; event venue services, namely providing social function
facilities including concert-quality audio-visual and lighting systems for special occasions;
event venue services, namely, providing pavilion facilities that include concert-quality audio-
visual and lighting systems for hosting concerts, exhibitions, markets and pop-up food courts
and dining events,” in International Class 43.
3 21 TTABVUE.
4 Id. at 6.
5 Id (initial caps and bold font omitted).

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impermissible.”6 Here, contends Applicant, “the Board engaged in speculation at two
separate points in its analysis”:
The first is . . . where the Board wrote, regarding an infringement by
Joia Beach that was included in a filing by the Examining Attorney and
was later removed from the Joia Beach website, that had Applicant
requested reconsideration by the Examining Attorney regarding this
issue, “it would have been futile because the submission of two pages
from a website that do not show use of the term ‘palapa’ does not mean
it is not shown on other pages, or that consumers had not been exposed
to it up to that point”. This is nothing but speculation, not borne out by
any evidence presented by the Examining Attorney; speculation by the
Board is not permitted post-Bayou. . . .
The second use of speculation by the Board in its analysis of the
PALAPA mark is the Board’s determination that “open sided” and “open
air” have the same meaning. The Court criticized the Board in Bayou for
blurring a specific type of tea, namely kahwa, with teas in general, or a
variety of teas, which may be sold in cafés. In the Board’s Decision at 20
TTABVUE 9-10, the Board included images that show that portions of
walls are made of canvas, and can be opened, but also, portions of those
same walls are made of wood, and cannot be opened; of course, at least
one wall in every building can be opened in part, because that’s where
the door is, and most codes for public spaces require an exit on a separate
wall, meaning that two walls will, by their nature, have openings. In
addition, the Board jumped to a conclusion about the image at 20
TTABVUE 12, which is a photograph taken outside, and not in a
structure at all; to use that photo to assert that Applicant’s facilities are
an open-sided building is not based on evidence, but is instead,
speculation of the sort barred by the Bayou Court. Given that the Board
has presented no evidence that open-sided and open-air have the exact
same meaning, and given that other photos presented by Applicant (and
the Examining Attorney) and included by the Board at 20 TTABVUE
11-13 are taken outside and not in a building at all, the Board’s
speculation shows why the CAFC said that the Board cannot engage in
“pure speculation.” Bayou at *3; also see OSI Pharms., LLC v. Apotex
Inc., 939 F.3d 1375, 1382 (Fed. Cir. 2019) (“Mere speculation is not
substantial evidence.”).7
6 Id. at 8.
7 Id. at 8-9.

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But as noted above, Applicant’s request for reconsideration was untimely and may
be denied on that basis alone. Rule 2.144 does not expressly provide an opportunity
to seek reopening of the time to request reconsideration once the deadline has passed.
Further, even if we construed Applicant’s motion as a motion to reopen the time for
filing a request for reconsideration and applied the “sufficient cause” standard,
Applicant has not shown sufficient cause to reset the deadline.8
The premise underlying a request for reconsideration is that based on the record
evidence and the applicable law, the Board erred in reaching its decision. In re
Berkeley Lights, Inc., No. 88895703, 2022 TTAB LEXIS 382, at *2. A request may not
be used to introduce into the record additional evidence or to reargue points presented
in the requesting party’s brief on the case. Id.; TBMP §§ 543 and 1219.01. Applicant’s
request for reconsideration here is nothing more than a re-argument of the points it
already made in its appeal brief (which were rejected by the Board in its final
decision) masquerading as an argument that the Board’s primary reviewing court,
the Federal Circuit, has issued a new rule barring speculation, thus demonstrating
how the Board’s decision was in error.
Counsel’s central contention is that Bayou Grande Coffee Roasting constitutes
“new law” requiring the Board to re-evaluate whether PALAPA is merely descriptive,
and to reverse because “the Board did not present the substantial evidence required
8 In the inter partes context of Board proceedings, a party must set forth with particularity
the facts said to constitute good cause for a requested extension of time; a higher burden –
excusable neglect − applies to requests to reopen a deadline that has passed. TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 509 (June 2025).

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by the Bayou court in support of its claim that consumers will have an instantaneous
mental leap between the word PALAP and [Applicant’s recited services].”9 That
characterization is incorrect. Bayou Grande Coffee Roasting is a fact-specific decision
applying long-settled principles of review under Section 2(e)(1). It does not announce
new law, alter the legal standard for mere descriptiveness, or prohibit the Board from
relying on dictionary definitions, third-party usage, or an applicant’s own materials.
In Bayou Grande Coffee Roasting, the Court reversed the Board’s finding that
KAHWA (a foreign term for a specific Kashmiri green tea) was generic or merely
descriptive of café/coffeehouse services. Bayou Grande Coffee Roasting, 160 F.4th at
1372. The record there contained no evidence that relevant consumers understood
“kahwa” as describing a feature of café services or that U.S. cafés sold or offered
kahwa. Id. at 1375. The Court held that the Board’s conclusion rested on speculation
rather than substantial evidence. Id. at 1375-76.
The present case is factually distinguishable in every material respect. The record
contains plentiful evidence showing that PALAPA immediately describes a key
feature of Applicant’s identified event-venue services: a thatched roof, open-sided (or
open-air) pavilion structure used for banquets, social functions, concerts, exhibitions,
markets, and pop-dining. The evidence includes:
● Multiple dictionary definitions establishing that a “palapa” is an open-sided,
thatched-roof structure commonly used as a bar;
● Applicant’s own photographs, Instagram/Facebook posts, and website
9 Id. at 10-11.

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statements describing its venue as an “open air pop-up” and “open-air cultural oasis,”
with canvas sides that open to create an unconfined-air environment; and
● Third-party evidence showing widespread use of “palapa” to denote rentable
event pavilions and social-function facilities with similar features.10
Here, unlike in Bayou Grande Coffee Roasting, there is no gap in the evidence
chain and no reliance on speculation. The Board’s findings rest squarely on the
record, not conjecture. Counsel’s suggestion that Bayou Grande Coffee Roasting
compels reversal misreads both the decision and the facts of this case. The request
also repeats earlier arguments regarding “open-sided” versus “open-air,” the weight
of third-party evidence, hearsay, and Section 2(f) acquired distinctiveness. Those
arguments were fully addressed in the Board’s October 30, 2025 decision and are not
strengthened by Bayou Grande Coffee Roasting. The Board did not engage in
improper “blurring” of terms;11 it found, based on the evidence, that Applicant’s venue
meets the ordinary meaning of a palapa. Applicant’s hearsay objection is
meaningless—the Board applied the same evidentiary standards to the Examining
Attorney that it applied to Applicant’s submissions. Applicant’s Section 2(f) showing
remains insufficient given the high degree of descriptiveness.
Finally, we did not hold, as Applicant argues, “that were Applicant to obtain a
registration for the mark PALAPA for its applied-for services, it would have a
10 20 TTABVUE 8-26.
11 21 TTABVUE 9.

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monopoly on a descriptive term.”12 Rather, we explained that “[t]he fact that
Applicant may be the first or only user of a term does not render the term distinctive’
if, as here, it has been shown to be merely descriptive of the [services] identified in
the application.”13 The “monopoly” language, which Applicant takes out of context, is
a quote is from the United States Supreme Court decision in KP Permanent Make-
Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 122 (2004), which we cited in
addition to Zuma Array. KP Permanent Make-Up is not inconsistent with Bayou
Grande Coffee Roasting; nor is our decision.
Applicant has not only failed to show sufficient cause to reset the deadline for
Applicant to file a request for reconsideration, Applicant has failed the ultimate
requirement for a request for reconsideration, namely to show “that, based on the
evidence properly of record and the applicable law, the Board’s ruling is in error and
requires appropriate change.” TBMP § 543. Accordingly, Applicant’s “Motion for
Acceptance of Request for Reconsideration” is denied.
Decision: Applicant’s “Motion for Acceptance of Request for Reconsideration” is
denied and the Board’s October 20, 2025 final decision stands.
12 Id. at 14.
13 20 TTABVUE 30 (quoting In re Zuma Array Ltd., No. 79288888, 2022 TTAB LEXIS 281,
at *21).