ETLC Trademarks, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: May 5, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re ETLC Trademarks, LLC
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Serial Nos. 98166506 and 98120339
_____
Albert Bordas of Albert Bordas, P.A.,
for ETLC Trademarks, LLC
Benjamin Rosen, Trademark Examining Attorney, Law Office 120,
Joshua Toy, Managing Attorney.
_____
Before Greenbaum, Lavache and Bradley,
Administrative Trademark Judges.
Opinion by Bradley, Administrative Trademark Judge:
ETLC Trademarks, LLC (“Applicant”) seeks registration on the Principal Register
of the proposed marks depicted and described below, both for “restaurant services” in
International Class 43:

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(the ’506 Mark).1 The description of the mark states:
The mark consists of a trade dress comprising of the
interior design of a restaurant consisting of the
combination of all of the following elements: bar counter
and walls with a Chicago brick facade; finishing counter
connected to the bar; prep table shown in front of a
rotisserie grill that includes a wheel on the upper left side
that adjusts the grills with chains to create the movement
and metal structure sits on top of the grill. The drawing
consists of a single three-dimensional view of the subject
interior elements with solid lines and broken lines. Solid
lines are used to indicate matters that are part of the mark
and features of the mark; while broken lines are used to
indicate matters that are not features of the mark.
1 Application Serial No. 98166506 (“’506 Application”) was filed on September 6, 2023, under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming first use anywhere and first
use in commerce on May 1, 2017. Color is not claimed as a feature of the mark.

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(the ’339 Mark).2 The description of the mark states:
The mark consists of of [sic] trade dress comprising the
interior design of a restaurant consisting of the
combination of all of the following elements: Chicago style
brick wall; bar counter with an abstract wood accent
facade; finishing counter connected to the bar; prep table
shown in front of a rotisserie grill that includes a wheel on
the upper left side that adjusts the grills with chains to
create the movement and metal structure sits on top of the
grill. The drawing consists of a single three-dimensional
view of the subject interior elements with solid lines and
broken lines. Solid lines are used to indicate matters that
are part of the mark and features of the mark; while broken
lines are used to indicate matters that are not features of
the mark.
2 Application Serial No. 98120339 (“’339 Application”) was filed on August 7, 2023, under
Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming first use anywhere and first
use in commerce on May 1, 2017. Color is not claimed as a feature of the mark.

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The mark descriptions claim identical elements except that the description for the
’506 Mark includes a “bar counter and walls with a Chicago brick facade” whereas
the ’339 Mark includes a single “Chicago style brick wall” and a “bar counter with an
abstract wood accent facade.” We refer to both marks collectively as the “Proposed
Marks.”
The same Examining Attorney examined both applications for the Proposed
Marks and prosecution of the applications proceeded largely in parallel. The
Examining Attorney refused registration of the Proposed Marks under Sections 1, 2,
3 and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1053 and 1127, because they
consist of trade dress that is not inherently distinctive, and Applicant’s claim of
acquired distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), made
in the alternative, is insufficient. The Examining Attorney also refused registration
because Applicant failed to submit an amended drawing (and a corresponding
amended mark description) that shows in broken or dotted lines the following
features that are nondistinctive and incapable of functioning as a mark: “All
depictions of the grill, rotisserie, and food preparation apparatus,” as required by
Trademark Rule 2.52(b)(4), 37 C.F.R. § 2.52(b)(4).3
3 July 10, 2025 Final Office Action at 1-5.
Except as otherwise indicated, in this opinion we cite to the prosecution history and appeal
briefs for the ’506 Application.
Page references to the application file refer to the online database of the United States Patent
and Trademark Office’s (“USPTO”) Trademark Status & Document Retrieval (“TSDR”)
system. All citations to documents contained in the TSDR database are to the downloaded
.pdf versions of the documents.

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After the Examining Attorney issued the final refusal, Applicant appealed.4
Applicant and the Examining Attorney then filed briefs.5 We affirm the refusal to
register the Proposed Marks because they comprise trade dress that is not inherently
distinctive, and Applicant failed to prove its claim of acquired distinctiveness, which
it made in the alternative.6
Given that the two appeals involve common issues of law and fact, and the
evidentiary records and briefs in both proceedings are nearly identical, we will decide
the appeals in a single opinion. See In re Audemars Piguet Holding SA, No. 90045780,
2025 TTAB LEXIS 1, at *7-8 (TTAB 2025) (addressing both appeals in a single
decision where “issues raised by the two appeals are nearly identical, save for a few
additional features” in one application and “[t]he briefs also are nearly identical, as
are the evidentiary records”). However, we are not formally consolidating the cases,
and “each proceeding retains its separate character and will result in the entry of a
separate judgment for each appealed application; a copy of this decision shall be
Citations to appeal briefs and other materials in the appeal docket refer to TTABVUE, the
Board’s online docketing system. Specifically, the number preceding TTABVUE corresponds
to the docket entry number, and any number(s) following TTABVUE refer to the page
number(s) of the docket entry where the cited materials appear.
4 1 TTABVUE.
5 4 TTABVUE (Applicant’s brief); 6 TTABVUE (Examining Attorney’s brief).
6 Given our affirmance on these refusals, we do not reach the requirement for an amended
drawing. See In re Greenwood, No. 87168719, 2020 TTAB LEXIS 499, at *12 n.31 (TTAB
2020) (“In view of our affirmances of the Examining Attorney’s refusals [under Sections 1, 2
and 45 of the Trademark Act], we do not reach this issue [regarding the specimens].”); In re
Heatcon, Inc., No. 85281360, 2015 TTAB LEXIS 360, at *42 (TTAB 2015) (“we have found
the configuration as a whole to be functional which renders the drawing requirement moot”).
However, even if Applicant had adopted the amended drawing and amended mark
description, it would not have changed the result in these appeals and we would still affirm
the refusal of nondistinctive trade dress and, alternatively, lack of acquired distinctiveness.

Serial Nos. 98166506 and 98120339
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placed in each proceeding file.” In re The Consumer Prot. Firm PLLC, No. 87445801,
2021 TTAB LEXIS 67, at *4 (TTAB 2021); see also TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (TBMP) § 1214 (2025) (“The Board may also consider
two or more cases in one opinion even if they have not been consolidated.”).
I. Nondistinctive Trade Dress for Services Refusal
The Examining Attorney refused registration of the Proposed Marks, consisting
of trade dress comprising the interior design of a restaurant, under Sections 1, 2, 3
and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1053 and 1127. In particular,
the Examining Attorney determined that the Proposed Marks consist of trade dress
that is not inherently distinctive and would not be perceived as a service mark but
only as decoration or ornamentation.
A. Applicable Law
The USPTO “is statutorily constrained to register matter on the Principal Register
if and only if it functions as a mark.” In re Ride, LLC, No. 86845550, 2020 TTAB
LEXIS 2, at *17 (TTAB 2020). “Distinctiveness is . . . an explicit prerequisite for
registration of trade dress under § 2” of the Trademark Act. Wal-Mart Stores v.
Samara Bros., 529 U.S. 205, 210 (2000). Specifically, as defined in Section 45 of the
Trademark Act, “a service mark must function to ‘identify and distinguish the
services of one person . . . from the services of others and to indicate the source of the
services.’” In re Vox Populi Registry Ltd., 25 F.4th 1348, 1350-51 (Fed. Cir. 2022)
(quoting 15 U.S.C. § 1127). As such, trade dress “is inherently distinctive if its
intrinsic nature serves to identify a particular source.” Wal-Mart Stores, 529 U.S. at
210 (citation omitted). “Matter that does not operate to indicate the source or origin

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of the identified . . . services and distinguish them from those of others does not meet
the statutory definition of a . . . service mark and may not be registered.” In re Black
Card LLC, No. 90641690, 2023 TTAB LEXIS 478, at *8 (TTAB 2023) (citations and
quotations omitted).
The Proposed Marks consisting of trade dress comprising the interior design of a
restaurant are product packaging (or something akin thereto) and are therefore
capable of being inherently distinctive. See Two Pesos, Inc. v. Taco Cabana, Inc., 505
U.S. 763, 767 (1992) (trade dress comprising design of a restaurant was inherently
distinctive and protectible without a showing that it has acquired secondary
meaning); Wal-Mart Stores, 529 U.S. at 215 (“Two Pesos unquestionably establishes
the legal principle that trade dress [such as the décor of a restaurant] can be
inherently distinctive . . . [as] either product packaging -- which, as we have
discussed, normally is taken by the consumer to indicate origin -- or else some tertium
quid that is akin to product packaging . . .”).
We apply the four-part test set forth in the Federal Circuit’s decision in Seabrook
to determine whether the trade dress in the Proposed Marks is inherently distinctive:
1) whether the Proposed Marks are ‘common’ basic shapes or designs;
2) whether the Proposed Marks are unique or unusual in the particular
field;
3) whether the Proposed Marks are a mere refinement of a commonly-
adopted and well-known form of ornamentation for a particular class of
goods viewed by the public as a dress or ornamentation for the goods; or

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4) whether the Proposed Marks are capable of creating a commercial
impression distinct from the accompanying words.7
In re Chippendales USA, Inc., 622 F.3d 1346, 1351 (Fed. Cir. 2010) citing Seabrook
Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d 1342, 1344 (CCPA 1977) (“Seabrook”).
Where “a mark satisfies any of the first three tests, it is not inherently distinctive.”
Id.
Ultimately, the overall focus in the analysis of inherent distinctiveness “is
whether or not the trade dress is of such a design that a buyer will immediately rely
on it to differentiate the product from those of competing manufacturers; if so, it is
inherently distinctive.” Chippendales, 622 F.3d at 1352.
B. Analysis of the Seabrook Factors
As depicted in Applicant’s specimens and the descriptions of the marks, the
Proposed Marks consists of trade dress comprising the interior design of a restaurant
consisting of the combination of the following elements:
• One or more Chicago style brick walls;
• A bar counter with either a Chicago brick facade or an abstract wood
accent facade;
• A finishing counter connected to the bar;
• A prep table; and
7 The Examining Attorney argues that the Proposed Marks are “are devoid of any wording,
and thus this final [fourth] factor must weigh in favor of refusal.” 6 TTABVUE 6. However,
where, as here, “an applicant’s mark contains no wording, the fourth Seabrook Factor ‘is not
applicable.’” In re Palacio Del Rio, Inc., No. 88412764, 2023 TTAB LEXIS 183, at *26 (TTAB
2023) (quoting Chippendales, 622 F.3d at 1351-52). Accordingly, we do not consider the fourth
Seabrook factor in our analysis.

Serial Nos. 98166506 and 98120339
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• A rotisserie grill that includes a wheel on the upper left side that
adjusts the grills with chains to create movement of the metal
structure that sits on top of the grill.
We analyze these claimed elements to determine if the Proposed Marks are
inherently distinctive. As discussed previously, the Proposed Marks claim identical
elements except that the description for the ’506 Mark includes a “bar counter and
walls with a Chicago brick facade” whereas the ’339 Mark includes a single “Chicago
style brick wall” and a “bar counter with an abstract wood accent facade.” Given this
overlap, we analyze the Proposed Marks together, as the slight differences in the
claimed elements do not alter the analysis.
1. The First Seabrook Factor
“The first Seabrook factor essentially asks whether the trade dress is common
generally: for example, does it employ a basic shape or design such as a letter or
geometric shape?” Chippendales, 622 F.3d at 1355. The Examining Attorney
addressed the first and second Seabrook factors together, but mixed the elements of
the two factors asserting that “the evidence in the record demonstrates that
applicant’s mark is a common basic interior design for restaurant services.”8 As
discussed in the next section, the Examining Attorney’s evidence is focused on a
particular field, that of restaurant services. However, the Examining Attorney’s
evidence does not demonstrate that the Proposed Marks are common generally, i.e.,
it does not demonstrate that the claimed elements are common basic shapes or
designs. See In re P&G, No. 77685045, 2012 TTAB LEXIS 447, at *12 (TTAB 2012)
8 6 TTABVUE 4; see also 6 TTABVUE 4-6.

Serial Nos. 98166506 and 98120339
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(claimed cap design of packaging “is clearly not a common geometric shape such as a
circle, oval, square or triangle”).
2. The Second Seabrook Factor
“The second [Seabrook] factor asks whether the symbol is common in the
particular field of use.” Chippendales, 622 F.3d at 1355. Before analyzing the
evidence, we determine the relevant field of use. The Examining Attorney used the
“restaurant field” given Applicant’s identified “restaurant services” in its
applications.9 Applicant refers both to “dining venues” and “steak restaurants.”10
Given that Applicant’s identified services are not limited to “steak restaurants”, but
rather all “restaurant services,” and that the descriptions of the Proposed Marks refer
generally to “interior design of a restaurant”, the relevant field of use here is the
restaurant field generally.
The Examining Attorney submitted evidence showing multiple restaurants
featuring one or more elements of the claimed trade dress in the Proposed Marks.11
Specifically, the Examining Attorney identified at least nine restaurants utilizing one
or more brick walls including the following:
9 Id. at 4, 6.
10 4 TTABVUE 12.
11 6 TTABVUE 4-6; March 19, 2024 Nonfinal Office Action at 7-91.

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12
13
12 Urban Cowboy Public House, March 19, 2024 Nonfinal Office Action at 42.
13 Hearthside, March 19, 2024 Nonfinal Office Action at 47.

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14
15
14 King + Duke, March 19, 2024 Nonfinal Office Action at 48.
15 The Dabney, March 19, 2024 Nonfinal Office Action at 45; see also id. at 15, 22, 30, 44, 52.

Serial Nos. 98166506 and 98120339
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The Examining Attorney also identified at least 12 restaurants featuring a bar
counter with a facade consisting of brick, wood or other similar decorative element
including the following:
16
17
16 Hearthside, March 19, 2024 Nonfinal Office Action at 48.
17 Foley’s, March 19, 2024 Nonfinal Office Action at 82.

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18
19
18 Lena Brava, March 19, 2024 Nonfinal Office Action at 36.
19 Yakitori, March 19, 2024 Nonfinal Office Action at 7; see also id. at 9, 28, 42, 81, 83-85, 87.

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The Examining Attorney additionally submitted evidence of at least eight
restaurants featuring finishing counters with representative examples including:
20
21
20 Takoyaki, March 19, 2024 Nonfinal Office Action at 9.
21 Poulet Bleu, March 19, 2024 Nonfinal Office Action at 83.

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22
23
22 Test Kitchen H, March 19, 2024 Nonfinal Office Action at 89.
23 Rustic Cafe, March 19, 2024 Nonfinal Office Action at 81; see also id. at 7, 33, 80, 87.

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The Examining Attorney further provided evidence of at least 12 restaurants with
prep tables visible in an open kitchen format including the following:
24
25
24 Sbraga and Company, March 19, 2024 Nonfinal Office Action at 87.
25 Metro Diner, March 19, 2024 Nonfinal Office Action at 85.

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26
27
26 The Charter Oak, March 19, 2024 Nonfinal Office Action at 16-17.
27 Status Kuo, March 19, 2024 Nonfinal Office Action at 80; see also id. at 7, 9, 36, 48, 82-83,
88-89.

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Finally, the Examining Attorney submitted evidence of at least 12 restaurants
featuring rotisserie grills with wheels with representative examples including:
28
29
28 Campfire, March 19, 2024 Nonfinal Office Action at 16.
29 Terra, March 19, 2024 Nonfinal Office Action at 57.

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30
31
30 Lena Brava, March 19, 2024 Nonfinal Office Action at 36.
31 El Che Bar, March 19, 2024 Nonfinal Office Action at 33; see also id. at 19, 35, 46-48, 51,
53-54, 87.

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Moreover, the Examining Attorney also submitted evidence of at least two
manufacturers that offer multiple models of grills featuring a wheel element designed
for restaurant kitchens.32 Grillworks offers an “Infierno line” which it describes as its
“flagship family of restaurant grills” which are “designed to anchor an open
kitchen.”33 Grillworks also offers other lines of professional grills that feature a wheel
element.34 Grillworks explains that “[a]t the core of [the Infierno line of grills] . . . is
a unique one-handed crankwheel operated chain-and-gear that raises and lowers a
swappable mix of grill surfaces over the fire to control heat.”35 This is similar to the
mechanism Applicant claims in the Proposed Marks for its rotisserie grill that
includes a wheel on the upper left side that adjusts the grills with chains to create
movement of the metal structure that sits on top of the grill. WebstaurantStore also
offers multiple models of Mibrasa grills with a wheel element that similarly features
“adjustable grills” and “a unique elevation system and positional brake that provides
the chef with full control over the distance between the food and the hot embers.”36
Applicant does not submit any evidence in response to the Examining Attorney’s
evidence, but argues that the Examining Attorney “failed to produce a single piece of
evidence . . . that demonstrates or proves . . . that Applicant’s mark does not comply
32 March 19, 2024 Nonfinal Office Action at 60-72, 74-78.
33 Id. at 60.
34 Id. at 69-70.
35 Id. at 68.
36 Id. at 74-76.

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with the four 4 [Seabrook] factors.”37 Applicant asserts that the Proposed Marks are
“unique” and the “design ensures that the mark[s] [are] exclusively linked to the
Applicant.”38 Yet, Applicant admits that “some open kitchens incorporate elements
like bricks, grills, elongated tables, and other contemporary design features” but
claims that “none showcase the full combination of elements embodied in the
Applicant’s mark[s].”39
Considered together, we find the Examining Attorney’s evidence establishes that
the elements Applicant asserts as its trade dress in the Proposed Marks are not
unique or unusual, but rather are common in the restaurant industry. We address
Applicant’s arguments regarding the combination and arrangement of its elements
under the third Seabrook factor discussed below.
3. The Third Seabrook Factor
The third Seabrook factor “asks whether or not the mark is a mere refinement of
or variation on existing trade dress within the relevant field of use.” Chippendales,
622 F.3d at 1355.
Applicant asserts that the Proposed Marks “meet the distinctiveness requirement
for registration, as the combination of the grill with the remaining physical and
structural elements of the restaurant renders the trade dress unique.”40 But the
Examining Attorney’s evidence demonstrates “that applicant’s design is not unique
37 4 TTABVUE 18.
38 Id. at 12.
39 Id. at 17.
40 Id. at 11.

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in the sense it has an ‘original, distinctive, and peculiar appearance.’” In re Mars,
Inc., No. 77545810, 2013 TTAB LEXIS 4, at *32-33 (TTAB 2013) (quoting In re
McIlhenny Co., 278 F.2d 953, 956 (CCPA 1960)). As discussed above (and as Applicant
admits),41 many restaurants incorporate the same elements claimed in the Proposed
Marks, and many include combinations of these elements demonstrating that the
Proposed Marks are, at most, mere refinements or variations on existing trade dress
in the restaurant industry.42 See Mars, 2013 TTAB LEXIS 4, at *28 (trade dress not
inherently distinctive where it “share[d] many of the same features” as third-party
containers).
There is also nothing unique in Applicant’s arrangement of the elements, which
appears to be dictated by function. Specifically, the finishing counter where kitchen
workers place the final touches on the food is connected directly to the bar counter
where customers sit. The prep counter is placed directly behind the finishing counter
and in front of the rotisserie grill to allow food to travel seamlessly from cooking to
prep to final touches. And the rotisserie grill is placed at the back of the open kitchen,
keeping the heat and the flames the farthest from the customers seated at the bar.
Similar arrangements are also seen in the evidence of record.43 As the Board
explained in another case involving trade dress consisting of a three-dimensional
configuration:
41 4 TTABVUE 17.
42 See, e.g., March 19, 2024 Nonfinal Office Action at 28, 33, 36, 42, 47-48, 81.
43 See, e.g., id. at 47-48, 86-87, 89.

Serial Nos. 98166506 and 98120339
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the configuration applied for by applicant consists of very
ordinary components that go into any compact disc player
from any manufacturer. How these components are
arranged by applicant remains ordinary, and is not
unusual. Applicant’s design is nothing more than an
arrangement of all the components involved in a compact
disc player put together in a rather ordinary manner.
In re Khadivar, No. 74552579, 1999 TTAB LEXIS 196, at *7 (TTAB 1999). Similarly,
the Proposed Marks consist of ordinary components of a restaurant kitchen arranged
in an ordinary manner dictated by function.44
Applicant also argues that “none of the evidence” of other restaurants presented
by the Examining Attorney “feature a trade dress with grills or openings that
incorporate the same elements as those found in the applied-for mark[s]” and that
“no other steakhouse or dining venue presents a similar combination of grill design,
layout, textures, and shapes.”45 But the Board’s “prior case law has made clear, the
44 There is also nothing unique about the open kitchen format depicted in the Proposed
Marks, as the Examining Attorney’s evidence shows that “[o]pen kitchens are a hot trend.”
March 19, 2024 Nonfinal Office Action at 7; see also id. at 8 (the open kitchen “model spans
cuisines - from sandwiches to sushi - and categories, from fast food to line dining”). And the
evidence of record further demonstrates regular use of open kitchens. See, e.g., id. at 30
(“Every savory dish that comes out of the open kitchen at Trey Cioccia’s downtown Nashville
restaurant . . .”); 32 (“The kitchen is open to the dining room, and a few diners get a front row
seat at the kitchen counter.”); 41-42 (“insanely cheffy food . . . comes from a long, open kitchen
and hearth”); 48-49 (“A 24-foot-long open hearth is at the center of acclaimed Southern chef
Ford Fry’s restaurant.”); 90 (“The restaurant features an open kitchen that faces the main
dining room . . .”).
45 4 TTABVUE 12. At various points in its brief Applicant asserts rights in vague elements
such as “textures and shapes” (id. at 12, 17), “ambiance” (id. at 12), and “contemporary design
features” (id. at 17). To the extent Applicant is asserting rights over elements not depicted in
its specimens or described in the descriptions of the marks, these elements are not part of
the Proposed Marks and cannot be considered. See, e.g., Mars, 2013 TTAB LEXIS 4, at *28-
29 (“applicant’s argument regarding the specific size of its container is not persuasive because
applicant has not claimed that its product packaging has a particular size . . . [as] there is no
size limitation stated in the description of the proposed mark”).

Serial Nos. 98166506 and 98120339
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circumstances of an applicant being ‘the one and only’ user of a proposed mark does
not in and of itself elevate that mark to the level of uniqueness required for inherent
distinctiveness.” In re File, No. 74708137, 1998 TTAB LEXIS 257, at *14 (TTAB 1998)
(rejecting applicant’s argument that its bowling alley lighting scheme was inherently
distinctive because he “he is the sole user of such a trade dress in the bowling
industry”); see also In re Odd Sox LLC, No. 86297488, 2019 TTAB LEXIS 346, at *27
(TTAB 2019) (rejecting applicant’s argument that its packaging was inherently
distinctive because it “was not used in the industry before [a]pplicant used it” because
“this fact alone does not imbue the design with source-indicating significance”)
(citation omitted). “If the concept of inherent distinctiveness was defined as meaning
simply ‘one and only,’ then one could obtain a registration for a design which, while
‘unique’ in this sense, differed only slightly from the designs of other competing
products and/or containers.” In re E S Robbins Corp., No. 73822816, 1992 TTAB
LEXIS 22, at *5-6 (TTAB 1992). Such is the case here, where the record demonstrates
that the Proposed Marks differ only slightly from the designs of many other
restaurants already using the same elements. Even if, as Applicant claims, “no
identical or substantially similar trade dress exists in the field that replicates the
total combination of elements claimed by Applicant,”46 the trade dress nonetheless
lacks inherent distinctiveness. In re J. Kinderman & Sons, Inc., No. 74602615, 1998
TTAB LEXIS 15, at *6 (TTAB 1998) (denying registration even though no evidence
of identical use because “applicant’s designs, which consist of stars and the colors red,
46 4 TTABVUE 25.

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green and gold, and indeed resemble wrapped Christmas presents, [and] are a mere
refinement of a form of ornamentation for Christmas merchandise”).
C. Conclusion on the Seabrook Factors
The Proposed Marks satisfy the tests in both the second and third Seabrook
factors, and accordingly they are not inherently distinctive. Chippendales, 622 F.3d
at 1351 (Where “a mark satisfies any of the first three [Seabrook] tests, it is not
inherently distinctive.”). The Proposed Marks would be perceived by patrons of
Applicant’s restaurant services simply as part of the overall decor or ambiance of
Applicant’s restaurants. Given the common use of the claimed elements and the
common arrangement of the elements in other restaurants, customers are not likely
to view this decor or ambience as identifying and distinguishing the source of
Applicant’s restaurant services. See File, 1998 TTAB LEXIS 257, at *16 (Applicant’s
“tubular lights running lengthwise down bowling lanes and projecting over the
gutters would be perceived by customers for bowling alley entertainment services as
simply a refinement of the commonplace decorative or ornamental lighting
arrangements to which they have become accustomed and would not be inherently
regarded as a source indicator.”).
II. Lack of Acquired Distinctiveness
A. Applicable Law
Under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f), matter that is not
inherently distinctive may nonetheless be registered on the Principal Register if the
evidence of record establishes that the proposed mark has acquired distinctiveness

Serial Nos. 98166506 and 98120339
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(also known as “secondary meaning”) among the relevant purchasers as used in
connection with Applicant’s services in commerce. See Coach Servs. Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1378-79 (Fed. Cir. 2012). Applicant asserts that the
evidence it submitted supports a finding that the Proposed Marks have acquired
distinctiveness.47 Applicant “bears the burden of proving acquired distinctiveness.”
In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 1335 (Fed. Cir. 2015) (citation omitted).
“[A] mark has acquired distinctiveness, even if it is not inherently distinctive, if it
has developed secondary meaning, which occurs when, in the minds of the public, the
primary significance of a [mark] is to identify the source of the product rather than
the product itself.” Wal-Mart Stores, 529 U.S. at 211 (citation omitted). The
Examining Attorney contends that Applicant’s evidence is insufficient to meet this
standard.48
“The amount and character of evidence required to establish acquired
distinctiveness depends on the facts of each case and the nature of the mark sought
to be registered.” In re Gen. Mills IP Holdings II, LLC, No. 86757390, 2017 TTAB
LEXIS 262, at *6 (TTAB 2017) (citing Roux Labs., Inc. v. Clairol Inc., 427 F.2d 823,
829 (CCPA 1970)). “While there is no fixed rule for the amount of proof necessary to
demonstrate acquired distinctiveness, the burden is heavier in these appeals because
they involve . . . common elements of [interior restaurant] designs” (e.g., brick walls,
bar counters, finishing counters, prep tables, rotisserie grills). Palacio Del Rio, 2023
47 4 TTABVUE 10, 19-24.
48 6 TTABVUE 6-8.

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TTAB LEXIS 183, at *32 (citing Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d
1572, 1581 (Fed. Cir. 1988) (evidence required to show acquired distinctiveness is
directly proportional to the degree of non-distinctiveness of the mark at issue); see
also In re Jasmin Larian, LLC, No. 87522459, 2022 TTAB LEXIS 99, at *45 (TTAB
2022) (“It is axiomatic that the lesser the degree of inherent distinctiveness, the
heavier the burden to prove that [a mark] has acquired distinctiveness.”) (citation
omitted).
We consider evidence of the following six factors in determining whether the
Proposed Marks have acquired distinctiveness:
1) association of the trade dress with a particular source by actual
purchasers (typically measured by customer surveys);
2) length, degree, and exclusivity of use;
3) amount and manner of advertising;
4) amount of sales and number of customers;
5) intentional copying; and
6) unsolicited media coverage of the product embodying the mark.
Converse, Inc. v. Int’l Trade Comm’n, 909 F.3d 1110, 1120 (Fed. Cir. 2018). “[N]o
single factor is determinative.” In re Steelbuilding.com, 415 F.3d 1293, 1300 (Fed.
Cir. 2005). Rather, “[a]ll six factors are to be weighed together in determining the
existence of secondary meaning.” Converse, 909 F.3d at 1120.

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B. Analysis of Applicant’s Evidence
Applicant provided the following evidence in support of its claim, made in the
alternative, that the Proposed Marks have acquired distinctiveness:49
• A declaration from Applicant’s manager attesting to long-term continuous
use of at least five years and that “the relevant public understands the
primary significance of [the Proposed] [M]ark[s] as identifying the source
of Applicant’s restaurant services”;50
• Screenshots of Instagram posts by one of Applicant’s competitors, the
Carnicero Group, which include the interior design of the competitor’s
restaurant;51
• August 13, 2020 article from the Miami New Times;52
• Customer traffic records;53 and
• Advertising expenditures.54
As discussed below, we agree with the Examining Attorney that Applicant’s proffered
evidence “do[es] not demonstrate that the interior design has acquired distinctiveness
in the mind of the consumer.”55
49 Applicant provided very similar evidence for both of the Proposed Marks, so we analyze the
asserted acquired distinctiveness of both Proposed Marks together. The only differences are
the following: (i) the declarations Applicant submitted from Applicant’s manager, Mara
Espinosa, reflect the corresponding addresses and dates of use for the locations of the
restaurants depicted in the ’506 Application and the ’339 Application. See June 4, 2025
Response to Office Action (’506 Application) at 37; 4 TTABVUE 30 (’339 Application Request
for Remand with Corrected Response to Office Action); and (ii) the customer volume and sales
figures are again specific to the locations of restaurants depicted in the Proposed Marks. See
June 4, 2025 Response to Office Action (’506 Application) at 45-46; 4 TTABVUE 41-42 (’339
Application).
50 June 4, 2025 Response to Office Action at 37-38.
51 Id. at 34-36, 39-40.
52 Id. at 41-44.
53 Id. at 31-32, 45-46.
54 Id. at 32-33, 47-52.
55 6 TTABVUE 8.

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With regard to length, degree, and exclusivity of use, Applicant provides
conflicting evidence regarding the dates of use for the proposed mark in the ’506
Application, asserting in the declaration both that it has used the proposed mark
since August 1, 2019 at its restaurant, and that the proposed mark has been in
continuous use in interstate commerce since May 1, 2017,56 while also asserting in its
brief that Applicant has consistently used the proposed mark since January 8, 2019.57
For the ’339 Application, Applicant consistently asserts continuous use of the
proposed mark since May 1, 2017.58 In any event, all the alleged dates demonstrate
more than five years of continuous use. However, “[a]lthough Section 2(f) of the
Lanham Act, 15 U.S.C. § 1052(f), provides that that the PTO may accept five years of
‘substantially exclusive and continuous’ use as prima facie evidence of acquired
distinctiveness, the statute does not require the PTO to do so.” La. Fish Fry, 797 F.3d
at 1336-37. And, having already found that the Proposed Marks are not inherently
distinctive because they are comprised of common features in the restaurant
industry, length of use alone is not sufficient to satisfy the elevated burden of proving
acquired distinctiveness. See, e.g., In re Owens-Corning Fiberglas Corp., 774 F.2d
1116, 1124 (Fed. Cir. 1985) (“convincing evidence” was required to show that the color
pink served as a source indicator for insulation). Moreover, as discussed above, the
evidence provided by the Examining Attorney shows that many restaurants use the
56 June 4, 2025 Response to Office Action at 37.
57 4 TTABVUE 19.
58 4 TTABVUE 30 (’339 Application); 8 TTABVUE 19-20 (’339 Application).

Serial Nos. 98166506 and 98120339
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elements Applicant asserts comprise the trade dress for the Proposed Marks such
that Applicant’s use cannot be considered exclusive.59 See Levi Strauss & Co. v.
Genesco, Inc., 742 F.2d 1401, 1403 (Fed. Cir. 1984) (“When the record shows that
purchasers are confronted with more than one (let alone numerous) independent
users of a term or device, an application for registration under Section 2(f) cannot be
successful, for distinctiveness on which purchasers may rely is lacking under such
circumstances.”).
For the amount and manner of advertising, Applicant argues that it “has invested
significantly in television advertising to promote the mark in connection with the
services offered.”60 However, the only evidence Applicant provides in support is
invoices for the advertising that do not provide any information on the contents of the
television advertising and merely list information on when the purchased advertising
would air and the rate charged.61 Without any information about what the television
advertising even showed, we cannot determine that such expenditures are probative
of whether the Proposed Marks have acquired distinctiveness. As the Board
explained in a prior case:
[A]lthough there have been substantial sales and
expenditures on advertising, the more important question
is how is the alleged mark being used, i.e., in what manner
have consumers been exposed to the alleged mark so that
59 We also do not find probative Applicant’s manager’s bare statement in its declaration that
its length of use establishes that “the relevant public understands the primary significance
of the mark as identifying the source of Applicant’s restaurant services.” June 4, 2025
Response to Office Action at 37-38 ¶ 7. Without supporting evidence, this statement is
insufficient to establish acquired distinctiveness.
60 4 TTABVUE 24.
61 June 4, 2025 Response to Office Action at 47-52.

Serial Nos. 98166506 and 98120339
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we can impute consumer association between the
configurations and the product producer. To determine
whether a configuration has acquired distinctiveness,
advertisements must show promotion of the configuration
as a trademark.
See, e.g., Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., No.
88412764, 2009 TTAB LEXIS 132, at *66 (TTAB 2009).
On the factor regarding amount of sales and number of customers, Applicant
provided evidence of what it identifies as “customer traffic records.”62 It appears that
some of this information relates to the number of customers in various categories
(e.g., customers that paid in cash or by credit card) that have visited its restaurants.63
For other categories such as “group types” described as “food,” “beverage,” “beer,” etc.,
it is unclear whether the “number” listed reflects the amount of sales, or the number
of customers that purchased food, beer, etc.64 In either case, we do not find the
customer traffic records probative of acquired distinctiveness because “the volume of
business for Applicant’s [restaurant] services does not translate to a perception of
Applicant’s [interior restaurant design] as an indicator of the source of those
services.”65 Palacio Del Rio, 2023 TTAB LEXIS 183, at *41. For example, the
customer traffic reports lists the volume of customers who ordered via delivery
62 4 TTABVUE 22-23; June 4, 2025 Response to Office Action at 31-32, 45-46.
63 June 4, 2025 Response to Office Action at 45.
64 Id.
65 We reach the same conclusion regarding the customer traffic records for both of the
Proposed Marks even though the actual number of customers varies between the two
restaurant locations. In both cases the evidence does not establish any connection to
perception of the interior restaurant design.

Serial Nos. 98166506 and 98120339
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services such as Eat24, Postmates, DoorDash, and UberEats, who may have never
even seen the interior design of Applicant’s restaurants.66
On intentional copying, Applicant asserts that a competitor, Carnicero
Steakhouse, uses “a similar open kitchen layout” and that:
The preparation station is arranged in the same manner,
with meat refrigeration positioned near the grill and the
bar and grill aligned side by side - mirroring the
Applicant’s distinctive operational design. These
similarities strongly suggest intentional copying,
especially when considered alongside the distinct visual
and spatial arrangement that Applicant has consistently
used . . . .67
But as discussed above with regard to inherent distinctiveness, the similarities are
limited to those that reflect common elements of an open kitchen restaurant design,
and not anything that is distinctive to Applicant. Moreover, even a cursory review of
the Applicant’s and the competitor’s interiors in the pictures Applicant provides does
not show any striking resemblance that would support an inference of intentional
copying:68
66 June 4, 2025 Response to Office Action at 45.
67 4 TTABVUE 19.
68 June 4, 2025 Response to Office Action at 27; see also 4 TTABVUE 20.

Serial Nos. 98166506 and 98120339
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[Applicant’s Specimen for ’506 Application] [Competitor’s Restaurant]
As for unsolicited media coverage, Applicant provides only one article from the
Miami New Times, which Applicant asserts is “a widely recognized digital and print
publication with a substantial readership in South Florida” and that the coverage
“was unsolicited editorial recognition - not paid advertising or promotional content.”69
However, while Applicant claims that the article “specifically referenced the
distinctive look and feel of the Applicant’s business,”70 a review of the article fails to
support this assertion. The photograph appearing immediately below the headline in
the article depicts only a platter of food.71 And the only other photograph in the article
features the overall interior of the restaurant with a focus on the dining rooms such
69 4 TTABVUE 21.
70 Id.
71 June 4, 2025 Response to Office Action at 41.

Serial Nos. 98166506 and 98120339
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that it is not possible to view the elements Applicant claims as part of the Proposed
Marks beyond the existence of a bar with stools and what may be kitchen equipment
in the background.72 Additionally, the only discussion of interior design refers to the
“dining rooms” and not to any of the elements claimed in the Proposed Marks.73 See
Palacio Del Rio, 2023 TTAB LEXIS 183, at *42 (“unsolicited media coverage directed
to the . . . hotel uniformly discusses its innovative construction techniques rather
than directing the consumer to look for the elements of the hotel’s proposed trade
dress as indicators of source of the applied-for services”).
Considering overall the evidence Applicant submitted on the Converse factors, we
find that it is insufficient to meet Applicant’s burden to establish acquired
distinctiveness for either of the Proposed Marks.
III. Applicant’s Conditional, Alternative Request to Amend to the
Supplemental Register
In the August 15, 2024 and December 11, 2024 Nonfinal Office Actions and the
July 10, 2025 Final Office Action, the Examining Attorney advised Applicant that the
Proposed Marks had “been refused registration on the Principal Register” and that
“Applicant may respond to the refusal by submitting evidence and arguments in
support of registration and/or by amending the application to seek registration on the
72 June 4, 2025 Response to Office Action at 42.
73 Id. (“The dining rooms are adorned with weathered brick and wood on the walls, mahogany
Cuban wood tables, and benches upholstered with cowhide that Espinosa handcrafts with his
father, Nicolas.”).

Serial Nos. 98166506 and 98120339
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Supplemental Register.”74 The Examining Attorney further clarified that
“[a]mending to the Supplemental Register does not preclude [A]pplicant from
submitting evidence and arguments against the refusal.”75 Applicant did not seek to
amend to the Supplemental Register in the alternative or otherwise in its response
to any of these office actions.76
In its appeal briefs, for the first time, Applicant submitted a conditional and
alternative request that, “only if the argument [sic] presented herein concerning the
Section 1, 2, 3 and 45 Refusal and 2(f) are not deemed persuasive, the Applicant
alternatively requests to amend the application to the Supplemental Register in order
to overcome the above refusals.”77
Applicant cannot make its request for an amendment conditional on the outcome
of the Board’s decision on appeal. See In re Phillips Van Heusen Corp., No. 75664835,
2002 TTAB LEXIS 45, at *2 n.2 (TTAB 2002) (denying “request in applicant’s brief
that, ‘even if these refusals are maintained, . . . its application be amended to the
Supplemental Register’” because “an application which has been considered and
decided on appeal will not be reopened for such purpose”) (citation omitted); In re
74 August 15, 2024 Nonfinal Office Action at 3-4; December 11, 2024 Nonfinal Office Action
at 4; July 10, 2025 Final Office Action at 4.
75 August 15, 2024 Nonfinal Office Action at 4; December 11, 2024 Nonfinal Office Action at
4-5; July 10, 2025 Final Office Action at 4.
76 See October 29, 2024 and June 4, 2025 Responses to Office Actions. Applicant did not
request reconsideration of the July 10, 2025 Final Office Action, and instead filed a notice of
appeal.
77 4 TTABVUE 10. Applicant reiterated its conditional and alternative request in the
conclusion of its briefs, stating: “In the alternative, and solely in the event that the Board is
not persuaded that the mark is registrable on the Principal Register, Applicant requests that
the application be amended to the Supplemental Register to permit registration.” Id. at 25.

Serial Nos. 98166506 and 98120339
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Adlon Brand GmbH & Co. KG, No. 85831682, 2016 TTAB LEXIS 526, at *30 (TTAB
2016) (“Applicant cannot, in effect, make a request for remand conditional on the
outcome of the Board’s decision in the appeal, i.e., to request, in the event that the
Board affirms the refusal, that the application be remanded so that Applicant may
submit additional evidence.”). Under Trademark Rule 2.142(g), “[a]n application
which has been considered and decided on appeal will not be reopened,” i.e., an
applicant may not amend its application at this stage, except in two very limited
situations which are not present here.78 See TBMP § 1218 (and cases cited therein).
“[O]ur prior precedents are clear that once the Board has rendered a final decision, a
request to amend to the Supplemental Register is not possible.” Integrated
Embedded, 2016 TTAB LEXIS 470, at *24.
Applicant’s request to amend the applications to seek registration on the
Supplemental Register is also untimely. “Had Applicant wished to argue
registrability on the Supplemental Register in the alternative, it should have raised
that issue prior to appeal, or sought a remand for good cause prior to final decision.”
In re Hikari Sales USA, Inc., No. 86439012, 2019 TTAB LEXIS 73, at *66-67 (TTAB
2019).
Accordingly, we deny Applicant’s conditional, alternative request to amend the
applications to seek registration on the Supplemental Register.
78 Trademark Rule 2.142(g) only allows reopening for entry of a disclaimer or upon order of
the Director. And “it has been [the] practice of the Commissioner [now Director] to refuse to
reopen, after final decision, for amendment to the Supplemental Register.” In re Integrated
Embedded, No. 86140341, 2016 TTAB LEXIS 470, at *24 (TTAB 2016) citing In re Taverniti,
SARL, No. 73397073, 1985 TTAB LEXIS 98, at *6 (TTAB 1985).

Serial Nos. 98166506 and 98120339
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Decision: We affirm the refusal to register the Proposed Marks under Sections 1,
2, 3 and 45 of the Trademark Act because they are not inherently distinctive trade
dress, and Applicant has failed to prove its claim, in the alternative, that the Proposed
Marks have acquired distinctiveness under Section 2(f). We therefore do not reach
the refusal to register based on Applicant’s failure to comply with the requirement
for an amended drawing pursuant to Trademark Rule 2.52(b)(4).