Last month, the Federal Circuit affirmed the Trademark Trial and Appeal Board’s (TTAB) finding that Emporium Arcade Bar could not register the mark shown below without disclaiming EMPORIUM.
The TTAB found that the word EMPORIUM is descriptive of “video and amusement arcade services,” “bar services,” and “bar services featuring snacks.” The TTAB further found that EMPORIUM is descriptive of both arcade and bar services and, therefore, not registrable. The Federal Circuit concluded that substantial evidence supported the TTAB’s finding, which was based upon dictionary definitions and other third-party registrations disclaiming EMPORIUM.
Separately, Emporium argued that the terms EMPORIUM and ARCADE BAR form a single “unitary mark” and, therefore, it would be unnecessary to disclaim EMPORIUM. The TTAB disagreed, stating that EMPORIUM ARCADE BAR does not constitute a unitary mark because it does not possess a “distinct meaning of its own.” The Federal Circuit again agreed with the TTAB, noting that for “a composite mark to qualify as a ‘unitary mark,’ the elements of the composite must be ‘inseparable.’” A unitary mark must have a “distinct meaning of its own independent of the meaning of its constituent elements.” EMPORIUM ARCADE BAR does not possess such independent significance, the TTAB concluded and the Federal Circuit affirmed. For those reasons, the Federal Circuit concluded that the TTAB’s findings that (1) EMPORIUM is descriptive of the arcade bar’s services and (2) that EMPORIUM ARCADE BAR is not a unitary mark are both supported by substantial evidence.
If you are an Emporium fan, do not fret. We have confirmed through independent research that Emporium Arcade Bar is still serving beers and offering NBA Jam, with or without a registered mark.