# United States Court of Appeals **for the Federal Circuit**

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IN RE : CORDUA RESTAURANTS, INC., Appellant

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2015

- 1432

______________________ Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 85/214,191.

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Decided: May 13, 2016

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E LIZABETH W OOD K ING , Sutton McAughan Deaver PLLC, Houston, TX, argued for appellant. Also represen ted by R OBERT J AMES M C A UGHAN , J R ., A LBERT B ERTON D EAVER , J R

.

T HOMAS L. C ASAGRANDE , Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Michelle K. Lee. Also represented by T HOMAS W. K RAUSE , C HRISTINA H IEBER , M ARY B ETH W ALKER

.

C HARLES S ARON K NOBLOCH , Arnold, Knobloch & Saunders, L.L.P

., Houston, TX, for amicus curiae Houston Intellectual Property Law Association.

______________________IN RE : CORDUA RESTAURANTS , INC

. 2

Before P ROST , Chief Judge, D YK , and S TOLL , Ci rcuit Judges.

D YK , Circuit Judge

. Cordua Restaurants, Inc. (“Cordua”) appeals from the final decision of the United States Patent and Trademark Office (“PTO”) Trademark Trial and Appeal Board (“TTAB” or “Board”) refusing registration of a stylized form of the mark CHURRASCOS. 1 In re Cordua Rests

. LP

, 110 U.S.P.Q.2d 1227, 2014 WL 1390504 (TTAB 2014) (“ Cordua ”) (affirming refusal of registration of Serial No. 85/214,191). The Board’s decision contains no harmful legal error, and the Board’s finding that the mark is generic is supported by substantial evidence. We affirm

. B ACKGROUND Appellant Cordua owns and operates a chain of five restaurants branded as “Churrascos ,” the first of which opened in 1988. The Churrascos restaurants serve a variety of South American dishes

, includ ing grilled meats ; the Churrascos menu describes chargrilled “Churrasco Steak” as “our signature.” J.A. 34. Cordua applied for registration of the service mark CHURRASCOS (in standard character format) and obtained U.S. Trademark Registration No. 3,439,321 on the Principal Register (“the ’321 Registration”) on June 3, 2008 , for use of the word in connection with “restaurant and bar services; catering .”

1 The stylized mark is

. Hereina fter we refer to this mark as “the stylized form of CHURRASCOS.”IN RE : CORDUA RESTAURANTS , INC

. 3

On January 10, 2011, Cordua filed U.S. Trademark Application Se rial No. 85/214,191 (“the ’191 Application”)

, the application at issue in this case, seeking protection of the stylized form of CHURRASCOS for use in connection with “Bar and restaurant services; C atering.” J.A. 27. The trademark examiner rejected the ’191 Application as merely descriptive and on the basis that “the applied

- for mark is generic for applicant’s services ,” barring registr ation under Lanham Act § 2(e)(1) (15 U.S.C. § 1052(e)(1)). J.A. 70. On June 14, 20 12, the examiner issued a final rejection, again refusing registration of the stylized form of CHURRASCOS on the basis of descriptiveness and genericness. With respect to genericness, t he examiner concluded that the term “churrascos” “refer[s] to beef or grilled meat more generally” and that the term “identifies a key characteristic or feature of the restaurant services, namely, the type of restaurant.” J.A. 112

– 13.
Cordua appealed to the Board, which affirmed the examiner’s refusal to register the mark for use in conne ction with restaurant services. The Board agreed with the examiner that “‘churrascos’ is the generic term for a type of cooked meat” and “a generic term for a restaurant featuring churrasco steaks.” Cordua , 2014 WL 1390504, at *6. T he Board held that Cordua’s earlier registration of the underlying CHURRASCOS word mark (the ’321 Registration ) ha d no bearing on whether the stylized form of CHURRASCOS was generic. The Board also agreed with the examiner that the stylized form of CHURRA SCOS was also ineligible for registration because it is merely descriptive of a restaurant serving barbecued steaks and because Cordua had not provided sufficient evidence of acquired distinctiveness. Cordua appealed

. W e have jurisdiction under 28 U.S.C. § 1295(a)(4)(B)

.IN RE : CORDUA RESTAURANTS , INC

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D ISCUSSION

I
We consider whether the Board erred in refusing re gistration on the ground that the mark is generic. We review the Board’s legal conclusions de novo and its factual findings for substantial evidence. Aycock Eng ’ g, Inc. v. Airflite, Inc.

, 560 F.3d 1350, 1355 (Fed. Cir. 2009)

. T he standard of genericness is a question of law that we review de novo. See In re Save Venice N .Y. , Inc. , 259 F.3d 1346, 1351

– 52 (Fed. Cir. 2001)

. The question of whether a particular mark is generic under the applicable stan dard is a question of fact

, which we review for substantial

e vidence. In re Hotels.com, L .P.

, 573 F.3d 1300, 1301 (Fed. Cir. 2009); In re Reed Elsevier Props

., Inc

. , 482 F. 3d 1376

, 1378 ( Fed. Cir

. 2007 ).
As the Supreme Court has held, “[g]eneric terms are not registrable, and a registered mark may be canceled at any time on the grounds that it has become generic.” Park ’ N Fly, Inc. v. Dollar Park and Fly, Inc. , 469 U.S. 189, 194 (1985) (citing 15 U.S.C. §§ 1052, 1064). This is so because “[g]eneric terms, by definition incapable of indicating source, are the antithesis of trademarks, and can never attain trademark status.” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc. , 828 F.2d 1567, 1569 (Fed. Cir . 1987); see also Princeton Vanguard, LLC v. Frito

- Lay N. Am., Inc. , 786 F.3d 960, 965 (Fed. Cir. 2015)

. “A generic term ‘is the common descriptive name of a class of goods or services.’” Princeton Vanguard , 786 F.3d
at 965 (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc. , 782 F.2d 987, 989 (Fed. Cir. 1986 ) ). “The critical issue in genericness cases is whether members of the relevant public primarily use or understand the term sought to be protected to refer to the genus of goods or

ser vices in question.” Ginn , 782 F.2d at 989

– 90. Under Ginn a two

- step test is applied to determine whether aIN RE : CORDUA RESTAURANTS , INC

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given term is generic. Id. at 990

. “First, what is the genus of goods or services at issue? Second, is the term sought to be registered or retained on the register unde rstood by the relevant public primarily to refer to that genus of goods or services?” Id. ; see also Princeton Va nguard , 786 F.3d at 965 ; Reed Elsevier , 482 F.3d at 1378.

“ Evidence of the public ’ s understanding of the mark may be obtained from ‘ any competent source, such as consumer surveys, dictionaries, newspapers and other public ations. ’ ” Princeton Vanguard , 786 F.3d at 965 (quoting In re Northland Aluminum Prods., Inc. , 777 F.2d 1556, 1559 (Fed. Cir. 1985 )).

II

At the outset we note that Cordua’s existing registr ation of the CHURRASCOS word mark (the ’ 321 Registr ation) does not preclude a finding that the stylized form of the mark is generic

. Cordua contends that the CHURRASCOS word mark had achieved incontestable status under 15 U.S.C. § 1064 (Lanham Act § 14) because the ’321 Registration was more than five years old at the time of the TTAB’s decision and argues that the Board’s “failure to fully consider the incontestable registration is

error

. ” Ap pellant’s Br

. at 55.

T he PTO disputes Cordua’s contention that the ’321 Registration had achieved incontestable status at the time of appeal to the TTAB. We need not address this question

, because even if the earlier registration were incontestable, incontestability is irrelevant to the que stion of genericness. Section 15(4) of the Lanham Act mandates that “no incontestable right shall be acquired in a mark which is the generic name for the goods or services or a portion thereof, for which it is reg istered.” 15 U.S.C. § 1065(4). “[A] registered mark may be canceled at any time on the grounds that it has become generic.” Park ’ N Fly , 469 U.S. at 194. “U nder the cancellation provisionsIN RE : CORDUA RESTAURANTS , INC

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of § 14 [of the Lanham Act, 15 U.S.C. § 1064], a registered

mar k that has become generic may be cancelled at any time . . . . ‘[I]ncontestability is never a shield for a mark that is generic.’” 2 J. Thomas McCarthy , McCarthy on Trademarks and Unfair Competition § 12:60 (4th ed. 2016) (“McCarthy”) (quoting Retail Servs., Inc. v. Freebies Publ ’g , 364 F.3d 535, 548 (4th Cir. 2004)). Cordua co nceded at argument that incontestability cannot protect a mark against a challenge of genericness. Thus, the Board did not err in declining to consider the alleged incontest abi lity of the CHURRASCOS word mark in evaluating the genericness of the stylized form thereof.

Cordua also argues that under § 7(b) of the Lanham Act (15 U.S.C. § 1057(b))

, registration on the Principal Register is prima facie evidence of a mark’s validity, even if the mark has not achieved incontestable status. Co rdua is correct that “[ r egistration] is ‘prima facie evidence of the validity of the registered mark .

. . .’” B&B Har dware, Inc. v. Hargis Indus. , 135 S. Ct. 1293, 1300 (2015) ( quoting 15 U.S.C. § 1057(b)). The presumption of valid ity applies generally against any challenge that the mark is invalid, including an allegation that the mark is gene ric

. S ee Coca

- Cola Co. v. Overland, Inc. , 692 F.2d 1250, 1254 (9th Cir. 1982) ( “The general presumption of validity resulting from federal registration includes the specific presumption that the trademark is not generic.” ) ; see also 2 McCarthy § 12:60 (“When the plaintiff asserts a federal registration in an infringement suit, it constitu tes a strong presumption that the term is not generic and defendant bears the burden of overcoming the presum ption.”)

. But this proceeding does not involve a challenge to the ’321 Registration and the CHURRASCOS word mark. The presumption of validity of 15 U.S.C. § 1057(b) does not carry over from registration of the older mark to a

new application for registration of another mark thatIN RE : CORDUA RESTAURANTS , INC

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happens to be similar (or even nearly identical)

. See, e.g.

, In re Shinnecock Smoke Shop , 571 F.3d 1171, 1174 (Fed. Cir. 2009) (“ Applicant’ s allegations regarding similar marks are irrelevant because each application must be considered on its own merits.”); In re Nett Designs, Inc.

, 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“Even if some prior registrations had some charact eristics similar to Nett De signs’ application, the PTO’ s allowance of such prior registrations does not bind the Board or this court.”)

. The PTO is required to examine all trademark applications for compliance with each and every eligibility requirement, including non

- genericness, even if the PTO earlier mi stakenly registered a similar or identical mark suffering the same defect. Thus, w hether or not the term “churra scos” was generic when it was registered, we, like the Board, must evaluate the evidence in the present record
to determine whether there is sufficient evidence to establish that it is ineligible

. In any event , regardless of the presumption of valid ity , in registration proceedings the PTO always bears the burden of proving genericness by clear and convincing evidence

. “The Patent and Trademark Office (PTO) bears the burden of establishing that a proposed mark is gene ric

, and must demonstrate generic status by clear [and convincing] evidence.” Hotels.com , 573 F.3d at 1302 ( citations om itted) ; s ee also In re La

. Fish Fry Prods

. , Ltd.

, 797 F.3d 1332, 1335 (Fed. Cir. 2015); In re Steelbuil ding.com , 415 F.3d 1293, 1296 (Fed. Cir. 2005); Trademark Manual of Examining Procedure (“ TMEP ”) § 1209.01(c)(i). Here , t he Board’s opinion acknowledged the presumption of non

- genericness and the correct burden of proof: “When a proposed mark is refused registration as generic, the Office has the burden of proving genericness by ‘clear evidence ’ thereof.” Cordua , 2014 WL 1390504

, at *2 (citin g Hotels.com , 573 F.3d at 1302). The Board su stained the examiner’s determination that “churrascos” isIN RE : CORDUA RESTAURANTS , INC

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a generic term with respect to restaurant services only after concluding that the examiner had proved this fact by clear and convincing evidence. “ [T]he examining attorney has established by clear evidence that the general public (the consumers of restaurant services) understands that churrascos is generic for a type of restaurant, specifically a restaurant that serves ‘churrascos.’” Id. at *3. 2

2 Cordua appears to argue that the examiner’s d etermination that the CHURRASCOS word mark is trademark

- eligible is binding on this case as a matter of issue preclusion. In B&B Hardware , the Supreme Court made clear that a decision of the TTAB may have issue preclusive effect. “So long as the other ord inary elements of issue preclusion [set forth in § 27 of the Restatement (Second) of Judgments] are met, when the usages adjud icated by the TTAB are materially the same as those before the district court, issue preclusion should apply.” 135 S. Ct. at 1310

. T he Court held that issue preclusion did apply to a TTAB decision in an inter partes opposition proceeding, noting that the procedures there resembled the procedures of a district court. Id . at 1309 (observing, inter alia , that , in opposition proceedings, “the TTAB has adopted almost the whole of Federal Rule of Civil Proc edure 26” concerning discovery). But t here is no suggestion in B&B Hardware that an examiner’s decision to register a mark or to refuse regi stration satisfies the traditional requirements of issue preclusion

. See Restatement (Second) of Judgments § 27 (1982) (requiring that an issue be “actually litigated” between parties for issue preclusion to apply); see also 4A Callmann on Unfair Competition, Trademarks and M on opolies § 26:68 (4th e d. 2015) (“A decision in an ex parte registration proceeding does not have preclusive effect in a subsequent inter partes proceeding, though statementsIN RE : CORDUA RESTAURANTS , INC

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I II

We next consider whether the Board properly dete rmined that the stylized form of CHURRASCOS is generic

. A
Cordua argues that the Board failed to apply the Ginn test correctly

. The Ginn test requires the Board to dete rmine, first, “what is the genus of goods or services at issue?” and, second, “is the term sought to be registered or retained on the register understood by the relevant public primarily to refer to that genus of goods or services?” Ginn , 782 F.2d at 9 90. Cordua complain s , inter alia

, that the Board (and the examiner) misapplied the Ginn test by concentrating on the wrong genus of services, focusing improperly on Cordua’s own services rather than on the wider genus identified in the ’191 Applica tion

, restaurant services. 3
At a few points in its decision , the Board’s analysis of genericness addressed Cordua’s own restaurant services. The Board’s opinion note d , for example, that “Churrasco Steak” is advertised as the “signature” dish of Cordua’s Churr ascos restaurants and is listed as the first entr ée on its menu, Cordua , 2014 WL 1390504, at *6, and suggest ed that “churrascos” is generic as applied to Cordua’s own restaurants: “The ‘Churras co ’ steak is clearly one of the primary items applicant’s CHURRASCOS restaurants serve,” id. at *6.

made during ex parte proceedings may be considered in later proceedings.”).

3 Cor dua applied to register the stylized form of CHURRASCOS as a mark for “Bar and restaurant se rvices; C atering.” J.A. 27

.IN RE : CORDUA RESTAURANTS , INC

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We agree with Cordua that “ a proper genericness i nquiry focuses on the description of services set forth in the certificate of registration.” Magic Wand , Inc. v. RDB, Inc.

, 940 F.2d 638, 640 (Fed. Cir. 1991) . “The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application regardless of what the

recor d may reveal as to the particular nature of an appl icant’s goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed.” Octocom Sys. , Inc. v. Hous

. Comput. Servs., Inc.

, 918 F.2d 937, 942 (Fed. Cir. 1990) ( citing cases) ; s ee also In re 1800Mattress.com IP, LLC , 586 F.3d 1359, 1361, 1363 (Fed. Cir. 2009) (defining the genus of goods or services at issue as the genus of goods or services for which the applicant sought protection, as set forth in its trademark application) ; Can

. Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n , 811 F.2d 1490, 1492

– 93 (Fed. Cir. 1987)

. Thus, t he correct question is not whether “churrascos” is generic as applied to Cordua’s own restaurants but rather whether the term i s understood by the restaurant

going public to refer to the wider genus of restaurant services. See Ginn , 782 F.2d at 990; s ee also Princeton Vanguard , 786 F.3d at 966; Reed Elsevier , 482 F.3d at 1379. T he Board’s suggestion that “churrascos” is generic as applied to Cordua’s own restaurant services miss es the point

. 4 Cordua , 2014 WL 1390504, at *6.

4 We do not suggest that Cordua’s own advertising could never be pertinent to the public’s understanding of the term “churrascos” but rather that the focus must be on the public’s understanding with respect to the overall genus of restaurant services, not limited to the term’s connection with Cordua’s own restaurants.IN RE : CORDUA RESTAURANTS , INC

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However, the Board’s apparent error in considering Cordua’s own restaurant services is harmless. A t the first step of the Ginn test, the Board properly determined “[t] he genus of goods or services at issue,” id. at *2 (quo ting Ginn , 782 F.2d at 990), and concluded that “the genus of the services at issue is adequately defined by a portion of the recitation of services in the application, specificall y ‘restaurant services,’” id. at *2 (citing Magic Wand , 940 F.2d at 640 ). This aspect of the Board’s decision reflects the correct approach , and Cordua agrees that restaurant services is the relevant genus.

B

We next address whether the term “churrascos” is g eneric for restaurant services generally, as identified in the ’191 A pplication. T he Board found, “[b]ased on the ev idence that ‘churrascos’ is the generic term for a type of cooked meat,” that “‘churrascos’ is a generic term for a
restau rant featuring churrasco steaks.” Cordua , 2014 WL 1390504, at *6. T he Board’s decision in this respect is supported by substantial evidence.

Cordua concedes that the term “churrasco” is a word in Spanish and Portuguese referring to barbecue, and the ’1 91 Application itself acknowledges that “[t]he English translation of churrascos in the mark is barbecue.” J.A. 30. “Under the doctrine of foreign equivalents, foreign words from common languages are translated into En glish to determine genericness, desc riptiveness, as well as similarity of connotation . . . .” Palm Bay Imp s. , Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772 , 396 F.3d 1369, 1377 (Fed. Cir. 2005); see also In re Spirits Int’l, N.V. , 563 F.3d 1347, 1351 (Fed. Cir. 2009). Because “churrasco” is a common word in Spanish and Portuguese and because the ’191 Application itself concedes that “churrascos” means “barbecue ,” the PTO would have been justified in translating “churrascos” into “barbecue” andIN RE : CORDUA RESTAURANTS , INC

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subsequently determining whether t he term “barbecue” is generic when applied to restaurant services. Indeed, the examiner aptly remarked that “a foreign equivalent of a generic English word is no more registrable than the English word itself.” J.A. 71.
But the examiner, and the Board, did not rely here on the doctrine of foreign equivalents. Instead, the examiner and the Board found that “churrasco” is used in the English language to refer to grilled meat. The evidence before the Board included, inter alia , three English

language di ctionaries that define “churrasco” as grilled
meat. See Cordua , 2014 WL 1390504, at *3. Two of the dictionaries specify that the meat is steak or beef. Id. The dictionaries constitute evidence that “churrasco” is a generic English

- language term for gri lled meat, especially grilled steak. Cordua essentially concedes this point. In its brief, Cordua concedes “‘churrasco’ can be used as a noun meaning grilled steak specially prepared in the churrasco style.” Appellant’s Br. at 47.
However, Cordua conten ds that the addition of the “S” at the end of CHURRASCOS makes the term non

- generic. That is, while Cordua concedes that “churrasco” describes a grilled steak, it argues that adding an “S” changes the term’s meaning because “churrascos” is not the proper pluralization of “churrasco” in Spanish. While each trademark must always be evaluated individually, plura lization commonly does not alter the meaning of a mark. See In re Belgrade Shoe Co. , 411 F.2d 1352, 1353 (CCPA 1969); Wilson v. Delaunay , 245 F.2d 8 77 , 878 (CCPA 1957). Since “churrascos” is an English

- language term, there is nothing in the record to indicate that the addition of the “S” at the end alters its meaning (beyond making the word plural). In fact, the Board found that at least one English

- language dictionary presents “churrascos” as the plural form of “churrasco,” meaning meat cooked over an open fire. Cordua , 2014 WL 1390504, at *3. TheIN RE : CORDUA RESTAURANTS , INC

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Board also credited an article that appeared in an online (English

- language) version of Esquire Magazine that used the precise term “churrascos” to refer to “juicy, charred slabs” of tenderloin steak. Id. at * 4

. There is, therefore, substantial evidence to support the Board’s conclusion that “‘chur rascos ’ is the generic term for a type of cooked meat.” Id

. Cordua next argues that “churrascos” (or “churrasco”) refers specifically to a style of grilling meat and not to
restaurant s ervices . But a term can be generic for a genus of goods or services if the relevant public

— here, the
restaurant

- going public

— understands the term to refer to a key aspect of that genus

— e.g., a key good that chara cterizes a particular genus of retail services. “A generic name of goods may also be a generic name of the service of selling or designing those goods.” 2 McCarthy § 12:23. We have held that “[t]he test is not only whether the relevant public would itself use the term to describe the genus, but also whether the relevant public would unde rstand the term to be generic.” 1800Mattress.com , 586 F.3d at 1364. “[A]ny term that the relevant public unde rstands to refer to the genus

. . . is generic.” Id.

In 1800Mattress.com , we affirmed the Board’s dete rmination that MATTRESS.COM is generic for “on line retail store services in the field of mattresses, beds, and bedding” because the term “mattress” identified a key aspect of such services. Id. at 1361, 1364. In Hotels.com

, we affirmed the Board’s determination that HOTELS.COM is generic for “provid ing information for others about temporary lodging” and “travel agency services” because the term “hotels” “names a key aspect” of such services. 573 F.3d at 1301, 1304, 1306. And in Reed Elsevier , we affirmed the Board’s determination that LAWYERS.COM i s generic for “information exchange concerning the law, legal news, and legal services,” b ecause “an integral, if not the paramount, aspect of info r-IN RE : CORDUA RESTAURANTS , INC

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mation exchange about legal services as Reed defines it concerns identifying and helping people to select la wyers.” 482 F.3d at 1379, 1380 (alterations and internal quotation marks omitted) ; s ee also In re Tires, Tires, Tires, Inc. , 94 U.S.P.Q.2d 1153, 1157 , 2009 WL 4075360, at *5 (TTAB 2009) (holding that TIRES TIRES TIRES is generic for retail tire sales); In re CyberFinancial.Net, Inc. , 65 U.S.P.Q.2d 1789, 1791 , 2002 WL 1980117, at *3 (TTAB 2002) (“[A] term which is the generic name of a particular category of goods is likewise generic for any services which are directed to or focused on that class of goods.”). 5
Thus, Cordua is wrong that “a dish, even a specialty dish, does not identify the genus of restaurant services.” Appellant’s Br. at 33. If the relevant public would unde rstand a term denoting a specialty dish to refer to a key aspect of restaurant services, then the term is generic for restaurant services. See Hunt Masters, Inc. v. Landry’s Seafood Rest., Inc. , 240 F.3d 251, 254 (4th Cir. 2001) (holding that “crab house” is a generic term referring to a class of restaurants that serve crabs).

5 Cordua argues that two precedential decisions of the TTAB, In re Le Sorbet, Inc. , 228 U.S.P.Q. 27, 1985 WL 71953 (TTAB 1985), and I n re France Croissant, Ltd. , 1 U.S.P.Q.2d 1238, 1986 WL 83305 (TTAB 1986), hold that the generic name of a food is merely descriptive but not generic for a restaurant serving that food. The PTO points out that those cases only addressed the issue of descriptiveness and did not reac h genericness. In any event, the 1800Mattress.com

, Hotels.com , and Reed Els evier decisions of our court supersede precedent of the TTAB and make clear that a term is generic if the rel evant public understands it to refer to a key aspect of the genus of go ods or services in question. 586 F.3d at 1364; 573 F.3d at 1304, 1306; 482 F.3d at 1379

– 80.IN RE : CORDUA RESTAURANTS , INC

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T here is substantial evidence in the record that “chu rrascos” refers to a key aspect of a class of restaurants because those restaurants are commonly referred to as “churrasco restaurants

. ” For example, the TTAB’s dec ision points to one newspaper article praising a “Brazilian churrasco restaurant” notable for its “sizzling food” served “on spits straight from the fire”; a second article that describes a “churrasco restaurant” as a restaurant disti nguished by serving “[m]eat of all kinds”; and a third arti cle that characterizes a “churrasco restaurant” as a kind of restaurant that serves “South American mixed grill.” Cordua , 2014 WL 1390504, at *3

– 4. Each of these articles constitutes evidence that t he restaurant

- going public understands the term “churras cos” to refer to a type of restaurant as well as a dish . Each article ther efore supports the Board’s conclusion that “there is a class of restaurants that have churrascos as a central focus of their services, and that both competitors in the field and

con sumers use the term ‘Churrasco’ to refer to this type of restaurant.” Id. at *6. We perceive no error in this part of the Board’s analysis

. C
Cordua argues that even if “churrascos” is generic as
to “churrasco restaurants” (also known as “churrascar ias”) , it is not generic as to all restaurant services. But a term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus as a whole. Thus, the term “pizzeria” would be generic for restaurant services, even though the public understands the term to refer to a particular sub

- group or type of restaurant rather than to all restaurants. See, e.g.

, Northland Aluminum , 777 F.2d at 1561 (affirming the TTAB’s determination that BUNDT is generic “for a type of ring cake”); In re Analog Devices, Inc.

, 6 U.S.P.Q.2d 1808, 1810, 1988 WL 252496,IN RE : CORDUA RESTAURANTS , INC

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at *3 (TTAB 1988) (“There is no logical reason to treat differently a term that is generic of a category or class of products where some but not all of the goods identified in an application fall within that category.”), aff ’d , 871 F.2d 1097 (Fed. Cir. 1989) (unpublished); see also Otokoyama Co. , Ltd. v. Wine of Japan Imp., Inc. , 175 F.3d 266, 271 (2d Cir. 1999) (“Generic words for sub

- classifications or varieties of a good are [ ] ineligible for trademark prote ction.”). “A registration is properly refused if the word is the generic name of any of the goods or services for which registr ation is sought.” 2 McCarthy § 12:57. A “term need not refer to an entire broad species, like ‘cheese’ or ‘cake,’ in order to be found generic.” 1–2 Anne Gilson La Londe, Gilson on Trademarks § 2.02 [7][a] (2011)

. We do not, of course, suggest that the term “churra scos” is necessarily generic as to any and all restaurant services. Had another applicant applied for registration of the mark CHURRASCOS in connection not with the entire broad genus of restaurant services but instead with

a narrower sub

- genre of restaurant at which grilled meat is not a key aspect of the service provided

— for example, vegetarian or sushi restaurants

— the result could well have been different. “[B]y expanding or contracting the definition of a ‘genus’ of produ cts, a court can substantia lly affect the final determination of whether a term is ‘generic.’” 2 McCarthy § 12:23. It is up to the applicant to identify the genus of goods or services for which it seeks protection. See 15 U.S.C. § 1051(a)(2)

, (b)(2); 37 C.F.R. §§ 2.32(a)(6)

, 2.71(a); TMEP § 1402.01; see also Stone Lion Capital Partners , L.P. v. Lion Capital LLP , 746 F.3d 1317, 1324 (Fed. Cir. 2014) (“Parties that choose to recite services in their trademark application that exceed their actual services w ill be held to the broader scope of the application.”) ; Octocom Sys. , 918 F.2d at 942 (“[R]egistrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in theIN RE : CORDUA RESTAURANTS , INC

. 17

application .

. . .”) . The PTO will generally acce pt any identification of goods or services so long as it is “specific, definite, clear, accurate, and concise.” TMEP § 1402.01; see also In re Omega SA , 494 F.3d 1362, 1365 (Fed. Cir. 2007) (holding that “[i]t is within the discretion of the PTO to requir e that one’s goods be identified with partic ularity” in a trademark application) (quoting In re Water Gremlin Co. , 635 F.2d 841, 845 (CCPA 1980)).
Here, Cordua sought registration of the stylized form of CHURRASCOS in connection with the broad genus of all restaurant services, and the question of genericness must be evaluated accordingly. As the PTO points out, registration of the stylized form of CHURRASCOS on the Principal Register would give Cordua rights that it could enforce against all others providing restaurant services, including operators of traditional Latin American churrascarias ( churrasco restaurants) that specialize in meat grilled i n the churrasco style

. See 15 U.S.C. §§ 1057(a) – (b)

, 1115; see also Stone Lion Capital Partners , 746 F.3d
at 1324 (“[T]he services recited in the application dete rmine the scope of the post

- grant benefit of registration.”); Jean Patou, Inc. v. Theon, Inc. , 9 F.3d 971, 975 (Fed. Cir. 1993) (“The benefits of a Principal Register registration apply with respect to the goods named in the registration

. . . .”); 2 McCarthy § 24:65. By seeking broad protection for its mark, Cordu a obliged the PTO to direct its generi cness inquiry to the broad category of restaurants genera lly

. 6

6 At argument, Cordua requested, for the first time, that this court remand the case back to the PT O to permit Cordua to amend the ’191 Application and narrow the identified genus of services. No such request was made before the PTO. Such a request comes too late when a case is on appeal before our court. Singleton v. Wulff , 428IN RE : CORDUA RESTAURANTS , INC

. 18

IV
Finally, we consider whether the stylization of CHURRASCOS in the ’191 Application render s the mark eligible. As the Board has previously held, “[a] display of descriptive or otherwise unregistrable matter is not registrable on the Principal Register unless the design features of the asserted mark create an impression on the purchasers separate and apart from the impression made by the words themselves, or if it can be shown by evidence that the particular display which the applicant has adop ted has acquired distinctiveness.” In re Sadoru Grp. , Ltd.

, 105 U.S.P.Q.2d 1484, 1486, 2012 WL 3875730, at *2 (TTAB 2012); see also Northland Aluminum , 777 F.2d at 1561 (affirming the TTAB’s rejection , as generic, of a stylized mark that was “not so distinctive as to create a commercial impression separate and apart from the” word itself) ; 2 McCarthy § 12:40 ; cf. In re Chem. Dynamics, Inc

. , 839 F.2d 1569, 1570 (Fed. Cir. 1988) (“In deciding whet her the design background of a word mark may be sep arately registered, the essential question is whether or not the background material is or is not inherently distin ctive. . . . If the background portion is inherently di stin ctive, no proof of secondary meaning need be introduced; if not, such proof is essential. ”) (citation, internal quotation marks, and emphasis omitted)

. The Board concluded that “the display of Applicant ’ s mark, consisting primarily of stylized letters, does not make the applied

- for matter registrable, despite the genericness of the term CHURRASCOS, since it does not create a separate co mmercial impression over and above that made by the generic term.” Cordua , 2014 WL 1390504, at *7.

U.S. 106 , 120 (1976); see also Golden Bridge Tech., Inc. v. Nokia, Inc. , 527 F.3d 1318, 1322

– 23 (Fed. Cir. 2008).IN RE : CORDUA RESTAURANTS , INC

. 19

While Co rdua now describes the stylized form of CHURRASCOS as “highly stylized,” “using a unique and arbitrary font,” Appellant’s Br. at 10, Cordua did not argue before the Board and does not argue now that this stylization creates a separate impression

, see Cordua

, 2014 WL 1390504, at *8 n.11. Cordua also did not argue that the stylization (i.e., the graphic quality) of the sty lized form of CHURRASCOS has acquired distinctiveness; instead, it has argued only that the underlying word mark has acquired distinc tiveness. The stylized nature of the mark cannot save it from ineligibility as generic.

C ONCLUSION

We affirm the TTAB’s decision that the stylized form of CHURRASCOS applied for in the ’191 Application is generic as applied to restaurant services and therefore trademark

- ineligible

. Because we hold that the Board did not err in concluding that CHURRASCOS is generic, we do not reach the Board’s alternate ground of ineligibility

, descriptiveness

. AFFIRMED