Dumploads on Us took issue with Patty and Robert May who were doing business in California as Patty’s Original Cheese Zombies. Giacobazzi of Dumploads sent a letter to Patty informing her that Dumploads “owns the rights to the registered trademark “Cheese Zombie” (sic.) I will be in touch with you in the near future so we can resolve any issues in an amicable manner for all concerned.” Patty wasn’t feeling amicable, so she filed a Petition at the Trademark Trial and Appeal Board for Cancellation of the Cheese Zombies registration. She sought cancellation on the ground that the mark was generic and could not function as a trademark to indicate the source of [cheese] filled bakery products. Alternatively, she argued that Cheese Zombies was merely descriptive and that it wasn’t eligible for registration without proof that it had acquired a secondary meaning and had become an indicator of source

     I confess to being surprised that the Board held that Cheese Zombies was not generic. The two part test for genericness is (1) what is the genus of goods at issue? and (2) does the relevant public understand the designation primarily to refer to that genus of goods? The Board deemed the genus to be “filled bakery products” and the relevant public to be people “…who purchase and eat filled bakery products.” As to the public’s perception of the term, the Board looked at dictionary definitions, deposition testimony, media references, recipes, and testimony of Dumploads’ Giacobazzi. He testified that he went to Foothill Middle School, that they served Cheese Zombies in the lunchroom there, and that they called them Cheese Zombies. Nonetheless, the Board held that the evidence was insufficient “…to show that the relevant consumer would understand the term ‘cheese zombies’ as a type of ‘filled bakery products.” Hmmm. The Board had no trouble however, concluding that Patty had “…shown by a preponderance of the evidence that Defendant’s composite term “CHEESE ZOMBIES,” when viewed in relation to “filled bakery products,” immediately conveys an idea of characteristics of the goods, that is, that they are a type of baked bread product filled with cheese.” This is the definition of a merely descriptive term. Petition to Cancel granted.