IP Law Daily, TRADEMARK—TTAB: Proposed mark MUSH was generic for cereal, (Mar 31, 2025)

By Kevin M. Finson, J.D.

The mark MUSH was legally incapable of serving as a source indicator for cereal and therefore could not be registered because the public would see it as referring to the genus of the goods in question.

A trademark examining attorney properly found that a cereal seller’s proposed mark MUSH was generic for the identified goods, the Trademark Trial and Appeal Board has held. The relevant public would see the term as indicating the genus of the goods and not as a source indicator (In re Mush Foods, Inc., No. 97315576 (T.T.A.B. Mar. 28, 2025)).

Mush Foods, Inc. (Mush) sought registration on the Principal Register for the standard character mark MUSH for “Ready-to-eat cereals; Breakfast cereals; all the foregoing made in whole or significant part of oats,” in International Class 30. The Examining Attorney refused registration on the grounds that the proposed mark was generic, or in the alternative, it was merely descriptive and that Mush had failed to show acquired distinctiveness. Mush appealed.

Genericness. The Examining Attorney presented dictionary evidence of “mush” as meaning a thick porridge made with cornmeal boiled in water or milk, and the Board took judicial notice of a dictionary definition of porridge which included oatmeal and other cereals. The Examining Attorney also presented internet evidence in the form of recipe excerpts for “oatmeal mush.”

Mush argued that the Examining Attorney had failed to present any evidence of Mush’s competitors referring to their products as “mush,” but the Board held that this was not necessary when other evidence showed that consumers would understand the term to refer to the genus of goods instead of to a particular source. The Board held that the relevant public would understand “mush” to refer to “ready-to-eat cereals” or “breakfast cereals” made entirely or in significant part of oats, and the term was therefore legally incapable of serving as a source indicator.

The Board affirmed the refusal to register on the ground that the proposed mark was generic and did not reach the question of whether the mark was merely descriptive and lacked acquired distinctiveness.

The Case is Serial No. 97315576.

Judge: Wellington, T.

Attorneys: Thomas Y. Yee (Perkins Coie LLP) for Mush Foods, Inc. William Verhosek for the USPTO.

Companies: Mush Foods, Inc.

Cases: Trademark USPTO