Note to Trademark Office: This is Not Trademarkable

ATX Brands LLC, which owns Bikinis Sports Bar and Grill (in Bikinis, TX), has obtained a federal trademark for the mark “Breastaurant” in connection with “restaurants and bars.”  [I was hoping that this Yahoo story got it wrong somehow – but I checked at the Trademark Office site, and indeed, the term has been registered as a trademark.]

It’s a nice, textbook example of something that does not get trademark protection.  There is a fundamental principle of trademark law:  generic terms — terms that define a class of goods or services — can never get trademark protection.

Here’s the article from Yahoo News:

While Hooters, Twin Peaks, the Tilted Kilt and other chain restaurants that feature bodacious waitresses in skimpy outfits have been called “breastaurants” for years, the owner of the Texas-based Bikinis Bar and Grill is the first to make it official.  Doug Guller, CEO of ATX Brands LLC, which owns Bikinis Sports Bar and Grill, announced today he has trademarked the term “breastaurant” through the United States Patent and Trademark Office, meaning his company is the only one who can describe itself with the term.

“We’re really excited about receiving this federal trademark,” Guller said in a statement. “Our team has worked hard over the last seven years to offer a unique experience to our fans. It just further solidifies that Bikinis Sports Bar & Grill is America’s ONLY breastaurant.” . . . 

The trademark is a major move in the “breastaurant” industry. . . . Breastaurants are $1 billion-plus industry, and places like Twin Peaks, the Tilted Kilt, Bone Daddy’s and others are in a heated fight to knock the reigning breastaurant king, Hooters,off its throne.. . . Also competing is Canz, a New York-based roadhouse-themed sports bar that did what many would consider to be impossible. It successfully launched in the middle of the recession and the customers came flocking in. “Our profits ranged a little over $2 million in our first year in 2008 and showed great signs of growth,” said Canz owner Tim Lorito.  Three restaurants later, Lorito said, the formula or sports, beer and, of course, lots of young ladies — waitresses wear tight black tanks and jean shorts — is working.”I think being a great breastaurant goes hand in hand with being a great sports bar,” Lorito said. “I think the atmosphere that that creates gives us an advantage over any other of our competitors.”

That’s five separate uses of the word “breastaurant” in its generic sense — to describe a class of restaurants.  It is not being used to distinguish one restaurant from another (the real function of a trademark).  EVEN THE TRADEMARK OWNER USES THE TERM IN ITS GENERIC SENSE:  When Guller says “Bikinis Sports Bar is America’s ONLY breastaurant” he’s using a (trademarkable) identifier for his restaurant (“Bikinis Bar and Grill”) and saying that it is a member — indeed, the only member — in this particular class of restaurants (“breastaurants”).

That is a textbook generic identifier.  How in Heaven’s name this could have slipped by the Trademark Office is completely beyond me.

[Thanks to R. Vesprey for the pointer]