In Re: Ddmb, Inc., 681 F. App'x 919

DDMB sought federal trademark registration for "EMPORIUM ARCADE BAR and Design" for video/amusement arcade services (Class 41) and bar services (Class 43).
The Examining Attorney required disclaimers for descriptive components; DDMB agreed to disclaim "ARCADE BAR" but refused to disclaim "EMPORIUM."
The Trademark Trial and Appeal Board affirmed the refusal, finding "EMPORIUM" merely descriptive of the claimed services and requiring its disclaimer.
The Board relied on dictionary definitions showing "emporium" connotes size, variety, and trading activity; it also relied on definitions of "arcade" and "bar" and several third-party registrations disclaiming "EMPORIUM."
DDMB argued "EMPORIUM" is suggestive (too broad/vague to convey services immediately) and that the full phrase forms a unitary mark ("incongruous redundancy") not requiring a disclaimer.
The Federal Circuit reviewed factual findings for substantial evidence and legal conclusions de novo and affirmed the Board: "EMPORIUM" is merely descriptive as applied and the composite is not unitary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "EMPORIUM" is merely descriptive of DDMB's services	"EMPORIUM" is suggestive; dictionary meanings are too broad/vague to immediately convey arcade or bar services	"EMPORIUM" conveys a commercial establishment with a variety of goods/services (bars and arcades fit this meaning) and is therefore descriptive	EMPORIUM is merely descriptive as applied to arcade and bar services; Board's finding supported by substantial evidence
Whether "EMPORIUM ARCADE BAR" is a unitary mark exempting "EMPORIUM" from disclaimer	The combination is an unusual, unitary phrase (incongruous redundancy) that creates a single commercial impression	The terms create separate impressions; the composite has no distinct meaning independent of its elements	Not unitary; composite does not have an independent meaning, so disclaimer may be required

In re Int’l Flavors & Fragrances Inc., 183 F.3d 1361 (Fed. Cir.) (de novo review of legal conclusions)
On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080 (Fed. Cir.) (substantial-evidence review of Board factual findings)
In re Pacer Tech., 338 F.3d 1348 (Fed. Cir.) (definition of substantial evidence)
In re TriVita, Inc., 783 F.3d 872 (Fed. Cir.) (descriptiveness is a factual question)
In re Oppedahl & Larson LLP, 373 F.3d 1171 (Fed. Cir.) (definition of descriptive marks)
Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538 (U.S.) (classic definition of descriptiveness)
Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555 (Fed. Cir.) (unitary-mark doctrine)
Application of Colonial Stores, Inc., 394 F.2d 549 (C.C.P.A.) (composite may acquire distinct meaning independent of components)
In re Stereotaxis, Inc., 429 F.3d 1039 (Fed. Cir.) (PTO may require disclaimer if descriptive for any listed goods/services)