On Tuesday, the Ninth Circuit Court of Appeals settled an appeal by The Herbal Chef, LLC (“THC”) and held the words “The Herbal Chef” do not qualify for trademark protection. The short memorandum opinion affirmed summary judgment granted by Central District Court Judge, Andre Birotte Jr., in favor of defendant AFG Distribution, Inc. (“AFG”) in March 2020.
Some background: THC is a California company that has been providing private dining and catering services incorporating cannabis and other herbs since 2014. THC has also been promoting cannabis education awareness within the food and beverage industry. AFG is a North Carolina corporation that sells cooking products, some under the branding of “Herbal Chef.” It goes without saying that THC and AFG are two very different types of companies.
Interestingly, AFG was issued a trademark for “Herbal Chef” by the USPTO in September 2016 for specific classes of products like baking dishes, pot holders, trivets (Class 21), and electric food processors (Class 7). One year later, THC filed its own trademark application for the mark “THE HERBAL CHEF” for meal preparation, catering services, and private dining (Class 43), alleging it had begun using THE HERBAL CHEF mark in commerce in August 2015. The