Hollywood Eateries: Past and Present

I. HOLLYWOOD EATERIES: PAST AND PRESENT

"Back in the day", Hollywood insiders dined at Chasen's, Dan Tana's and Orsini's and several other well known restaurants.

Of course, today the choices are legion. DRAGO, SPAGO, CUT, MICHAEL'S, KATE MANTILINI. These are just a few of the contemporary celebrity and Hollywood Exec. haunts that have been inspired by the famed eateries of the past.

If you GO WAY BACK, think "Brown Derby" and "Musso & Frank Grill". Open still today since 1925, the famed EL CHOLO, which early on served the likes of Gary Cooper, Harold Lloyd, Bing Crosby and Loretta Young.


(Photo source: Wikipedia.org)


(Photo source: Wikipedia.org)

In this blog post, however, we are going to say a bit about one of the quintessential and fabled Hollywood eateries of the recent past, namely, Osteria Romana Orsini (aka, Orsini's), which was located on W. Pico Blvd., just east of Century City for many years, but which unfortunately shuttered in late 2003.


(Photo source: www.LoopNet.com)

As reported by Variety in its feature column, THE L.A. EATERY SCENE: "Osteria Orsini, a fixture on Pico Boulevard near 20th (Century Fox Studios) since 1976, is closing by summer's end, announces Igor Nicolas. It's to reopen as Sparks in the fall ... ." (Variety, June 25, 2003).

Research data also available online on the web includes some brief history of this famed Italian hot spot, as follows:

a. from a June 2005 L.A. Times Restaurant Review:

"... The three-story pink building opened as Osteria Romana Orsini in the late '60s. Through the years the owner brought in wave after wave of chefs and cooks and waiters from Italy. Celestino Drago started out here as a waiter. So Mauro Vincenti at Rex, remembers that they used to grow basil in big pots up on the roof, because you couldn't buy it anywhere then. Terribili later opened Alto Palato (now closed) in West Hollywood. Now, by a twist of fate, he's back at the place where he had his first job in L.A. - as owner (with Bill Chait, who founded the Louise's Trattorias)........."

b. Also from the L.A. Times, July 19, 1987:

AS THE TABLES TURN [Home Edition]

Los Angeles Times
Author: RUTH REICHL
Date: Jul 19, 1987
Section: Calendar

"We already have a great number of fine Italian restaurants, but Osteria Romana Orsini is something a little different. The food here is hearty and homey without being corny. If only the service were warmer; the owner and the waiters were so busy dancing attendance on the celebrity at the next table that they had little attention to spare for us. Osteria Romana Orsini, 9575 W. Pico Blvd., West Los Angeles, (213) 277-6050. Open for lunch Monday-Friday, for dinner Monday-Saturday. Full bar. Valet parking. All major cards accepted. Dinner for two, food only, $30-$65."

Dixon Q. Dern, Esq., the well known Los Angeles based Entertainment Attorney and Showbiz Arbitrator-Mediator, recalls Orsini's as the consummate entertainment business lunch and dinner haunt, as follows:

"The building, when I first knew it, was a restaurant called "Brownstone" or something like that. Then in the late '60s it became "Orlando-Orsini" owned by two gentlemen of the same names. Orlando split off and started Caffé Roma in Beverly Hills. Orsini stayed on at the Pico address. Through the years the owner brought in wave after wave of chefs and cooks and waiters from Italy.

Celestino Drago started out here as a waiter as did Mauro Vincenti at Rex. The main floor (below street level) was the hub for entertainment industry insiders at lunch; you would see all types of execs from Fox, MGM (later Columbia/Sony) and the agencies. Many of us had, informally, "our own table." Mine was two from the door against the south wall. At both lunch and dinner you would see célèbre types. Ironically, the second floor was a "night club" which Orsini rented out; so, one night it would be swing dancing, then Persian dancing, then whatever. Several years ago Orsini packed up and went back to his home in Italy. The most famous of the waiters, Igor (who was actually not Italian but German) tried to keep the restaurant going, but finally it sold out to a different owner. Igor, himself, ended up managing a restaurant that just opened on Sunset called Isla which, ironically, is Mexican food prepared by the last chef at Orsini.

DIXON Q. DERN, P.C.
1262 Devon Ave.
Los Angeles, CA 90024
Telephone 310-557-2244
Facsimile 310-275-7655
ddern@dixlaw.com"

As it turns out, Igor started at Orsini's when it opened in 1976 and worked there until it closed in 2003. In a conversation with the undersigned, Igor recalled many stars that he served including William Holden, Natalie Wood, David Cassidy and many others. Hollywood insiders included David Begelman, power brokers, attorneys, bankers, agents, gangsters. The clientele were principally, according to Igor, the "cognizenti", the few, the connected. The owner, Mr. Orsini, liked keeping his restaurant off the radar and avoided publicity which other establishments sought.

It is also discernible that Orsini's itself spawned yet other restaurants which now carry forth the epicurean torch, including but not limited to DRAGO and VINCENTI which are still in business, as well as others that are now gone (S. Irene Virbila, L.A. Times, "(Mauro, Rex il Ristorante, Fennel, Alto Palato – all gone now)."

Celestino Drago worked as a waiter at Orsini's until 1982 and later opened his now very well known and popular westside restaurant, DRAGO, in 1991. DRAGO in turn has led to several other restaurants including Celestino's brother, Tanino Drago, who originally worked with Celestino after following his brother to California from Italy, and has opened his own restaurant in Westwood Village, Tanino Ristorante Bar.

VINCENTI, which opened in Brentwood in 1997 was dedicated and named after the late Mauro Vincenti by his wife, Maureen, who owns and runs the restaurant along with co-owner and noted Master Chef Nicola Mastronardi.


Postscript to Orsini's: Since approximately 2004, the former Orsini's space (since extensively remodeled inside) has been occupied by a restaurant called Spark Woodfire Grill. OpenTable.com describes this new restaurant as follows: "Spark Woodfire Grill is a unique tri-level contemporary American restaurant located on Pico just West of Beverly Drive and Beverly Hills adjacent. Spark specializes in the woodfire grilling of prime steaks, fresh seafood, baby-back ribs, and Kobe beef hamburgers. The restaurant offers a full bar with over 50 signature martinis..."

II. HOW FAR WE HAVE COME SINCE THE BROWN DERBY

How far this historical progression of restaurants has come, indeed, when you consider the worldwide epicurean-merchandising empire as exemplified by Wolfgang Puck. The service mark registrations for his restaurants are just the tip of the iceberg (lettuce) when it comes to the intellectual property and licensing and merchandising machine that is everything Puck! For example, a cursory audit of the USPTO Trademark Database reveals the Wolfgang Puck trademarks and service marks as including:

WOLFGANG PUCK, Reg. No. 1901065; Reg. Date, June 20, 1995, for "restaurant services";

WOLFGANG PUCK, Reg. No. 1593275; Reg. Date, April 24, 1990, for "PACKAGED AND FROZEN PREPARED FOOD, NAMELY, PIZZA AND [ APPLE, PUMPKIN AND PECAN TARTES ]";

WOLFGANG PUCK GRILLE, Reg. No. 3498670, in International Class #43 for "restaurant and bar services";

WOLFGANG PUCK, Reg. No. 3489098, in Intl. Class #30 for "croutons; coffee beans in whole and ground form; espresso, namely, espresso beans in whole and ground form; fresh, frozen and packaged pizza; prepared, frozen and packaged entrees consisting primarily of pasta; sauces; fresh and refrigerated prepared sandwiches, namely, chicken, tuna, ham, turkey, cheese and roast beef sandwiches";

WOLFGANG PUCK, Reg. No. 3010443, Intl. Class #29 for "SOUPS; GARDEN SALADS; CHICKEN SALADS; AND VEGETABLE SALADS"; and

WOLFGANG PUCK, Reg. No. 2601677, Intl. Class #7 for " (( Electric cooking utensils, namely, [electric knives, electric food blenders for domestic use,] electric can openers))"; Intl Class #8 for "Knives, namely, chef knives, kitchen knives, butcher knives, paring knives, bread knives, slicing knives, boning knives, knife sharpeners, carving knives, non-electric can openers, (( forks, spoons, mandolines )); Intl. Class #11 for "((Domestic electric appliances, namely, fry pans, [ electric grill pans ], electric rotisseries, [ deep fryers,] ice cream machines, toaster ovens )); and Intl Class #21 for "Household kitchen utensils, namely, kitchen serving tongs, spatulas, turners, whisks, potato mashers, (( garlic presses)), ladles, graters, splatter screens, strainers; ((containers for household or kitchen use, not of precious metal,)) mixing bowls,[ canisters, ](( storage containers for food and beverages with lids )); cookware, namely, pots, metal, glass and frying pans, skillets, roasters, metal grill pans, stock pots, ((strainers, colanders; beverage glassware, stemware; dinnerware, plates, saucers, serving dishes )), [ coffee cups, charger plates;] bakeware, not toys, namely, cookie sheets, pie pans, ((baking pans,)) loaf pans, muffin pans, tube pan with fluted sides, cake pans, knife blocks";

just to name a few. There are many other registrations in multiple classes of goods and services.

III. THE VALUE OF OBTAINING A U.S. FEDERAL SERVICE MARK REGISTRATION FOR "RESTAURANT SERVICES" FOR THE NAME OF YOUR RESTAURANT

Over the years in my practice, I have been fortunate to work with several restaurant and hotel clients and have been able to help them secure the names of their restaurants as registered U.S. Federal service marks for "restaurant services". Such a registration enables them to have presumptively valid and exclusive rights throughout the United States to their service mark, which is a Huge Weapon in keeping the competition from trading on the goodwill of the client's business.

In closing, one of the most important things you can do as a restaurant owner is to seek a Federal service mark registration so that you will have exclusivity over the name of your restaurant. Thus, it is vital to carefully select the name and to conduct some due diligence and clearance efforts, followed by a U.S. Federal service mark registration, if possible. In doing so, you will do much to ensure your success down the line with your ability to enforce your right to exclusivity, which is just one of several good reasons and benefits of a U.S. Federal Service mark registration.

"TrademarkEsq is here for you !"

Will Maguire, Esq.,
Los Angeles, CA
maguire@artnet.net

USPTO Trademark Practice: The USPTO Brush-back

Subject: USPTO Trademark Practice: The USPTO Brush-back

Definition: "The USPTO Brush-back": Commonplace or typical USPTO grounds for the refusal of an application based on statutory and case law. Origin: The brushback pitch in baseball is an aggressive pitch on the inside of the plate facing the batter intended as a means for the pitcher to regain control of the inside corners of the plate. This term has been adopted and hyphenated to refer to the USPTO office practice of refusing trademarks that stretch beyond the parameters of the USPTO Rules of Practice, including but not limited to, the Lanham Act, the TMEP, TTAB rulings, etc.

Example: This term was first used in our last post on this blog in discussing the USPTO response to the filing of an otherwise merely "laudatory" trademark in an application for "THE BEST BURGER IN L.A.". For instance, in paragraph 1 of this earlier referenced blog post, this term of art was incorporated as follows: "1. THE BEST BURGER IN L.A. Is it registrable for restaurant services ? Might want to slap on a logo and some other distinctive elements as this mark may otherwise get brushed back by the USPTO as merely 'laudatory'." Additionally, in paragraph 2, "... And for those of you interested in the USPTO Template brush-back language with respect to the technical "Disclaimer" that will most certainly be required for a restaurant service mark application that includes a merely descriptive term..."

Thus, the term "brush-back" applies to grounds for refusal as well as technical requirements such as 'disclaimers' or recommendations for transfers to the supplemental register, etc. Such brush-backs are a common part of USPTO Trademark Practice. Some are well reasoned and some are not. On some occasions antiquated refusals are issued based on case law that is ambiguous and not compulsory. For instance, in the apparel field the refusal basis as to a specimen being merely 'ornamental' continues to be played out by the USPTO and Applicants. To avoid this costly and often unreasonable expense to an Applicant having to pay their attorney to traverse or overcome such a refusal, it is always recommended that an Applicant provide a sample clothing label or hang-tag that features the trademark in view of the USPTO's near-sighted position on, for example, silk-screened reproductions of the trademark directly on the garment.

In this regard, a USPTO brush-back refusal based on an apparel specimen being rejected as merely "ornamental" and thus not legitimate trademark use seems to even be supported by the TMEP at:

"Sec. 1202.03(f)(i) Slogans or Words Used on the Goods

Slogans or phrases used on items such as t-shirts and sweatshirts, jewelry, and ceramic plates have been refused registration as ornamentation that purchasers will perceive as conveying a message rather than indicating the source of the goods. See Damn I’m Good Inc. v. Sakowitz, Inc., 514 F. Supp. 1357, 212 USPQ 684 (S.D.N.Y. 1981) (“DAMN I’M GOOD,” inscribed in large letters on bracelets and used on hang tags affixed to the goods, found to be without any source-indicating significance); In re Pro-Line Corp., 28 USPQ2d 1141 (TTAB 1993) (BLACKER THE COLLEGE SWEETER THE KNOWLEDGE primarily ornamental slogan that is not likely to be perceived as source indicator); In re Dimitri’s Inc., 9 USPQ2d 1666 (TTAB 1988) (“SUMO,” as used in connection with stylized representations of sumo wrestlers on applicant’s T-shirts and baseball-style caps); In re Astro-Gods Inc., 223 USPQ 621, 624 (TTAB 1984) (“[T]he designation ‘ASTRO GODS’ and design is not likely to be perceived as anything other than part of the thematic whole of the ornamentation of applicant’s shirts.”); In re Original Red Plate Co., 223 USPQ 836 (TTAB 1984) (“YOU ARE SPECIAL TODAY” for ceramic plates found to be without any source-indicating significance)."

Such a brush-back, however, may be overcome citing other principles and case law, including both Federal Court decisions, as well as those of the TTAB.

THE BEST BURGER IN L.A.

Can you trademark that line ? Or would you rather have one for lunch ? As to the latter, I had what may be the latest and newest additional upstart contender for THE BEST BURGER IN L.A. Go no further than R + D KITCHEN in Santa Monica, across from the Aero Theater, in the same space previously occupied for many years by the Wolfgang Puck restaurant group.

One Chedder Cheeseburger with fries and cole slaw, the latter two items ala carte. The presentation, first of all, was sensational ! Where was my camera ! Then you would certainly agree. This burger must have been prepared by a cosmetic surgeon. The service was impeccable. The server friendly and helpful. Missing was the 'attitude' that is all too prevalent in L.A. And hey, the restrooms are interesting with a common set of sinks adjacent to HIS and HERS private toilets. Very hip and stunning with its mirrors, tile, and fixtures. The open kitchen behind large windows is a nice touch to the R + D concept as well. There is an extensive wine list on a very large chalkboard behind the full bar which is accented with a couple of medium size flat screen tv's in case you wanted to keep track of the V.P. debate or the Dodgers.

And so if you are wondering what THE BEST BURGER IN L.A. has to do with trademarks, well here ya go... but just a primer cuz I know you're thinkin' about that burger:

1. THE BEST BURGER IN L.A. Is it registrable for restaurant services ? Might want to slap on a logo and some other distinctive elements as this mark may otherwise get brushed back by the USPTO as merely "laudatory". And if you want to know what the USPTO thinks of laudatory marks, well here ya go straight from the horses' mouth:

"Section 2(e)(1) Refusal (e.g.., laudatory marks):

Registration is refused because the applied-for mark _________________ merely is a laudatory claim about the goods/services - 'burgers'-'restaurants'. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.

Laudatory words or terms that attribute quality or excellence to goods and/or services are considered merely descriptive. TMEP §1209.03(k). Thus, laudatory terms, phrases and slogans are nondistinctive and unregistrable on the Principal Register without proof of acquired distinctiveness. See In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (holding THE ULTIMATE BIKE RACK a laudatory, descriptive phrase that touts the superiority of applicant’s bicycle racks); In re Boston Beer Co., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) (holding THE BEST BEER IN AMERICA a laudatory, descriptive phrase for applicant’s beer and ale); In re The Place, Inc., 76 USPQ2d 1467 (TTAB 2006) (holding THE GREATEST BAR a laudatory, descriptive term for applicant’s restaurant and bar since term “greatest” immediately informs prospective purchaser that applicant’s establishment is superior in character or quality when compared to other restaurants and bars); In re Dos Padres, Inc., 49 USPQ2d 1860 (TTAB 1998) (holding QUESO QUESADILLA SUPREME a laudatory, descriptive term for applicant’s cheese).

Accordingly, the proposed mark is refused registration because it is descriptive under Section 2(e)(1) of the Trademark Act. Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration." (USPTO template remarks vis-a-vis Laudatory marks).

2. R + D KITCHEN. Definitely registrable for restaurant services if not confusingly similar to an earlier mark. "R + D" is neither descriptive or generic for restaurants and should be registrable. The term "Kitchen", however, has been held to be merely descriptive for restaurants and you would have to disclaim 'exclusivity' to the term 'kitchen'. And for those of you interested in the USPTO Template brush-back language with respect to the technical "Disclaimer" that will most certainly be required for a restaurant service mark application that includes a merely descriptive term such as "Kitchen", her ya go:

"Disclaimers

Applicant must insert a disclaimer of KITCHEN in the application because the term merely describes the goods offered by the applicant, particularly kitchen utensils and kitchen cookware. Please see the attached dictionary evidence of the term kitchen as meaning “a room or part of a room or building in which food is prepared and cooked.” Trademark Act Section 6, 15 U.S.C. §1056; TMEP §§1213 and 1213.08(a)(i).

The following is the accepted standard format for a disclaimer:

No claim is made to the exclusive right to use “KITCHEN” apart from the mark as shown.

The Office can require an applicant to disclaim exclusive rights to an unregistrable part of a mark, rather than refuse registration of the entire mark. Trademark Act Section 6(a), 15 U.S.C. §1056(a). Under Trademark Act Section 2(e), 15 U.S.C. §1052(e), the Office can refuse registration of the entire mark where it is determined that the entire mark is merely descriptive, deceptively misdescriptive, or primarily geographically descriptive of the goods. Thus, the Office may require the disclaimer of a portion of a mark which, when used in connection with the goods or services, is merely descriptive, deceptively misdescriptive, primarily geographically descriptive, or otherwise unregistrable (e.g., generic). TMEP §1213.03(a). If an applicant does not comply with a disclaimer requirement, the Office may refuse registration of the entire mark. TMEP §1213.01(b).

A 'disclaimer' is thus a written statement that an applicant adds to the application record that states that applicant does not have exclusive rights, separate and apart from the entire mark, to particular wording and/or to a design aspect. The appearance of the applied-for mark does not change."

3. All is not lost, however, because the USPTO may throw you a lifeline and extend an invitation to you to transfer your application to the "Supplemental Register", which is kind of like the USPTO's version of the NBA's Developmental League. For instance, here is the USPTO brush-back language and supplemental register invitation to an application for "THE BEST BURGERS ON EARTH", serial no. 76663664:

"The proposed mark, THE BEST BURGERS ON EARTH, merely describes a quality of the services. The services are restaurants. The proposed mark is laudatory, because it tells the potential consumer that applicant’s burgers are the best. Laudatory terms, those which attribute quality or excellence to goods or services, are equivalent to other descriptive terms under Trademark Act Section 2(e)(1), 15 U.S.C. Section 1052(e)(1). That is, laudatory terms are nondistinctive and unregistrable without proof of acquired distinctiveness. Exquisite Form Industries, Inc. v. Exquisite Fabrics of London, 378 F. Supp. 403, 183 USPQ 666 (S.D.N.Y. 1974) (EXQUISITE); In re Ervin, 1 USPQ2d 1665 (TTAB 1986) (THE ORIGINAL); In re Inter‑State Oil Co., 219 USPQ 1229 (TTAB 1983) (PREFERRED); In re Royal Viking Line A/S, 216 USPQ 795 (TTAB 1982) (WORLD CLASS); In re Wileswood, Inc., 201 USPQ 400 (TTAB 1978) (AMERICA'S BEST POPCORN! and AMERICA'S FAVORITE POPCORN!). As a result, the proposed mark must be held to be merely descriptive of the services.

Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.

Although the trademark-examining attorney has refused registration on the Principal Register, applicant may respond to the stated refusal under Section 2e1 by amending the application to seek registration on the Supplemental Register. Trademark Act Section 23, 15 U.S.C. §1091; 37 C.F.R. §§2.47 and 2.75(a); TMEP §§801.02(b), 815 and 816 et seq.

If you still have questions, check out our website at: http://www.tmesq.com where we have several articles posted which may answer your questions.

Don't forget the Carrot Cake.

"TrademarkEsq is here for you".