Betterbiotics, Inc.

Trademark Trial and Appeal BoardAug 16, 2019

87747513 (T.T.A.B. Aug. 16, 2019)

Mailed: August 16, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— In re Betterbiotics, Inc. _____ Serial No. 87747513 _____ Ashkon Cyrus of Select Patents for Betterbiotics, Inc. Marilyn Izzi Vengroff, Trademark Examining Attorney, Law Office 112, Renee Servance, Managing Attorney. _____ Before Kuczma, Adlin and Heasley, Administrative Trademark Judges. Opinion by Adlin, Administrative Trademark Judge: Applicant Betterbiotics, Inc. seeks a Principal Register registration for the proposed mark BetterBiotics, in standard characters (with BIOTICS disclaimed1), for “Food supplements” in International Class 5.2 The Examining Attorney refused registration under Section 2(e)(1) of the Trademark Act on the ground that 1 In her June 14, 2018 Final Office Action, the Examining Attorney advised Applicant that its voluntary disclaimer of BIOTICS “is not proper in the case at hand as the mark is a unitary, compound term … applicant may request to withdraw this disclaimer from the application.” Applicant did not withdraw the disclaimer, however. 2 Application Serial No. 87747513, filed January 8, 2018 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on an alleged intent to use the mark in commerce. This Opinion is Not a Precedent of the TTAB Serial No. 87747513 2 Applicant’s proposed mark is merely descriptive of the identified goods.3 After the refusal became final, Applicant appealed and Applicant and the Examining Attorney filed briefs. I. The Evidence The Examining Attorney relies on following dictionary definitions of the proposed mark’s constituent terms: BETTER—“In a more excellent way: He sings better than his father.”4 BIOTIC—“Of or having to do with life or living organisms.”5 April 24, 2018 Office Action TSDR 14, 21. She also relies on an article posted on the Healthy Eating website entitled “What are Biotics?,” which states that the term “biotic” refers “to the biological community of living organisms on our planet – plants and animals of all sizes as well as that curious little thing we call bacteria.” Id. at 23. The article makes clear that biotics may be ingested, and differentiates between antibiotics, abiotics, prebiotics, synbiotics and probiotics, such as probiotics taken in pill form or capsule form, at times to counteract the negative effect of antibiotics. Id. at 22-25. 3 The Examining Attorney also finally refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the mark in Registration No. 4688101 as to be likely to cause confusion. 4 https://www.ahdictionary.com/word/search.html?q=better. 5 https://www.ahdictionary.com/word/search.html?q=biotic. Serial No. 87747513 3 As for the relationship between biotics and Applicant’s identified goods, the Examining Attorney relies on an article posted on the Livestrong website entitled “The Definition of Food Supplements.” It states that “food supplements” are “also called dietary supplements,” and “can help you get the nutrients you lack from your regular diet.” June 14, 2018 Final Office Action TSDR 6. Food supplements “come in tablet or gel-capsule form, as well as powders added to water.” Id. TSDR 7. Finally, the Examining Attorney relies on third-party registrations including the term BIOTICS that are used for food or dietary supplements, and that are registered on the Supplemental Register (BRAIN BIOTICS, Reg. No. 4787693), or in which the term BIOTICS is disclaimed (BEYOND BIOTICS, Reg. No. 5318405; and ELITE BIOTICS, Reg. No. 5427618). Applicant failed to timely introduce any evidence. While Applicant submitted printouts of two third-party registrations and a dictionary definition with its Appeal Brief, the Examining Attorney’s objection to this evidence because it was not filed prior to the appeal is sustained. Trademark Rule 2.142(d) (“The record in the application should be complete prior to the filing of an appeal.”).6 II. Analysis A mark is deemed to be merely descriptive, within the meaning of Section 2(e)(1), if it immediately conveys knowledge of a quality, feature, function, characteristic or purpose of the goods for which it is used. In re Bayer Aktiengesellschaft, 488 F.3d 960, 6 In any event, the materials are consistent with or duplicative of the Examining Attorney’s evidence. Serial No. 87747513 4 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) (quoting In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009)); and In re Abcor Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A mark need not immediately convey an idea of each and every specific feature of the goods in order to be considered merely descriptive; rather, it is sufficient that the mark describes one significant attribute, function or property of the goods. In re Chamber of Commerce of the United States of America, 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a mark is merely descriptive is determined not in the abstract, but in relation to the goods for which registration is sought, the context in which it is being used on or in connection with the goods, and the possible significance that the mark would have to the average purchaser of the goods because of the manner of its use. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). When two or more merely descriptive terms are combined, the determination of whether the composite proposed mark also has a merely descriptive significance turns on whether the combination of terms evokes a new and unique commercial im- pression. If each component retains its merely descriptive significance in relation to the goods, the combination results in a composite that is itself merely descriptive. See e.g., In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004) (PATENTS.COM merely descriptive of computer software for managing a database of records that could include patents, and for tracking the status of the records by means of the Internet); In re Petroglyph Games, Inc., 91 USPQ2d 1332 (TTAB 2009) Serial No. 87747513 5 (BATTLECAM merely descriptive for computer game software); In re Carlson, 91 USPQ2d 1198 (TTAB 2009) (URBANHOUZING merely descriptive of real estate bro- kerage, real estate consultation and real estate listing services); In re Tower Tech, 64 USPQ2d at 1314 (SMARTTOWER merely descriptive of commercial and industrial cooling towers); In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001) (AGENTBEANS merely descriptive of computer programs for use in developing and deploying application programs); In re Putman Publishing Co., 39 USPQ2d 2021 (TTAB 1996) (FOOD & BEVERAGE ONLINE merely descriptive of news and infor- mation services in the food processing industry). Here, the record leaves no doubt that BetterBiotics is merely descriptive. The proposed mark merely describes Applicant’s food supplements as “better” than, i.e. superior to, other “biotic” food or dietary supplements, such as probiotics taken to counteract the negative effect of antibiotics. Applicant’s voluntary disclaimer of the word “better” is effectively a concession that the term is merely descriptive. Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB 2013), aff’d 565 Fed. Appx. 900 (Fed. Cir. 2014); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc. 89 USPQ2d 1844, 1851 (TTAB 2008). Furthermore, it is settled that laudatory terms, such as “better,” are normally merely descriptive. See In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (affirming Board’s finding that THE ULTIMATE BIKE RACK is “a laudatory descriptive phrase that touts the superiority of Nett Designs’ bike racks”); In re Boston Beer Co., L.P., 198 F.2d 1370, 53 USPQ2d 1056, 1058 (Fed. Serial No. 87747513 6 Cir. 1999) (finding THE BEST BEER IN AMERICA for beer to be “a common, lauda- tory advertising phrase which is merely descriptive of Boston Beer’s goods. Indeed, it is so highly laudatory and descriptive of the qualities of its product that the slogan does not and could not function as a trademark to distinguish Boston Beer’s goods and serve as an indication of origin.”); In re The Place, Inc., 76 USPQ2d 1467, 1468 (TTAB 2005) (THE GREATEST BAR merely descriptive of restaurant and bar ser- vices, because GREATEST conveys that Applicant’s bar is superior to others); In re Carvel Corp., 223 USPQ 65, 69 (TTAB 1984) (finding AMERICA’S FRESHEST ICE CREAM generic for ice cream); In re Royal Viking Line A/S, 216 USPQ 795, 796 (TTAB 1982) (finding WORLD CLASS merely descriptive of cruise ship services, in part because “Applicant uses these words in a laudatory manner much like one would use ‘first class’ or ‘world’s finest’ or ‘world’s best’”). The term “biotics” is also clearly descriptive, as it connotes supplements containing living organisms. While “biotics” may describe ordinary foods, for example yogurt, sauerkraut and pickles (which contain probiotics), or chickpeas, lentils and garlic (which contain prebiotics), the record reveals that it also describes food supplements, such as probiotic microorganisms in pill form used to counteract the negative effect of antibiotics. April 24, 2018 Office Action TSDR 22-25. See also 4 TTABVUE 7 (Applicant’s Appeal Brief at 5) (“Betterbiotics could be seen as counteracting the effects of [antibiotics] ….”). Applicant’s identification of “food supplements” encompasses these types of supplements containing biotics, whether probiotics, prebiotics, synbiotics or another type of “biotic.” The term “biotics” is Serial No. 87747513 7 merely descriptive of food supplements containing biotics because it identifies the products’ ingredient(s). In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1576 (Fed. Cir. 2015) (“The Board found that the relevant consumer, knowing that the goods are supplements containing nopal cactus juice, would understand the mark NOPALEA to convey information that the goods contain ingredients from the Nopalea cactus …Substantial evidence supports the Board’s findings, and its conclusion that ‘nopalea’ is merely descriptive of TriVita’s goods.”). Applicant’s argument that “biotics” is not descriptive because it “has a sweepingly broad definition,” 4 TTABVUE 7 (Applicant’s Appeal Brief at 5), is not well taken. “The question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them.” DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (quoting In re Tower Tech Inc., 64 USPQ 2d 1314, 1316-17 (TTAB 2002)). Here, consumers who know that Applicant’s goods are food supplements will immediately understand that the proposed mark refers to the superior quality of their biotic ingredients.7 7 In any event, the allegedly suggestive meaning Applicant proffers for the proposed mark – that Applicant’s food supplements “might improve one’s living condition and biotic profile (especially in the gut flora) and thus give one better ‘biotics’” – is itself merely descriptive. See In re RiseSmart, Inc., 104 USPQ2d 1931, 1934 (TTAB 2012) (“to the extent it does present two meanings they are both merely descriptive of the services”); TMEP § 1213.05(c) (2015). Serial No. 87747513 8 When the merely descriptive terms “better” and “biotics” are combined, “the mark as a whole, i.e., the combination of the individual parts,” does not convey “any dis- tinctive source-identifying impression contrary to the descriptiveness of the individ- ual parts.” In re Oppedahl & Larson, 71 USPQ2d at 1372. To the contrary, from “the perspective of a prospective purchaser or user” of Applicant’s supplements, “because … the combination of the terms does not result in a composite that alters the meaning of [any] of the elements … refusal on the ground of descriptiveness is appropriate.” In re Petroglyph Games, 91 USPQ2d at 1341. III. Conclusion The record leaves no doubt that upon seeing BetterBiotics in connection with Applicant’s food supplements, consumers will immediately understand that the supplements are claimed to be superior to other food supplements containing biotics. Applicant’s competitors should, like Applicant, be free to claim that their supplements contain biotics, and that they are better in certain ways than competing supplements. In re Boston Beer Co., L.P., 47 USPQ2d 1914, 1920-21 (TTAB 1998), aff’d, 53 USPQ2d at 1056 (“These words, as well as such other expressions as ‘Best Car in America,’ ‘Best Hotel in the State’ and ‘Best Restaurant in Town,’ for example, are slogans which can be referred to as mere ‘puffery.’ Such claims of superiority should be freely available to all competitors in any given field to refer to their products or services ….”). Serial No. 87747513 9 Decision: The refusal to register Applicant’s proposed mark under Section 2(e)(1) of the Trademark Act is affirmed.8 8 We need not reach the likelihood of confusion refusal. Yazhong Investing Ltd. v. Multi-Media Tech Ventures, Ltd., 126 USPQ2d 1526, 1540 n.52 (TTAB 2018) (citing Multisorb Tech., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171 (TTAB 2013)).