BFY LLC

Trademark Trial and Appeal Board

Sep 29, 2020

88090409 (T.T.A.B. Sep. 29, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: September 29, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re BFY, LLC
_____

Serial No. 88090409
_____

Erik M. Pelton of Erik M. Pelton & Associates PLLC
for BFY, LLC
Erin Z. Dyer, Trademark Examining Attorney, Law Office 130,
John Lincoski, Managing Attorney.
_____

Before Mermelstein, Wellington, and Heasley
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
BFY, LLC (“Applicant”) seeks registration on the Principal Register of the mark
ALLERGEEZ (in standard characters) for “homeopathic pharmaceuticals for use in
the treatment of allergy symptoms; medicated candies for the treatment of allergy
symptoms,” in International Class 5.1

1 Application Serial No. 88090409 was filed on August 23, 2018, based on a declared intention
to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs and other
entries on appeal are to the Board’s TTABVUE docket system.
Serial No. 88090409
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground of
mere descriptiveness.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal proceeded. We affirm the refusal to register.
I. Discussion

A. Mere Descriptiveness
In the absence of acquired distinctiveness, Section 2(e)(1) of the Trademark Act
precludes registration of a mark on the Principal Register that, when used in
connection with the applicant’s goods, is merely descriptive of them. 15 U.S.C.
§ 1052(e)(1). “A term is deemed to be merely descriptive of goods or services, within
the meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the goods or
services.” In re Canine Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1598 (TTAB 2018)
(citing In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217,
1219 (Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987);
In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015); In re Abcor
Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978)). Applicant and the
Examining Attorney are essentially in agreement on this point.2

2 Applicant’s brief, 10 TTABVUE 9; Examining Attorney’s brief, 12 TTABVUE 4.
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B. Novel, Intentional Misspelling
The Examining Attorney maintains that ALLERGEEZ “is merely a novel or
intentional misspelling of the word ‘ALLERGIES,’ which is highly descriptive as used
in the context of applicant’s goods.”3 The terms ALLERGEEZ and ALLERGIES are
phonetic equivalents, she points out, adducing evidence that the suffixes “GEEZ” and
“GIES” would be pronounced the same.4 For example, according to Dictionary.com,
“allergy” is pronounced “al-er-jee.”5 According to Stedman’s Medical Dictionary,
“allergy” is pronounced “ăl’ ɘr-jē.”6 Given that Applicant’s applied-for mark is the
phonetic equivalent of “ALLERGIES,” she concludes, it is merely descriptive of a
feature and purpose of its identified goods: pharmaceuticals and medicated candies
for the treatment of allergy symptoms.7 See In re Chamber of Commerce, 102 USPQ2d
at 1219.
We agree that a novel spelling does not overcome evidence of mere descriptiveness
if purchasers would perceive the different spelling as the equivalent of the descriptive
term. See, e.g., Nupla Corp. v. IXL Mfg. Co., 114 F.3d 191, 42 USPQ2d 1711, 1716
(Fed. Cir. 1997) (CUSH-N-GRIP “which is merely a misspelling of CUSHION-GRIP,
is also generic as a matter of law”); King-Kup Candies, Inc. v. King Candy Co., 288
F.2d 944, 129 USPQ 272, 273 (CCPA 1961) (“the syllable ‘Kup,’ which is the full

3 Examining Attorney’s brief, 12 TTABVUE 5-6, 10.
4 Examining Attorney’s brief, 12, TTABVUE 6-8. See, e.g., Dec. 10, 2018 Office Action at
TSDR 6-19; Jan. 23, 2020 Office Action at 30-39, 48-50.
5 Dictionary.com, Jan. 23, 2020 Office Action at 50.
6 American Heritage STEDMAN’S MEDICAL DICTIONARY, June 29, 2019 Office Action at 53.
7 Examining Attorney’s brief, 12 TTABVUE 5.
Serial No. 88090409
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equivalent of the word ‘cup,’ is descriptive”); In re Hercules Fasteners, Inc., 203 F.2d
753, 97 USPQ 355, 358 (CCPA 1953) (finding “Fastie” merely a phonetic spelling of
“fast tie” is descriptive); Andrew J. McFarland, Inc. v. Montgomery Ward & Co., 164
F.2d 603, 76 USPQ 97, 99 (CCPA 1947) (KWIXTART merely descriptive for electric
storage batteries); In re Calphalon Corp., 122 USPQ2d 1153, 1164 (TTAB 2017)
(finding SHARPIN phonetically identical to “sharpen,” describing knife -sharpening
goods); Nazon v. Ghiorse, 119 USPQ2d 1178, 1185 (TTAB 2016) (“one cannot obtain
rights in a mark merely by a slight misspelling of a recognized descriptive term”); see
generally 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:31 (5th ed.
Sept. 2020 update) (“A slight misspelling of a word will not usually turn a descriptive
word into a non-descriptive one.”).
The policy underlying the general rule that misspelled words may be merely
descriptive is set forth in the Restatement of Unfair Competition as follows:
The misspelling or corruption of an otherwise descriptive word will not
ordinarily alter the descriptive character of the designation. In many
instances the contrivance will not overcome the ordinary meaning of the
term, and prospective purchasers will thus continue to understand the
designation in a purely descriptive sense. Indeed, in some instances the
alteration may go entirely unnoticed by a significant number of consumers.
If the altered form is phonetically equivalent to the original word, its aural
significance will also remain merely descriptive.

RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 14, cmt. a. (June 2020 update).
Applicant does not dispute that ALLERGEEZ is the phonetic equivalent of
“ALLERGIES.”8 It admits that consumers can interpret ALLERGEEZ as “a mere

8 Applicant’s brief, 10 TTABVUE 18.
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alternative spelling of the word ‘ALLERGIES’….”9 Indeed, “Applicant does not
dispute that this meaning, if it stood alone, would be merely descriptive of the
relevant goods.”10
Applicant contends, however, that its applied-for mark “is a creative double
entendre that has multiple interpretations, which are readily apparent to the
potential consumer, and thus ALLERGEEZ is not merely descriptive of Applicant’s
medicated candies.”11 We address that contention next.
C. Double Entendre
Applicant contends that “a registrable mark can have two (or more) meanings, one
of which can be descriptive and the other suggestive.”12 In this case, it argues,
“ALLERGEEZ has an alternative meaning that would be readily perceived by
consumers as a double entendre on the phrase ‘ALLERGY EASE.’”13 “[A]pplicant

9 Applicant’s reply brief, 13 TTABVUE 6.
10 June 10, 2019 Response to Office Action at 7. Applicant offered to disclaim the exclusive
right to use the word “ALLERGIES” apart from the mark as shown. But the Examining
Attorney declined to accept the offered disclaimer, as it would be tantamount to disclaiming
the entire mark. We agree that a disclaimer would be ineffective. Consumers are unaware of
disclaimers reposing on the Principal Register. In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985) (“The public is unaware of what words have been disclaimed
during prosecution of the trademark application at the PTO.”). And the disclaimer would not
overcome its phonetic equivalence with “ALLERGIES.” We further note that “disclaimer of a
term is an admission of the merely descriptive nature of that term, as applied to the goods or
services in connection with which it is registered.” In re DNI Holdings Ltd., 77 USPQ2d 1435,
1442 (TTAB 2005). See also Quaker State Oil Ref. Corp. v. Quaker Oil Corp., 453 F.2d 1296,
172 USPQ 361, 363 (CCPA 1972) (“when it disclaimed said term in applications for
registrations of compound marks, it again admitted the merely descriptive nature of the mark
and acknowledged that it did not have an exclusive right therein at that time.”).
11 Applicant’s brief, 10 TTABVUE 10.
12 Applicant’s brief, 10 TTABVUE 20.
13 Applicant’s reply brief, 13 TTABVUE 7.
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submits that the suffix ‘-EEZ’”, “playfully and uniquely connotes that its goods are
intended to relieve a child’s allergies so that the child does not experience severe
allergic reactions.”14
We agree with the Examining Attorney, though, that this does not constitute a
double entendre. For trademark purposes, a ‘double entendre’ is an expression that
has a double connotation or significance as applied to the goods or services. In re The
Place Inc., 76 USPQ2d 1467, 1470 (TTAB 2005). If the second connotation is not
descriptive, and is readily apparent to the consumer, the expression may qualify as a
double entendre. See, e.g., In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1105
(TTAB 2018) (“A double entendre is registrable only if the second, non-descriptive
meaning would be readily apparent to the consumer from the mark itself.” ); In re
Calphalon Corp., 122 USPQ2d at 1163 (“Applicant apparently contends that the
second proposed meaning is not descriptive.”); In re Carlson, 91 USPQ2d 1198, 1201
(TTAB 2009) (“The next question we must consider is whether the ZING portion of
applicant’s mark creates a separate commercial impression, such that the mark as a
whole has a double entendre, with one meaning that is not merely descriptive.”). The
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) sums it up: “The mark that
comprises the ‘double entendre’ will not be refused registration as merely descriptive
if one of its meanings is not merely descriptive in relation to the goods or services.”
TMEP § 1213.05(c) (Oct. 2018).

14 Applicant’s brief, 10 TTABVUE 11.
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If, on the other hand, the second meaning of the term is also descriptive of the
goods or services, the applied-for mark remains merely descriptive. In In re
RiseSmart, Inc., 104 USPQ2d 1931 (TTAB 2012), for example, the applicant argued
that its applied-for mark, TALENT ASSURANCE for personnel placement and
recruitment services:
presents a double entendre in that it tells consumers that users of
Applicant’s personnel placement and recruitment services will be
presented with capable, talented candidates. It further provides an
indication of Applicant’s guarantee to its customers that their staffing
needs will be met because Applicant will supply the personnel, or to use
the slang, the “talent.”

Id. at 1934.

The Board found, however, that “to the extent it does present two meanings they
are both merely descriptive of the services in that both asserted meanings refer to the
customers’ needs being met by the provision of the appropriate capabilities/qualities.”
Id. See generally TMEP § 1213.05(c) (“If all meanings of a ‘double entendre’ are
merely descriptive in relation to the goods, then the mark comprising the ‘double
entendre’ must be refused registration as merely descriptive.”).
Here, as in RiseSmart, both (or all) of the meanings asserted by Applicant refer to
consumers’ needs being met by its products; i.e., its homeopathic pharmaceuticals
and medicated candies are designed to ease the symptoms of allergies. As the
Examining Attorney puts it:
in the unlikely chance that consumers were to, instead of or in addition to,
understand or think of the meaning for “EASE” when viewing the “-EEZ”
portion of applicant’s mark, rather than simply viewing the mark in its
entirety as a novel misspelling of “ALLERGIES”, the trademark examining
attorney submits that such alternative meaning would still be merely
Serial No. 88090409
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descriptive of a feature and purpose of applicant’s goods because the
purpose of applicant’s goods are to assist in alleviating or “easing” pain or
symptoms associated with allergies, or feature properties that allow
children to easily ingest the medication to fight allergies.15

We agree. This is consistent with generally accepted definitions of “ease,” meaning
“freedom from pain or discomfort,”16 “to free from something that pains, disquiets, or
burdens,” or “to take away or lessen: ALLEVIATE” as in “took an aspirin to ease the
pain.”17 All of these defined meanings describe the function or purpose of Applicant’s
identified goods, “homeopathic pharmaceuticals for use in the treatment of allergy
symptoms; medicated candies for the treatment of allergy symptoms.” In re Chamber
of Commerce, 102 USPQ2d at 1219.
We find, in sum, that the applied-for mark is not a double entendre.
D. Portfolio of Marks
Applicant argues that ALLERGEEZ is part of a “portfolio” of marks with an
“-EEZ” suffix. Its other claimed marks are:
 LOLLEEZ in standard characters for “medicated hard candies for sore throat
and cough relief” in International Class 5, Reg. No. 5413866, issued Feb. 27,
2018;18

 TUMEEZ in standard characters for “medicated candies” in Class 5, Reg. No.
6086186, issued June 23, 2020; and

 MOMEEZ CHOICE in standard characters for “Homeopathic pharmaceuticals
for use in the treatment of children’s ailments, namely, sore and irritated
throats, constipation, stomach gas, gastric and stomach ills, seasonal allergies,
temperament; Medicated candies” in Class 5, Application Serial No. 87941322,

15 Examining Attorney’s brief, 12 TTABVUE 10-11.
16 Merriam-Webster.com, June 10, 2019 Response to Office Action, ex. A at 12.
17 Jan. 23, 2020 Office Action (response to request for reconsideration) at 57, 64.
18 June 10, 2019 Response to Office Action, Ex. E at 24.
Serial No. 88090409
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filed on May 30, 2018 based on a declared intention to use the mark in
commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).

Applicant advertises the products on its website:

19
According to Applicant:

Applicant’s other marks demonstrate that Applicant’s ALLERGEEZ mark
has a different commercial impression or connotation from that conveyed
by a misspelled descriptive term. Therefore, ALLERGEEZ is used in a
collection of other marks by Applicant, which suggest that the products are
intended to be easily digested, ease a child ’s discomfort, and provide a
parent with a worry-free way of coping with an unhappy child who refuses
to take medicine.20

There are several problems with Applicant’s argument. First, “we must look to the
likely consumer perception of the mark in connection with the identified goods, rather

19 MomeezChoice.com, Dec. 10, 2018 Response to Office Action Ex. C at 19.
20 Applicant’s brief, 10 TTABVUE 18.
Serial No. 88090409
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than applicant’s intended connotation.” UMG Recordings, Inc. v. Mattel, Inc., 100
USPQ2d 1868, 1886 (TTAB 2011). And there is no evidence that the relevant
consumers—parents of young children—would perceive Applicant’s intent-to-use
mark as it intends.
Second, as the Examining Attorney sagely observes, Applicant’s “portfolio”
argument is roughly akin to a “family of marks” claim, in which a group of marks has
a common characteristic that is recognized by the purchasing public .21 See J & J
Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18 USPQ2d 1889, 1891 (Fed.
Cir. 1991). An applicant’s mere intention and ownership of multiple marks containing
the common characteristic do not suffice to establish its recognition by the purchasing
public. Am. Standard Inc. v. Scott & Fetzer Co., 200 USPQ 457, 461 (TTAB 1978) (“It
is settled that merely adopting, using and registering a group of marks having a
feature in common for similar or related goods with possibly the intent to establish a
‘family of marks’ identified by the common portion does not afford relief under this
theory.”). Owners of many more registered marks than Applicant have failed to
establish a family. See, e.g., Consolidated Foods Corp. v. Sherwood Medical
Industries, Inc., 177 USPQ 279, 282 (TTAB 1973) (opposer owned over 45
registrations for marks with the same suffix, but the Board held that “ownership of a
large number of registrations for marks containing a common prefix or suffix is
insufficient, per se, to establish recognition of a ‘family’ of marks.”) “It is thus
necessary to consider the use, advertisement, and distinctiveness of the marks,

21 June 29, 2019 Office Action at 4.
Serial No. 88090409
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including assessment of the contribution of the common feature to the recognition of
the marks….” J & J Snack Foods. v. McDonald’s, 18 USPQ2d at 1891-92, quoted in
In re LC Trademarks, Inc., 121 USPQ2d 1197, 1203 (TTAB 2016). This Applicant has
failed to do. Aside from its two recently issued registrations and its pending intent-
to-use applications, it proffers no evidence of the extent to which its “–EEZ” formative
marks have been used or promoted in commerce. It provides screenshots from its
website, but no indication of how frequently that website has been visited. Thus, its
“portfolio” argument fails to show that the public recognizes the “–EEZ” suffix as it
intends.
Third, as noted, even if Applicant succeeds in showing that “-EEZ” connotes
“EASE,” it merely describes a desirable characteristic, function, or purpose of
Applicant’s products. See In re Scholastic Testing Serv., Inc., 196 USPQ 517, 519
(TTAB 1977) (applied-for mark merely describes “a desirable characteristic or
purpose of applicant’s service”). So the “portfolio” argument fails to obviate the
descriptive nature of Applicant’s applied-for mark.
E. Third-Party Marks

Applicant contends that there are at least 34 active third-party marks on the
Principal Register that contain a descriptive term for various goods and services,
followed by the suffix “-EEZ.”22

22 Applicant’s brief, 10 TTABVUE 14.
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Serial No. 88090409
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Serial No. 88090409
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23
Applicant introduced this third-party evidence “to show that the suffix ‘-EEZ’ is
used by third-part[ies] as a playful and creative spelling of the phonetic equivalent
term ‘EASE.’”24

23 Applicant’s brief, 10 TTABVUE 14-16; Dec. 19, 2019 Response to Office Action (request for
reconsideration) at 7-56.
24 Applicant’s brief, 10 TTABVUE 17.
Serial No. 88090409
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The Examining Attorney points out that unlike ALLERGEEZ, which sounds like
“ALLERGIES,” most of these third-party registered marks do not form words
phonetically identical to an existing word.25 “For example, the trademark examining
attorney is not aware of a ‘real’ phonetic equivalent for the words ‘brusheez’, i.e.,
‘brushies’, ‘gripeez’, i.e., ‘gripies’, ‘fevereez’, i.e., ‘feveries’, ‘draineez’, i.e., ‘drainies’ or
the like (to name a few).”26
Applicant responds that “many of the third-party marks are phonetic equivalents
of real terms, including CURL-EEZ, WHEEL-EEZ, PUP-EEZ, FOOD .EEZ, WHEEL
EEZ, and FOOT-EEZ.”27 It argues that:
The third-party registration evidence of “-EEZ” marks suggests that
“-EEZ” is well-recognized by the public. See Juice Generation, Inc. v. GS
Enterprises LLC, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (quoting J.
Thomas McCarthy, 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:90 (4th ed. 2015) (“Third party registrations are
relevant to prove that some segment of the composite marks … has a
normally understood and well-recognized descriptive or suggestive
meaning….”).

Third-party registrations, standing alone, do not show the extent of use of marks
in commerce, or their recognition by the public. The “existence of [third-party]
registrations is not evidence of what happens in the market place or that customers
are familiar with them.” AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177
USPQ 268, 269 (CCPA 1973), quoted in In re Inn at St. John’s, LLC, 126 USPQ2d
1742, 1746 (TTAB 2018), aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019).

25 Examining Attorney’s brief, 12 TTABVUE 15.
26 Jan. 23, 2020 Office Action (response to request for reconsideration) at 3-4, 6-29 (no
dictionary definitions of these terms).
27 Applicant’s brief, 10 TTABVUE 17.
Serial No. 88090409
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They may, however, “be considered to demonstrate the meaning of a word which
comprises the mark, or a portion thereof, to show that there is a well -known and
commonly understood meaning of that word and that the mark has been chosen to
convey that meaning.” In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991)
(internal citations omitted), quoted in Sock It To Me, Inc. v. Aiping Fan, 2020 USPQ2d
10611 (TTAB 2020) (citing Juice Generation, 115 USPQ2d at 1675).
In this case, a few of the cited third-party marks, such as PUP-EEZ and FOOD
.EEZ, could be regarded as phonetic equivalents of “puppies” and “foodies.” That does
not show, however, that “-EEZ” would be taken as the equivalent of “EASE” in the
context of the third parties’ identified goods and services. For example, “foodies” is a
common term for “one who has an ardent or refined interest in food; a gourmet.”28
Whatever rationale may have prompted registration in those cases, we must
evaluate the evidence in the present record to determine whether the proposed
ALLERGEEZ mark is eligible for registration, and are not bound by the decisions of
examining attorneys in other applications. In re Cordua Rests., Inc., 823 F.3d 594,
118 USPQ2d 1632, 1635, (Fed. Cir. 2016), cited in DeVivo v. Ortiz, 2020 USPQ2d
10153, * 9 (TTAB 2020). “In a final analysis, we are not so much concerned with what
has been registered, but rather what should or should not be registered. Furthermore,

28 THE AMERICAN HERITAGE DICTIONARY, AHDictionary.com 9/26/2020. “The Board may take
judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food
Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983),
including online dictionaries that exist in printed format or regular fixed editions. In re Red
Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).” Int’l Dairy Foods Ass’n v. Interprofession
du Gruyère and Syndicat Interprofessionnel du Gruyère, 2020 USPQ2d 10892, *17 n. 115
(TTAB 2020).
Serial No. 88090409
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it has been consistently held that third-party registrations are not conclusive on the
question of descriptiveness. Each case must stand on its own merits and a mark
which is merely descriptive should not be registered merely because other such marks
appear on the register.” In re Scholastic Testing Serv., Inc., 196 USPQ at 519.
In this case, none of the third-party marks establish that -EEZ, as used in
ALLERGEEZ, would be taken as anything other than descriptive, either as part of
“ALLERGIES” or as a suffix describing “EASE”.
II. Conclusion

Applicant argues in its reply brief that “The Examining Attorney has offered no
evidence suggesting that a competitor will need to use “allergeez” to describe similar
products. In fact, the Examining Attorney has offered no evidence that anyone has
ever used the word “ALLERGEEZ” to describe similar products.”29 However, “there
is no requirement that the Examining Attorney prove that others have used the mark
at issue or that they need to use it, although such proof would be highly relevant to
an analysis under Section 2(e)(1). The correct test is whether the phrase forthwith
conveys an immediate idea of an ingredient, quality, characteristic, feature, function,
purpose or use of the goods.” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511,
1514 (TTAB 2016).
In this case, ALLERGEEZ conveys an immediate idea of the characteristics,
feature, function, and purpose of Applicant’s goods. For all the foregoing reasons, we

29 Applicant’s reply brief, 13 TTABVUE 9.

Serial No. 88090409
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find that the applied-for mark is merely descriptive of Applicant’s identified goods
under Section 2(e)(1). 15 U.S.C. § 1052(e)(1).
Decision: The refusal to register Applicant’s mark is affirmed.