Domenic A. Tricome

Trademark Trial and Appeal BoardSep 19, 2012

No. 77619201 (T.T.A.B. Sep. 19, 2012)

THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Mailed: September 19, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Domenic A. Tricome ________ Serial No. 77619201 _______ Domenic A. Tricome, pro se. Odessa Bibbins, Trademark Examining Attorney, Law Office 105 (Thomas G. Howell, Managing Attorney). _______ Before Zervas, Cataldo and Wellington, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: Applicant, Domenic A. Tricome, has applied to register on the Principal Register the mark BULKSUPPLEMENTS.COM in standard characters for “dietary and nutritional supplements” in International Class 5.1 The trademark examining attorney refused registration under Section 2(e)(1) of the Trademark Act on the ground 1 Application Serial No. 77619201 was filed on November 20, 2008, based upon applicant’s assertion of a bona fide intent to use the mark in commerce in connection with the recited goods. Ser. No. 77619201 2 that applicant’s mark is merely descriptive of a feature or quality of applicant’s goods. When the refusal was made final, applicant appealed. Applicant and the examining attorney filed briefs on the issue under appeal. The examining attorney argues that applicant’s mark “immediately conveys to the consumer information about applicant’s goods.”2 Specifically, the examining attorney argues that “bulk” “describes a feature or intended purpose of applicant’s goods which include supplements used to swell or expand muscle.”3 In support of the refusal, the examining attorney has made of record dictionary definitions of “bulk” and “supplements.” According to these definitions, “bulk” is defined, inter alia, as follows: ADJECTVIVE “being large in mass or quantity, or volume a bulk buy; a bulk mailing;” PHRASAL VERB bulk up “to gain weight by gaining muscle dietary supplements that helped the weightlifter bulk up;” and 2 Examining attorney’s brief, unnumbered page 3. 3 Id. at 4. Ser. No. 77619201 3 IDIOM in bulk “unpackaged, loose; in large numbers, amounts or volume.4 “Supplements” is defined as follows: NOUN plural usually “dietary substances used to augment, enhance, or enrich the nutritional status of a patient.”5 The examining attorney further has made of record copies of screenshots from applicant’s internet webpage,6 excerpted below: Arginine alpha-ketoglutarate or AAKG is an amino acid derivative, commonly marketed as a bodybuilding supplement. An intermediate in the metabolism of nitric oxides, no reputable scientific evidence shows any benefits from taking AAKG as a dietary supplement Recommended dose: 3-5 grams daily; and Garbage delivers a steady flow of energy through the water it’s mixed with. Along with the increased energy you will feel mentally alert with a heightened sense of well-being. The onset is subtle but then you realize you feel extremely motivated and ready to work but you don’t feel jittery. This will help push you through the mental and muscular fatigue associated with intense training. As you consume Garbage through the day (up to 3 times daily) and as the days pass, you begin to notice better exercise efficiency, stronger muscular contractions and expanding muscle cells in the way of increased blood flow and better protein synthesis. Now you 4 American Heritage Dictionary of the English Language, 4th ed. Houghton Mifflin Company, 2000 retrieved from bartleby.com. 5 Medical-dictionary/thefreedictionary.com 6 Bulk-supplements.com Ser. No. 77619201 4 are working out longer and harder and the feeling of added strength breeds motivation by default. It is well settled that a term is considered to be merely descriptive of goods and/or services, within the meaning of Section 2(e)(1) of the Trademark Act, if it immediately describes an ingredient, quality, feature or characteristic thereof or if it directly conveys information regarding the nature, function, purpose or use of the goods and/or services. See Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052. See also In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978). It is not necessary that a term describe all of the properties or functions of the goods and/or services in order for it to be considered to be merely descriptive thereof; rather, it is sufficient if the term describes a significant attribute or feature about them. Moreover, whether a term is merely descriptive is determined not in the abstract, but in relation to the goods and/or services for which registration is sought. See In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). Thus, “[w]hether consumers could guess what the product is from consideration of the mark alone is not the test.” In re American Greetings Corp., 226 USPQ 365 (TTAB 1985). Ser. No. 77619201 5 In the instant case, the evidence made of record by the examining attorney supports a finding that, as applied to applicant’s “dietary and nutritional supplements,” the term BULKSUPPLEMENTS.COM would immediately describe, without conjecture or speculation, a significant characteristic or feature of such goods. First, BULKSUPPLEMENTS.COM merely describes supplements available in large quantity or volume over the internet. The dictionary definitions establish that “bulk” is highly descriptive of goods available in large quantity. To state the obvious, “supplements” is generic for dietary and nutritional supplements. Furthermore, it is settled that the “.com” element in the mark is not distinctive, nor does it render the mark, when viewed in its entirety, distinctive. See In re Oppendahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004); In re Reed Elsevier Properties Inc., 77 USPQ2d 1649 (TTAB 2005). In this case, we find that based upon the dictionary definitions of record, BULKSUPPLEMENTS.COM merely describes dietary and nutritional supplements available in large volume over the internet. In addition, BULKSUPPLEMENTS.COM merely describes dietary supplements available over the internet that are intended to increase one’s size or mass. According to the Ser. No. 77619201 6 above definition, “bulk” also means “being large in mass or quantity.” We further take judicial notice of the following definition of “bulk:”7 VERB (USED WITHOUT OBJECT) – “to increase in size; expand; swell”8 and “a large body, esp. of a person: he eased his bulk out of a chair.”9 As discussed above, “supplements” is generic as applied to applicant’s goods and “.com” does not render distinctive applicant’s otherwise descriptive mark. We therefore find that BULKSUPPLEMENTS.COM merely describes dietary supplements used to increase one’s mass, or bulk, that are available over the internet. Based upon the evidence of record, we find that applicant’s BULKSUPPLEMENTS.COM mark possesses two readily perceived meanings, and that both merely describe a feature or characteristic of the identified goods. These two descriptive meanings do not create a double entendre or incongruity that removes the mark from being merely 7 The Board may take judicial notice of evidence in dictionaries, encyclopedias and other standard reference texts. University of Notre Dame du Lac v. J. C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). See also B.V.D. Licensing Corp. v. Body Action Design Inc., 846 F.2d 727, 6 USPQ2d 1719 (Fed. Cir. 1988) (encyclopedias may be consulted); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1590 n.8 (TTAB 2008) (online reference works which exist in printed format or have regular fixed editions); and Sprague Electric Co. v. Electrical Utilities Co., 209 USPQ 88 (TTAB 1980) (standard reference works). 8 Random House Dictionary, Random House, Inc. (2012). 9 Collins English Dictionary, (10th ed. 2009). Ser. No. 77619201 7 descriptive. Cf. In re Colonial Stores, Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968). We also note that in coming to our determination herein, we are not bound by the examining attorney’s rationale for issuing the refusal that is the subject of the appeal. See In re D.B. Kaplan Delicatessen, 225 USPQ 342, 343 n.2 (TTAB 1985) (The Board need not “limit its determination of the question of registrability to the reasons set forth by the Examining Attorney during the prosecution of this application.”). In this case, we find that both the examining attorney’s rationale for issuing the refusal under Section 2(e)(1) and the additional rationale discussed above are supported by the evidence of record. Finally, the third-party registrations noted by applicant in his request for reconsideration for various SUPPLEMENT-formative marks as applied to dietary supplements and related goods are of little help in determining the registrability of the mark at issue in this case. As often noted by the Board, each case must be decided on its own set of facts, and we are not privy to the facts involved with these registrations. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even if prior registrations had some Ser. No. 77619201 8 characteristics similar to [applicant’s] application, the PTO’s allowance of such prior registrations does not bind the Board or this court.”] See also In re Best Software Inc., 58 USPQ2d 1314 (TTAB 2001). While uniform treatment under the Trademark Act is highly desirable, our task here is to determine, based upon the record before us, whether applicant's mark is registrable. Accordingly, we find that applicant’s mark is merely descriptive as contemplated by Section 2(e)(1) of the Act. Decision: The refusal to register is affirmed.