Metabolic Balance GmbH

Trademark Trial and Appeal Board

Sep 10, 2007

No. 79009729 (T.T.A.B. Sep. 10, 2007)

Mailed:
September 10, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Metabolic Balance GmbH
________

Serial No. 79009729
_______

Ava K. Dopppelt and Bridget C. Heffernan of Allen, Dyer,
Doppelt, Milbrath & Gilchrist, P.A. for Metabolic Balance
GmbH.

Mary Rossman, Trademark Examining Attorney, Law Office 109
(Dan Vavonese, Managing Attorney).
_______

Before Seeherman, Drost and Bergsman, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Metabolic Balance GmbH has appealed from the final
refusal of the Trademark Examining Attorney to register
in standard character form for the
following goods and services:
Computer programs for the compilation
of data, in particular that used for
the production of lists of foodstuffs
and beverages; computers; prerecorded
magnetic data carriers featuring
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 79009729
2
information for obtaining and
maintaining good health, nutritional
information about foods and recipes
that aid in obtaining and maintaining
good health; parts of the
aforementioned goods, namely computer
peripherals (Class 9);

Medical instruments and apparatus for
analyzing blood; parts of the
aforementioned goods, namely needles
and vials (Class 10);

Computerized database management for
business and marketing purposes in the
field of preparation of food and drink
lists; managing food and drink
databases for business and marketing
purposes (Class 35);

Educational services, namely conducting
seminars, workshops and demonstrations
in the field of diet and correct
alimentation, and about the art of
cooking and about food (Class 41);

Rental of computer programs; scientific
research services in the field of
health, wellness and nutrition; design
and development of computer hardware
and software; computer programming
(Class 42); and

Medical services; services of a
physician; cure clinic services, namely
medical clinic services; consultancy
services in the fields of mental
fitness, physical health and food
nutrition (Class 44).1

Registration has been refused pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. §1052(e)(1), on the ground

1 Application Serial No. 79009729, filed September 8, 2004,
based on Section 66(a) of the Trademark Act.
Ser No. 79009729
3
that applicant’s mark is merely descriptive of its
identified goods and services.
When the refusal was made final, applicant’s prior
counsel filed a notice of appeal and a request for
reconsideration. The notice of appeal failed to advise the
Board that a request for reconsideration had been filed, so
the Board, in instituting the appeal, advised applicant
that its appeal brief had to be filed within 60 days of the
filing of the notice of appeal. Applicant subsequently
obtained new counsel, who advised the Board of the filing
of the request for reconsideration, and requested that
proceedings in the appeal be suspended. Applicant’s prior
counsel was unaware of these communications, and therefore
he filed an appeal brief at the same time that the Board
issued an order suspending proceedings. As a result, the
Board allowed applicant to file a supplemental brief after
the Examining Attorney denied the request for
reconsideration, and the Board has considered applicant’s
appeal brief and supplemental appeal brief, the Examining
Attorney’s appeal brief, and applicant’s reply brief.
It is the Examining Attorney’s position that METABOLIC
BALANCE describes the subject matter of the prerecorded
media and the purposes and uses of the programs,
Ser No. 79009729
4
informational materials, blood analyzing instruments and
services identified in applicant’s application.
In support of the refusal, the Examining Attorney has
made of record evidence consisting of dictionary
definitions, excerpts from a number of websites in which
the phrase “metabolic balance” is used, and articles taken
from the NEXIS database. They include the following:
Dictionary definitions2

Metabolism: 1. The chemical processes
occurring within a living cell or
organism that are necessary for the
maintenance of life. In metabolism
some substances are broken down to
yield energy for vital processes while
other substances, necessary for life,
are synthesized. 2. The processing of
a specific substance within the living
body: water metabolism; iodine
metabolism.3

Metabolic: pertaining to or of the
nature of metabolism.4

Metabolism: 1. The sum of all the
physical and chemical processes by
which living organized substance is

2 With her appeal brief the Examining Attorney submitted a
number of dictionary definitions, and requested that the Board
take judicial notice of them. These definitions indicate that
they were taken from on-line dictionaries or reference works, and
it is not clear to us that all of these reference works also
exist in printed form. Accordingly, we have taken judicial
notice only of the definition from The American Heritage
Dictionary of the English Language , which appears on the
Bartleby.com website.
3 The American Heritage Dictionary of the English Language, 4th
ed. © 2000.
4 Dorland’s Illustrated Medical Dictionary, reported on the
Merck Source website, www.mercksource.com.
Ser No. 79009729
5
produced and maintained (anabolism),
and also the transformation by which
energy is made available for the uses
of the organism.5

Balance: The harmonious adjustment of
parts; the harmonious performance of
functions.
Equilibrium.6

Third-party websites

Forward
I first began to investigate Metabolic
Typing almost 15 years ago…. I was
intrigued when I learned of this novel
nutritional technology….
***
To sustain metabolic balance, these
people need foods that burn slowly,
such as heavier proteins and fats. On
the other hand, slow oxidizers are able
to maintain metabolic balance with
lighter food (carbohydrates) that burns
faster than protein and fat.
***
…what kinds of foods and nutrients any
person would need to establish
metabolic balance. In the years since
then, he has single-handedly expanded
and refined the foundational principles
of metabolic typing to an extraordinary
degree.
www.metabolictypingdiet.com

Low Carbohydrate Eating Plan for
Metabolic Balance & Weight Loss [title]
By Dr. Susan Bobak
Lose Weight, lose fat, balance your
body’s metabolism, blood chemistry and
lower your cholesterol.
“The Messenger,” May/June 2003
www.themessenger.info

5 Id.
6 Id.
Ser No. 79009729
6
Good health and metabolic balance
[title]
A person with disease generally has one
or more metabolic imbalances causing
the health problems.
***
I explained the earlier-mentioned
concepts and that when you are
metabolically balanced, a wonderful
series of events takes place. I said
that nothing in the way of supplements
could help her long term unless she was
metabolically balanced. Supplements
cannot be properly assimilated and
utilized by an unbalanced body.
“Townsend Letter for Doctors and
Patients,” Feb-March 2005
http://findarticles.com

In 1996, nutritionist William Wolcott
introduced me to another metabolic
balancing protocol, based on the
autonomic nervous system (ANS). This
Autonomic system, rooted in the early
research of Francis M. Pottenger, MD,
and further developed by William Donald
Kelley, DDS, relies on a different
metabolic pathway than the Oxidative
system. It looks to the relative
dominance of the two divisions of the
ANS (sympathetic and parasympathetic)
as the primary barometers of metabolic
balance.
“Townsend Letter for Doctors and
Patients,” Feb-March 2003
https://findarticles.com

Introduction to:
The Healthexcel Programmes
Dear Reader,
Thank you for your interest in The
Healthexcel Metabolic Typing
programmes.
***
From Healthexcel’s point of view,
building health is a far cry from
taking an aspirin for a headache. It
Ser No. 79009729
7
involves consideration of a new
metabolic ecological lifestyle and
takes time and dedication to reach the
worthwhile goal of optimum health.
***
In addition, it is necessary that
periodic metabolic typing reevaluations
of your progress be made to determine
if any changes have occurred that might
require an alteration in your
ecological lifestyle program. These
periodic reevaluations are intended to
assure that metabolic balance is
maintained and that new imbalances are
not created.
Healthexcel, Inc.
www.healthexcel.com

Metabolic balance of calcium and
phosphorus during lactation in Mexican
rural women [title]
Abstract
Objective. To compare the balance of
calcium (Ca) and phosphorus (P) between
lactation and weaning, and to determine
the Ca and P milk production in Mexican
rural lactating women..
www.imbiomed.com

Metabolic balance studies in premature
infants [title]
Many investigators over the past three
decades have successfully conducted
traditional metabolic balance studies
in efforts to determine the retention
rates of key nutrients important to the
optimal growth of preterm infants.
Differences in methodologies discussed
in this review may explain the
inconsistent results of balance studies
reported for some nutrients,
particularly calcium.
… This review describes the methods of
specimen collection for metabolic
balance studies in VLBW preterm infants
that demonstrated reproducible data.
www.ncbi.nim.nif.gov
Ser No. 79009729
8

Lose Weight & Keep It Off [title]
***
Glucagon, in proper metabolic balance,
causes you to burn stored body fat.
***
When glucagon is “driving the metabolic
process” new fat is NOT being made,
excess fat is being burned for energy,
and blood chemistry is IMPROVING in a
number of very beneficial ways.

These are excellent reasons to adopt a
diet that shifts your metabolic balance
in favor of glucagon production rather
than insulin production.
***
Taking more and more insulin to lower
blood sugar results in having far more
insulin in your system than normal.
This insulin imbalance sets the stage
for serious problems and unless
metabolic balance is restored, big
problems are on the road ahead.
***
Increased insulin levels results in
higher triglyceride and cholesterol
levels and MUCH worse if metabolic
balance is not restored.
***
In the 5 Steps to Optimal Health, you
learn everything you need to know to
lose weight permanently, increase your
energy, restore metabolic balance and
literally improve your health in every
way measurable.
www.totalhealthdynamics.com

A long-term metabolic balance study in
young men to assess the nutritional
quality of an isolated soy protein and
beef proteins [title]
To evaluate the capacity of an isolated
soy protein to maintain long-term
protein nutritional status in healthy
young adult men, an 84-day metabolic
balance experiment was conducted….
Ser No. 79009729
9
The American Journal of Clinical
Nutrition, Vo. 39, 8-15 © 1984
www.ajcn.org

NEXIS articles
A weight-loss program that included one
fish meal a day helped 69 obese men and
women with high blood pressure slim
down and improve their basic metabolic
balance as well, says a report in the
American Journal of Clinical Nutrition.
“San Antonio Express-News,” December 8,
1999
[also reported in “The Washington
Post,” November 16, 1999]

In spite of the advances in controlling
insulin and blood sugar levels, we
still can’t match the human body for
intricacy of metabolic balance and
precision. For this reason, most of
the treatment for diabetes still hinges
on diet and nutrition.
“Food Processing,” April 1, 2005

In the 1970s, nutritionists and
biochemists began to elucidate the
relationship between the consumption of
essential fatty acids and very potent
metabolic regulators called
eicosanoids. Eicosanoids mediate a
wide variety of metabolic processes,
ranging from blood clotting to immune
activities. Healthy metabolic balance
depends upon a delicate interplay
between different eicosanoids.
“Food Processing,” June 1, 2000

Juvenile Diabetes [headline]
Testimony by: Mary Tyler Moore,
International Chairman
Affiliation: Juvenile Diabetes Research
Foundation
Body:
***
Ser No. 79009729
10
That means I have struggled every day
of every one of those years to achieve
metabolic balance between what I eat,
what I do, and how I feel.
***
It means that even with day-in, day-
out, round-the-clock vigilance, I have
often been unable to achieve good
metabolic balance, my blood sugar
levels going dangerously high or low.
“CQ Congressional Testimony,” June 21,
2005

In addition, the Examining Attorney has submitted
certain third-party registrations7 for marks containing the
word METABOLIC, in which this word has been disclaimed.
See, e.g., Registration No. 1513581 for METABOLIC CURRENTS
for newsletter relating to metabolism; Registration No.
2361138 for ICMT INTERNATIONAL CENTER FOR METABOLIC TESTING
for “operation of a scientific research and testing
facility in the field of oxidative stress and damage and
the prevention thereof through nutritional
supplementation”; and Registration No. 2367639 for
METABOLIC EDGE NUTRITION TECHNOLOGY THAT WORKS for
“counseling in the fields of health, nutrition and
exercise.” Third-party registrations that include
disclaimers of a term can show that a term has been

7 The Examining Attorney has also submitted third-party
applications for “METABOLIC” marks. These applications are
probative only of the fact that the applications were filed, and
therefore have no value in showing the descriptiveness of
“metabolic.”

Ser No. 79009729
11
regarded as merely descriptive. See In re Box Solutions
Corp., 79 USPQ2d 1953, 1955 (TTAB 2006). The Examining
Attorney also made of record a now-cancelled registration,
No. 2133382, in which “metabolic balance” is used in the
identification of goods (“over-the-counter homeopathic
medicine for the assimilation of essential nutrients for
optimal growth and development and for maintenance of
metabolic balance”), thereby indicating that this is an
understood term for such goods.
Finally, the Examining Attorney has submitted excerpts
from applicant’s website. The website is in German, and
the excerpts were “automatically translated” by the Google
website. Applicant, in its reply brief, states that it is
“a very rough translation of a German website into the
English language and is, therefore, not reliable evidence
in the instant proceeding.” P. 3. We agree that the
translation uses, to say the least, awkward wording.
However, applicant had ample opportunity to provide a
better translation or to correct mistranslations of any
phrases during the course of examination, since the
Examining Attorney made the excerpt of record with the
first Office action. By waiting until the submission of
its reply brief applicant has unduly delayed in raising its
objection to the translation. Nevertheless, we have not
Ser No. 79009729
12
treated the references to “metabolic balance,” shown in
lower case in the translation, as being non-trademark use,
since we cannot ascertain whether this is how the term
appears in the original version.8 The translation indicates
that METABOLIC BALANCE is used in connection with healthy,
balanced nutrition, and that applicant’s program is based
on a special computer program developed in co-operation
with physicians, “nourishing scientists” and computer
specialists to provide a balanced nourishing plan, a plan
through which nutrition is converted to energize the
metabolism. The website states that re-establishing
natural equilibrium in nutrition results in various health
improvements, including weight reduction and improvement of
efficiency and appearance. The Examining Attorney also
submitted excerpts from the UK website www.helpinghands-
uk.com, which applicant acknowledges refers to applicant’s
own goods and services. Reply brief, p. 4. This website,
which is in clear and understandable English, explains that
applicant’s products and services are designed for
“holistic metabolism & weight adjustment” that “offers you
a solution to eat healthy, improve your metabolism and

8 Applicant states, at footnote 1 of its reply brief, that the
English version of its website shows no descriptive use of the
mark. That version is not of record, and applicant’s comments in
this regard have not been considered.

Ser No. 79009729
13
adjust your weight gently,” and that this plan “balances
the metabolism and hormones.” This is a nutritional
program which claims to provide improvements for various
health disorders. The health benefits include:
Fast Results: Women average 5
lbs/week, men 7 lbs/week weight loss

Long Term Weight Loss: European
Studies show that 70% of participants
maintain weight loss after 2 years.

Balanced: The metabolism change in
achieved with a personalized precise
and balanced nutritional plan. No low
carbs. No protein only. The new type
of nutrition stimulates the release of
insulin, a key metabolism hormone, with
consequences for our body, weight and
health.

Applicant acknowledges that “the terms ‘metabolic’ and
‘balance’ may be terms used alone or together in the
healthcare field.” Response filed November 22, 2005. See
also request for reconsideration filed June 29, 2006
(“While the phrase ‘metabolic balance’ may be a phrase that
has been used in the healthcare field…”; “The phrase
‘metabolic balance’ refers to a condition, usually a
beneficial condition, of health or of the human body.”).
However, applicant disputes that METABOLIC BALANCE is
descriptive of the particular goods and services identified
in applicant’s application. Rather, applicant asserts that
it takes imagination or multistage reasoning to associate
Ser No. 79009729
14
the attributes of a healthy body to the particular goods
and services in the identification.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052(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 Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not
immediately convey an idea of each and every specific
feature of the applicant’s goods or services in order to be
considered to be merely descriptive; rather, it is
sufficient that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is
merely descriptive is determined not in the abstract, but
in relation to the goods or services for which registration
is sought, the context in which it is being used on or in
connection with the goods or services, and the possible
significance that the term would have to the average
purchaser of the goods or services because of the manner of
its use; that a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204
Ser No. 79009729
15
USPQ 591, 593 (TTAB 1979). Moreover, if the mark is
descriptive of any of the goods or services for which
registration is sought, it is proper to refuse registration
as to the entire class. In re Analog Devices Inc., 6
USPQ2d 1808 (TTAB 1988), aff’d without pub. op., 871 F.2d
1097, 10 USPQ2d 1879 (Fed. Cir. 1989).
Applicant has acknowledged that its goods and services
“are intended to promote a healthy body through healthy and
balanced nutrition.” Reply brief, p. 3. The website
evidence for applicant’s own product/program shows that it
offers a personalized balanced nutritional plan that
releases insulin, a key metabolism hormone. The third-
party website evidence, as well as the NEXIS articles, show
that the term “metabolic balance” is used to refer to
healthful nutrition and the interrelationship between
nutrition and how the body functions. When this term is
used in connection with applicant’s identified goods and
services, it immediately and directly conveys to
prospective consumers that a major characteristic of the
goods and services is to create and/or maintain metabolic
balance. In fact, the term “metabolic balance” so
perfectly captures the concept of nutrition that results in
the correct proportions of hormones, etc. for correct body
processes that it is difficult to find other terms that
Ser No. 79009729
16
convey this thought as clearly, such that it would be a
hardship for competitors if they were unable to use this
term to describe their own goods and services.
Applicant asserts that, as used in the various
articles and websites, the term “metabolic balance” “is
imprecisely and inconsistently used when used descriptively
by third parties and either refers to a type of scientific
study, a balance of a particular substance in the body, or
an undefined condition in the human body.” Brief, p. 8.
As a result, applicant claims that when METABOLIC BALANCE
is used in connection with applicant’s various goods and
services, it takes imagination or multistage reasoning to
associate the term with the goods or services, or the term
does not immediately, directly and with particularity
describe any attribute, purpose and/or characteristic of
applicant’s identified goods or services.
We disagree. While the term “metabolic balance” is
used in various articles, the meaning remains essentially
the same. That is, “metabolic balance” scientific studies
relate to the balance of a particular substance in the
body, and the condition of the human body refers to whether
substances are in balance. It is not necessary that the
mark METABOLIC BALANCE provide information about what
specific substance may or may not be in balance for the
Ser No. 79009729
17
term to be merely descriptive. Thus, with respect to the
goods in Class 9, METABOLIC BALANCE describes that the
information provided by the “prerecorded magnetic data
carriers featuring information for obtaining and
maintaining good health” and the “nutritional information
about foods and recipes that aid in obtaining and
maintaining good health” relate to the general subject of
metabolic balance. Similarly, with respect to the goods in
Class 10, METABOLIC BALANCE describes the purpose of the
medical instruments and apparatus for analyzing blood,
i.e., to check the metabolic balance of substances in the
person whose blood is being tested. METABOLIC BALANCE also
describes the characteristic or purpose of the
“computerized database management for business and
marketing purposes in the field of preparation of food and
drink lists” in Class 35, i.e., to maintain metabolic
balance, while METABOLIC BALANCE directly conveys the
subject matter of the “seminars, workshops and
demonstrations in the field of diet and correct
alimentation” in Class 41. Similarly, METABOLIC BALANCE
tells consumers what the subject matter of the “scientific
research services in the field of health, wellness and
nutrition” in Class 42 is, and also tells consumers the
subject matter and/or focus of the “medical clinic
Ser No. 79009729
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services” and “consultancy services in the fields of mental
fitness, physical health and food nutrition” in Class 44.
As we previously pointed out, if METABOLIC BALANCE is
merely descriptive of any of the goods or services in a
class in the application, it is appropriate to refuse
registration as to the entire class. In re Analog Devices
Inc., supra.
Applicant makes the argument that prospective
purchasers are not likely to come into contact with the
Internet article “Lose Weight and Keep it Off” or with the
abstracts of medical texts that the Examining Attorney has
made of record. As a result, applicant contends that
consumers would not be influenced by them or would use them
as a basis for considering the mark METABOLIC to be merely
descriptive of applicant’s goods and services. There are
several problems with applicant’s position. First, the
evidence of record shows that term “metabolic balance” is
used in articles that are designed to reach the general
public. See, for example, the articles in “The “Washington
Post” and the “San Antonio Express-News.” Several of the
Internet websites are also clearly directed to the general
public, e.g., www.metabolictypingdiet.com,
www.healthexcel.com and the various Townsend Letters for
Doctors and Patients. Second, the articles show that the
Ser No. 79009729
19
authors and speakers quoted therein regard “metabolic
balance” as an appropriate term to convey to non-medical
personnel information about nutrition and its effects on
body processes. Third, applicant itself acknowledges that
many of the articles and websites would be seen by doctors
and the like, and such individuals must be considered to be
among the consumers of applicant’s goods and services. For
example, the “medical instruments and apparatus for
analyzing blood” may well be used by medical personnel, and
such individuals could also use the computer programs for
the compilation of data and the computerized database
management services, attend applicant’s educational
seminars and workshops, rent applicant’s computer programs,
and use applicant’s consultancy services in connection with
treating their patients.
Applicant also argues that the evidence submitted by
the Examining Attorney “fails to show that the words
METABOLIC BALANCE form the descriptive name for computer
programs, informational materials, medical instruments,
databases or educational services, rental of computer
programs, or medical services, or any other of the goods or
services listed in Applicant’s application.” Supplemental
brief, p. 4. To the extent that applicant is asserting
that it is the Office’s burden to show that the mark is the
Ser No. 79009729
20
name of the goods or services, that is an incorrect
statement of the law. To be properly refused registration
under Section 2(e)(1) of the Trademark Act, a mark need
only describe a significant characteristic or quality or
purpose of the goods or services. It is not necessary that
the Office show that the mark is a generic term. Nor are
we persuaded by applicant’s assertion that the Office has
failed “to show that the words METABOLIC BALANCE are in
common usage by anyone as a descriptive name for computer
programs, informational materials, medical instruments,
databases or educational services, rental of computer
programs, or medical services, or any other of the goods or
services listed in Applicant’s application.” Supplemental
brief, p. 5. It is not necessary that the Office show that
others are using the term for the specific goods and
services listed in the application, only that the Office
show that the term, if used for those goods and services,
would be understood as directly conveying information about
them. Otherwise an applicant that was the first to adopt a
descriptive term for particular goods or services would be
able to obtain exclusive rights to it, to the detriment of
competitors. As we have previously stated, the evidence
made of record by the Examining Attorney is sufficient to
show that METABOLIC BALANCE used in connection with
Ser No. 79009729
21
applicant’s various identified goods and services directly
conveys information about a characteristic or purpose of
the goods or services.
Accordingly, we find that the Office has met its
burden of demonstrating that METABOLIC BALANCE is merely
descriptive of applicant’s goods and services in each class
of the application.
Decision: The refusal of registration is affirmed.