Nature’s Finest Foods, LLC

Trademark Trial and Appeal Board

Sep 29, 1999

No. 75341506 (T.T.A.B. Sep. 29, 1999)

Paper No. 9
gfr
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB SEPT. 29,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Nature’s Finest Foods, LLC
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Serial No. 75/341,506
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Charles E. Temko of Temko & Temko for Nature’s Finest
Foods, LLC.
Darlene D. Bullock, Trademark Examining Attorney, Law
Office 101 (Jerry Price, Managing Attorney).
_______
Before Cissel, Walters and Rogers,
Administrative Trademark Judges.
Opinion by Rogers, Administrative Trademark Judge:
Applicant seeks registration of the mark shown below
for “a frozen sherbet made from evaporated milk”
(identification as amended).
Ser. No. 75/341,506
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The Examining Attorney made final a refusal of
registration based on applicant’s failure to comply with
the requirement that it enter a disclaimer of the phrase
ORIGINAL CREME ICE, see Section 6 of the Trademark Act, 15
USC §1056, on the ground that this phrase is merely
descriptive of the identified goods. Applicant submitted a
disclaimer of ORIGINAL and ICE but denies that CREME is
descriptive and contests the requirement for a disclaimer
of the phrase as a whole.
Applicant has appealed. Both applicant and the
Examining Attorney filed briefs, but an oral hearing was
not requested.
In its response to the initial refusal, applicant
asserts that its product does not contain cream, but admits
its consistency resembles that of ice cream. In its appeal
brief, applicant states that its product is made with
evaporated milk and contrasts its product with “the usual
variety of milk based ices and sherbets which are made with
ordinary milk or powdered milk.” Applicant contends that
CREME “suggests that the product has qualities associated
with ice cream, rather than sherbert [sic],” but that this
“does not directly describe a quality of the product.”
We take judicial notice of dictionary definitions
evidencing (1) that sherbet may be made with milk, (2) that
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evaporated milk is thicker even than whole milk, (3) that
cream is the fatty component of unhomogenized milk, and (4)
that “creme” is the equivalent of “cream”:
“sherbet (shûr’bit), n. 1. a frozen fruit-
flavored mixture, similar to an ice, but with
milk, egg white, or gelatin added.” The Random
House College Dictionary 1213 (Rev. ed. 1982).
“evap’orated milk’, thick, unsweetened milk made
by removing some of the water from whole milk.”
The Random House College Dictionary 457 (Rev. ed.
1982).
“creamNU Pn. 1. the part of whole milk that
is rich in butterfat.” The Random House College
Dictionary 313 (Rev. ed. 1982).
“creme NUHP NU P NU P Fr. kRem), n. … 1.
cream.” The Random House College Dictionary 315
(Rev. ed. 1982).
The Examining Attorney, in her appeal brief, argues
that the ingredients in sherbet “normally make it a frozen
confection that is lighter than ice cream”, and that
applicant’s use of evaporated milk rather than milk “should
give their sherbet a creamier and richer texture” because
of increased milk fat.1 The Examining Attorney also notes
that applicant’s product need not contain cream for that
term to be found descriptive; it is enough that the word
describes the creamy texture of the product.

1 While the suppositions by the Examining Attorney are
unsupported by evidence, applicant did not file a reply brief
Ser. No. 75/341,506
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It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning
of Section 2(e)(1) of the Trademark Act, if it immediately
describes an ingredient, quality, characteristic or feature
thereof or if it directly conveys information regarding the
nature, function, purpose or use of the goods or services.
See, In re Abcor Development Corp., 588 F.2d 811, 200 USPQ
215, 217-218 (CCPA 1978); also, In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009 (Fed. Cir. 1987). It is not necessary
that a term describe all of the properties or functions of
the goods or services in order for it to be considered
merely descriptive; rather, it is sufficient if the term
describes a significant attribute or idea about them.
Moreover, 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
those 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. See, In re
Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Consequently, “[w]hether consumers could guess what the

and, thus, did not contest these claims. In fact, applicant
admits that its product has qualities associated with ice cream.
Ser. No. 75/341,506
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product is from consideration of the mark alone is not the
test.” In re American Greetings Corp., 226 USPQ 365, 366
(TTAB 1985).
We assess whether CREME is descriptive of applicant’s
product from the point of view of the average or ordinary
consumer in the class of prospective purchasers for
applicant’s product. In re Omaha National Corporation, 2
USPQ2d 1859, 1861 (Fed. Cir. 1987). Since there are no
restrictions on the prospective channels of trade or
classes of consumers for applicant’s product, we assume the
average or ordinary consumer includes any retail purchaser
of ice cream, sherbet, sorbet or other frozen confections.
In the present case, it is our view that, when “creme”
is used in conjunction with a frozen sherbet made from
evaporated milk, the term immediately describes, without
the need for conjecture or speculation, a characteristic of
such goods. Neither exercise of imagination nor gathering
of further information is necessary for prospective
purchasers to readily perceive the significance of the
term. See, In re Quik-Print Copy Shops, Inc., 205 USPQ
505, 507 (CCPA 1980)(term descriptive if immediately
conveys knowledge of qualities or characteristics of goods;
but suggestive if imagination, thought or perception needed
to reach conclusion as to nature of goods).
Ser. No. 75/341,506
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In addition, in the context of applicant’s mark, we
view ORIGINAL CREME ICE as a unitary phrase. It is well-
established that the allowance of separate disclaimers for
the several parts of a unitary expression is improper.
See, In re Medical Disposables Co., 25 USPQ2d 1801, 1805
(TTAB 1992).
Decision:
The refusal of registration, in the absence of a
disclaimer of the unitary phrase ORIGINAL CREME ICE, is
affirmed.
In accordance with Trademark Rule 2.142(g), this
decision will be set aside and the application will be
returned to the Examining Attorney to prepare the
application for publication for opposition if applicant,
within 30 days of the date of this decision, submits an
appropriate disclaimer of ORIGINAL CREME ICE.
R. F. Cissel
C. E. Walters
G. F. Rogers
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
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