PH Pure Health

Trademark Trial and Appeal Board

Mar 30, 1999

No. 75056874 (T.T.A.B. Mar. 30, 1999)

Paper No. 12
GDH/gdh
THIS DISPOSITION IS NOT CITABLE AS PRECEDENT
OF THE TTAB MARCH 30,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re PH Pure Health
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Serial No. 75/056,874
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Faye L. Mattson and Steven P. Berreth of Christensen O’Connor
Johnson & Kindness for PH Pure Health.
Alec Powers, Trademark Examining Attorney, Law Office 105 (Thomas
G. Howell, Managing Attorney).
_______
Before Seeherman, Hohein and Chapman, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
PH Pure Health has filed an application to register the
term "SUPER ALKALINE" as a trademark for "chemicals, namely,
alkaline and acidic water for use in food processing and
preserving, industrial waste and agriculture" in International
Class 1; "alkaline and acidic water for use as a topical
disinfectant" in International Class 5; and "water and
electrolysis distilling units for producing alkaline or acidic
Ser. No. 75/056,874
2
water for use in agriculture, food processing, industrial waste
treatment, and topical disinfectants" in International Class 11.1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the basis
that, when used in connection with applicant's goods, the term
"SUPER ALKALINE" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register, but only to the extent that the merely descriptive term
"ALKALINE" must be disclaimed apart from the mark "SUPER
ALKALINE" as a whole.
The Examining Attorney, in support of his position,
relies upon the following definitions from Webster's II New
Riverside University Dictionary (1994):
"super," which is defined in pertinent
part as "3. An article or product of superior
size or quality"; and
"alkaline," which is listed in relevant
part as "1. Of, relating to, or containing an
alkali."2
In view thereof, the Examining Attorney maintains that
applicant's "SUPER ALKALINE" mark "merely describes a feature,
characteristic and/or quality of the goods, namely, that the
goods contain alkaline in an unusually high proportion or of a

1 Ser. No. 75/056,874, filed on February 12, 1996, which alleges a bona
fide intention to use such term in commerce.
2 The same dictionary, we note, defines "alkali" as "1. Chem A
carbonate or hydroxide of an alkali metal, whose aqueous solution is
bitter, slippery, caustic and typically basic in reactions. 2. Any of
various soluble mineral salts in natural water and arid soils. 3. An
alkali metal."
Ser. No. 75/056,874
3
superior quality." Stated otherwise, the Examining Attorney
views such mark as nothing more than the combination of the
laudatory term "SUPER" with the name of the principal ingredient
in or product produced by applicant’s various goods, namely,
"ALKALINE".
Applicant, on the other hand, argues that the mark
"SUPER ALKALINE," when considered in its entirety, "does not
automatically identify to the relevant purchasing public a
feature of the goods." In particular, applicant refers to its
initial response to the refusal to register, in which it stated
that its alkaline and acidic water, and equipment for producing
such products, "are not goods that are usually offered in various
grades or qualities, nor are they goods that come in different
sizes". The term "SUPER ALKALINE," applicant maintains, is thus
not merely descriptive of its goods.
As applicant also notes, there are a number of cases
which involve marks containing the word "super," including: In
re Carter-Wallace, Inc., 222 USPQ 729, 730 (TTAB 1984) ["SUPER
GEL" held merely descriptive of a "lathering gel for shaving"
because term "would be perceived as nothing more than the name of
the goods modified by a laudatory adjective indicating the
superior quality of applicant’s shaving gel"]; In re Samuel Moore
& Co., 195 USPQ 237, 241 (TTAB 1977) ["SUPERHOSE!" found merely
descriptive of "hydraulic hose made of synthetic resinous
materials" since term "would be understood as the name of the
goods modified by a laudatory adjective which would be taken to
mean that applicant’s hose is of superior quality or strength"];
Ser. No. 75/056,874
4
In re Ralston Purina Co., 191 USPQ 237, 238 (TTAB 1976) ["SUPER"
in "RALSTON SUPER SLUSH" ("SLUSH" disclaimed) held suggestive of
a "concentrate used to make a slush type soft drink" since the
term "is used as mere puffery ... to connote a vague desirable
characteristic or quality"]; Quaker State Oil Refining Corp. v.
Quaker Oil Corp., 453 F.2d 1296, 172 USPQ 361, 363 (CCPA 1972)
["SUPER BLEND" held merely descriptive of "motor oils" as
designating "an allegedly superior blend of oils"]; and In re
Occidental Petroleum Corp., 167 USPQ 128 (TTAB 1970) ["SUPER
IRON" found suggestive of "soil supplements" since "it takes some
roundabout reasoning to make a determination ... that the product
contains a larger amount of iron than most soil supplements or
that this iron ... ingredient ... is superior in quality to iron
found in other soil supplements"]. According to applicant:
Under these cases, if the word "Super" is not
combined with the name of the goods, or if
the goods do not come in various grades or
sizes, then the mark is suggestive and not
merely descriptive. In Appellant’s situation,
the word "Super" is not combined with the
name of the goods and the goods do not come
in various grades or sizes. Appellant’s
mark, therefore, under the "Super" line of
cases is not merely descriptive. ....
Applicant further contends that the definition of the
word "alkaline" provided by the Examining Attorney "in and of
itself requires the consumer to go through a multi-stage
reasoning process even before it is associated with Appellant’s
goods." Specifically, applicant insists that a purchaser must
first know what an alkali is and that:
Once the consumer becomes educated as to what
an alkali is, the second step is to determine
what the relationship between alkaline and
Ser. No. 75/056,874
5
the alkali is since the ... Examiner’s
definition offers three choices: "of,"
"relating to," or "containing." It is only
after making these determinations that the
consumer can evaluate the association between
the mark and the goods. ....
In addition, applicant points to the absence of any evidence in
the record that competitors in the field either use the
terminology "SUPER ALKALINE" or would otherwise need such term in
order to identify similar products adequately.
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, 217-18 (CCPA
1978). 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 to be merely descriptive thereof; 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 product [or service] is from consideration of the mark alone
Ser. No. 75/056,874
6
is not the test." In re American Greetings Corp., 226 USPQ 365,
366 (TTAB 1985).
However, a mark is suggestive if, when the goods or
services are encountered under the mark, a multistage reasoning
process, or the utilization of imagination, thought or
perception, is required in order to determine what attributes of
the goods or services the mark indicates. See, e.g., In re Abcor
Development Corp., supra at 218, and In re Mayer-Beaton Corp.,
223 USPQ 1347, 1349 (TTAB 1984). As has often been stated, there
is a thin line of demarcation between a suggestive mark and a
merely descriptive one, with the determination of which category
a mark falls into frequently being a difficult matter involving a
good measure of subjective judgment. See, e.g., In re Atavio, 25
USPQ2d 1361 (TTAB 1992) and In re TMS Corp. of the Americas, 200
USPQ 57, 58 (TTAB 1978). The distinction, furthermore, is often
made on an intuitive basis rather than as a result of precisely
logical analysis susceptible of articulation. See In re George
Weston Ltd., 228 USPQ 57, 58 (TTAB 1985).
Strictly speaking, none of applicant’s goods is itself
an alkali and, thus, the term "alkaline" does not name either
applicant’s water or its distillation units for producing such
water. However, contrary to applicant’s contentions, the word
"alkaline" in applicant’s "SUPER ALKALINE" mark does immediately
describe, without conjecture or speculation, a significant
ingredient, quality, characteristic or feature of its various
alkaline water products as well as directly conveying information
regarding the nature, function, purpose or use of its distilling
Ser. No. 75/056,874
7
units for producing alkaline water. Purchasers and potential
customers for such goods would plainly know that alkaline
products, including alkaline water and equipment for producing
such, respectively contain alkali or relate thereto and, hence,
would not need to become "educated as to what an alkali is".
Instead, there simply is no question that the term "alkaline"
merely describes applicant’s goods and that any other producer of
alkaline water and distilling units for producing alkaline water
would need to utilize such word to describe their goods. Water
which contains alkali, as well as distilling units which produce
such water, are plainly and aptly described as alkaline products.
Nevertheless, as to the word "super," there is nothing
in the record which contradicts or otherwise calls into question
applicant’s statement that its alkaline and acidic water, and
equipment for producing the same, "are not goods that are usually
offered in various grades or qualities, nor are they goods that
come in different sizes". We are constrained, therefore, to
concur with applicant that customers for its products would not
immediately or directly regard the term "SUPER ALKALINE" as
describing any significant quality or other attribute of
applicant’s goods, such as the concentration of its alkaline
water or the high purity thereof. Instead, purchasers, users
and/or prospective buyers of applicant’s goods would have to
pause and reflect on the significance of the term "SUPER
ALKALINE" in order to understand its use as possibly connoting
some vague desirable aspect of its products. See, e.g., In re
Ralston Purina Co., supra, and In re Occidental Petroleum Corp.,
Ser. No. 75/056,874
8
supra. Nothing, in short, indicates that applicant’s products
are superior in any sense; rather, the term "SUPER ALKALINE," on
this record, seems to be just puffery which would leave customers
for the goods to speculate as to what particular quality or
function the term refers.
As applicant argues, this is not a case in which the
laudatory term "super" has been combined with only a generic name
for its goods. Furthermore, although not required in order to
preclude registration, there is no showing of any third-party use
of the terminology "super alkaline" to describe goods of the type
to be offered by applicant under the mark "SUPER ALKALINE".
There is thus no reason to conclude that the word "super," when
used in applicant’s mark, is simply a laudatory term without any
source-indicating significance. Cf. In re Consolidated Cigar
Co., 35 USPQ2d 1290, 1294 (TTAB 1995) ["SUPER BUY" found to be
widely used as laudatory expression indicating bargains of
exceptional value and therefore merely descriptive of "cigars,
pipe tobacco, chewing tobacco and snuff"]. Finally, to the
extent that there may still remain any doubt as to whether
applicant’s mark is merely descriptive or suggestive of its
goods, such doubt is resolved, in accordance with the Board’s
practice, in favor of applicant. See, e.g., In re Morton-Norwich
Products, Inc., 209 USPQ 791 (TTAB 1981) and In re Gourmet
Bakers, Inc., 173 USPQ 565 (TTAB 1972).
Consequently, while we find that the word "ALKALINE"
clearly is merely descriptive of applicant’s goods and must be
disclaimed in order for the mark "SUPER ALKALINE" to be
Ser. No. 75/056,874
9
registrable, we hold that such mark, when considered as a whole,
is not on this record merely descriptive of applicant’s
products.3
Decision: The refusal under Section 2(e)(1) is
affirmed, but only to the extent that the merely descriptive term
"ALKALINE" must be disclaimed. In accordance with Trademark Rule
2.142(g), this decision will be set aside and applicant’s "SUPER
ALKALINE" mark will be published for opposition if applicant, no
later than thirty days from the mailing date hereof, submits an
appropriate disclaimer of the term "ALKALINE".4
E. J. Seeherman
G. D. Hohein
B. A. Chapman
Administrative Trademark Judges,
Trademark Trial and Appeal Board

3 It should, of course, be kept in mind that this appeal involves an
intent-to-use application and that we have reached our conclusion
based upon a very sparse record. Once applicant submits a statement
of use and accompanying specimens of actual use, the Examining
Attorney, in the examination thereof, may revisit the issue of mere
descriptiveness. Imposition of such a refusal, based upon information
disclosed by the specimens of use (which, of course, are not presently
available), is not precluded by our decision at this juncture.
4 See In re Interco Inc., 29 USPQ2d 2037, 2039 (TTAB 1993). For the
proper format for a disclaimer, attention is directed to TMEP
§§1213.09(a)(i) and 1213.09(b).