Vital Pharmaceuticals, Inc.

Trademark Trial and Appeal BoardMay 6, 2009

No. 77134281 (T.T.A.B. May. 6, 2009)

Mailed: May 6, 2009 PTH UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Vital Pharmaceuticals, Inc. ________ Serial Nos. 77134281 and 77134306 _______ Erica W. Stump, General Counsel for Vital Pharmaceuticals, Inc. Kevon L. Chisolm, Trademark Examining Attorney, Law Office 103 (Michael Hamilton, Managing Attorney). _______ Before Seeherman, Hairston and Cataldo, Administrative Trademark Judges. Opinion by Hairston, Administrative Trademark Judge: Applications were filed by Vital Pharmaceuticals, Inc. to register the mark PROTEIN NUGGETZ (in standard character form) for “nutritional supplements” in International Class 5 and “nutritionally fortified snacks” in International Class 5.1 1 Serial Nos. 77134281 and 77134306, respectively, both filed March 19, 2007, and based on an allegation of a bona fide intention to use the mark in commerce THIS OPINION IS NOT A PRECEDENT OF THE TTAB Ser Nos. 77134281 and 77134306 2 The trademark examining attorney refused registration in each application under Section 2(e)(1) of the Trademark Act on the ground that applicant’s mark, if used in connection with applicant’s goods, would be merely descriptive of them. When the refusals were made final, applicant appealed. Applicant and the examining attorney have filed briefs. Because the appeals involve common issues of law and fact, they were consolidated on September 23, 2008.2 Accordingly, we will decide the appeals in a single opinion. Before turning to the merits of the refusals, we must discuss an evidentiary matter. Attached to applicant’s brief in each case is a copy of a third-party registration. Because applicant did not make this registration of record prior to the appeal, the examining attorney has objected to the late introduction of the registration in applicant’s briefs. Trademark Rule 2.142(d) provides that the record in an application should be complete prior to the filing of an appeal. Additional evidence filed after appeal normally will be given no consideration. Thus, the third-party registration does not form part of the record and 2 We also note that the record is the same in each case. Ser Nos. 77134281 and 77134306 3 has not been considered in reaching our decision. We should add that even if we had considered this registration, it would not be persuasive of a different result. While uniform treatment under the Trademark Act is an administrative goal, our task in this appeal is to determine, based on the record before us, whether the involved mark is merely descriptive. See In re Nett Designs, Inc., 236 F.2d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even if some prior registrations had some characteristics similar to [applicant’s] application, the PTO’s allowance of such prior registrations does not bind the Board or this court.”] Applicant contends that its mark is only suggestive and that purchasers “[are] required to make a mental leap to draw the connection between PROTEIN NUGGETZ and nutritional supplements and snacks in that ‘nuggetz’ is misspelled. The consumer does not instantly know that ‘nuggetz’ is referring to ‘nuggets.’” (Brief, pp. 5-6) Further, according to applicant, “PROTEIN NUGGETZ is a whimsical term and meant to connote the idea that [applicant’s] PROTEIN NUGGETZ are small sized, (1.25 ounces) tidbit ‘nugget’ portions of [applicant’s] full size 94 ounces) ZERO IMPACT ‘meal replacement’ bar which contains protein.” (Brief, p. 6) Ser Nos. 77134281 and 77134306 4 The examining attorney, on the other hand, contends that the individual terms “PROTEIN” and “NUGGETZ” are merely descriptive of applicant’s identified goods, and that the combined term PROTEIN NUGGETZ is equally descriptive. According to the examining attorney, the term “PROTEIN” describes an ingredient in applicant’s goods and the term “NUGGETZ,” which is a mere misspelling of the word “nuggets,” describes a characteristic of such goods. The examining attorney maintains that the combined term PROTEIN NUGGETZ immediately conveys that applicant’s goods are small protein supplements and snacks. In support of the refusal, the examining attorney submitted dictionary definitions of the terms “protein” and “nuggets,” excerpts of web pages retrieved from the Internet, and third-party registrations. A term is deemed to be merely descriptive of goods or services, within the meaning of Trademark Act 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. See, e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and 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 Ser Nos. 77134281 and 77134306 5 goods or services in order to be considered merely descriptive; it is enough that the term describes one significant attribute, function or property of the goods or services. See In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and 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 or is intended to be 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 or intended use. That a term may have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled that “[t]he question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods and services are will understand the mark to convey information about them.” In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002). When two or more descriptive terms are combined, the determination of whether the composite mark also has descriptive significance turns on the question of whether Ser Nos. 77134281 and 77134306 6 the combination of terms evokes a new and unique commercial impression. If each component retains its descriptive significance in relation to the goods or services, the combination results in a composite that is itself descriptive. See, e.g., In re Tower Tech, Inc., supra [SMARTTOWER merely descriptive of commercial and industrial cooling towers]; In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001) [AGENTBEANS merely descriptive of computer programs for use in development and deployment of application programs]; In re Putnam Publishing Co., 39 USPQ2d 2021 (TTAB 1996) [FOOD & BEVERAGE ONLINE merely descriptive of news information services for the food processing industry]; and In re Copytele Inc., 31 USPQ2d 1540 (TTAB 1994) [SCREEN FAX PHONE merely descriptive of facsimile terminals employing electrophoretic displays]. The words “protein” and “nuggets” are defined in The American Heritage Dictionary of the English Language (4th ed. 2000) as follows: protein: any of a group of complex organic macromolecules that contain carbon, hydrogen, oxygen, nitrogen, and usually sulfur and are composed of one or more chains of amino acids. Proteins are fundamental components of all living cells and include many substances, such as enzymes, hormones, and antibodies, that are necessary for the proper functioning of an organism. They are essential in the diet of animals for the growth and repair of tissue and Ser Nos. 77134281 and 77134306 7 can be obtained from foods such as meat, fish, eggs, milk, and legumes. nuggets: a small compact portion or unit: nuggets of information. Applicant concedes that its nutritional supplements and nutritionally fortified snacks will contain protein. (Brief, p. 8) Thus, the term “protein” has descriptive significance as applied to applicant’s goods. Insofar as the term “nuggets” is concerned, we find that this term also is descriptive of applicant’s goods in that it describes their size. We note that applicant acknowledges that its nutritional supplements and nutritionally fortified snacks will be small. We also find that these individual terms do not somehow lose this descriptiveness in the combination “Protein Nuggets.” The combination does not have a unique, nondescriptive or incongruous meaning. Rather, each component of the term “Protein Nuggets” retains its descriptive significance when used in the combination, and the combination as a whole is also merely descriptive of applicant’s goods. Specifically, the term “Protein Nuggets” immediately conveys that applicant’s goods are small or bite-size nutritional supplements and nutritionally fortified snacks containing protein. In this regard, we note that the examining attorney submitted two examples of descriptive Ser Nos. 77134281 and 77134306 8 use of the term “protein nuggets” in excerpts from web pages: (1) “Zone Perfect All Natural Nutrition Bar” which contains, inter alia, “Isolated Soy Protein (Soy Protein Nuggets)” and (2) “Sprout Café” which lists “Protein Nuggets” among its menu items. In addition, the examining attorney submitted the following third-party registrations to demonstrate that the USPTO has considered terms which combine a descriptive word and NUGGETS to be descriptive: Registration No. 2021588 for the mark GOLDEN CORN NUGGETS (CORN NUGGETS disclaimed) for breakfast cereal made from corn; Registration No. 1996288 which issued on the Supplemental Register for the mark MINI NUGGETS for medicated swine feed; Registration No. 2079941 for the mark GOLDSTRIKE COOKIE NUGGETS (COOKIE NUGGETS disclaimed) for cookies; Registration No. 2293799 which issued on the Supplemental Register for the mark CRUNCHY NUGGETS for breakfast cereals; Registration No. 2572328 which issued on the Supplemental Register for the mark SOY NUGGETS (SOY disclaimed) for toasted snack foods; and Registration No. 2733550 which issued on the Supplemental Register for the mark COCOA NUGGETS (COCOA disclaimed) for breakfast cereal. The question, then, is whether applicant’s substitution of the letter “z” for the letter “s” in the term “nuggets” transforms PROTEIN NUGGETZ into an Ser Nos. 77134281 and 77134306 9 inherently distinctive mark. We find that it does not. Prospective purchasers of applicant’s goods would recognize “nuggetz” as simply a slight misspelling of the term “nuggets.” The Supreme Court has held that: The word, therefore, is descriptive, not indicative of the origin or ownership of the goods; and being of that quality, we cannot admit that it loses such quality and becomes arbitrary by being misspelled. Bad orthography has not yet become so rare or so easily detected as to make a word the arbitrary sign of something else than its conventional meaning… . Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 USPQ 446, 455 (1911). Other cases have recognized that a slight misspelling does not change a merely descriptive term into a suggestive term. See Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315 (1938) [NU-ENAMEL; NU held equivalent of “new”]; In re Quik-Print Copy Shops, 616 F.2d 523, 205 USPQ 505, 507 n.9 (CCPA 1980) [QUIK-PRINT held descriptive; “There is no legally significant difference here between ‘quik’ and ‘quick’”); Fleetwood Co. v. Mende, 298 F.2d 797, 132 USPQ 458, 460 (CCPA 1962) [“TINTZ [is] a phonetic spelling of ‘tints’”]; and Hi-Shear Corp. v. National Automotive Parts Association, 152 USPQ 341, 343 (TTAB 1966) [HI-TORQUE “is the phonetic equivalent of the words ‘HIGH- TORQUE’”). Ser Nos. 77134281 and 77134306 10 In this case, applicant has merely substituted the letter “z” for the letter “s” in the word “nuggets.” The letter “z” could easily be pronounced the same as the letter “s” in “nuggets.” See King-Kup Candies, Inc. v. King Candy Co., 288 F.2d 944, 129 USPQ 272, 273 (CCPA 1961) [“It is clear, therefore, that the syllable ‘Kup,’ which is the full equivalent of the word ‘cup’ 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]; and Norsan Products Inc. v. R.F. Schuele Corp., 286 F.Supp. 12, 159 USPQ 689 (E.D. Wis. 1968) [KUF’N KOLAR equivalent of “cuff and collar”]. When presented with the term NUGGETZ on nutritional supplements and nutritionally fortified snacks, purchasers would recognize the term as a simple misspelling of the term “nuggets” which is commonly used to describe small or bite-size pieces of food. In view of the foregoing, we find that applicant’s mark PROTEIN NUGGETZ is merely descriptive of the nature of applicant’s goods, that is, that the goods are small or bite-size nutritional supplements and nutritionally fortified snacks containing protein. Ser Nos. 77134281 and 77134306 11 Decision: The refusal to register under Section 2(e)(1) is affirmed in application Serial Nos. 77134281 and 77134306.