No. 87192426 (T.T.A.B. Aug. 23, 2018)

BPI Sports

Trademark Trial and Appeal BoardAug 23, 2018

No. 87192426 (T.T.A.B. Aug. 23, 2018)

This Opinion is not a Precedent of the TTAB Mailed: August 23, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re BPI Sports _____ Serial No. 87192426 Serial No. 87192433 Serial No. 87192440 _____ Adam C. Underwood and John C. Carey of Carey Rodriguez Milian Gonya LLP, for BPI Sports. Ronald McMorrow, Trademark Examining Attorney, Law Office 118, Michael W. Baird, Managing Attorney. _____ Before Cataldo, Adlin and Goodman, Administrative Trademark Judges. Opinion by Goodman, Administrative Trademark Judge: On October 4, 2016, BPI Sports (“Applicant”) filed three applications seeking registration on the Principal Register of: KETO WHEY for “Ketogenic dietary and nutritional supplement containing whey protein” in International Class 5 (Serial No. 87192426); KETO BCAAS for “Ketogenic dietary and nutritional supplements containing branched chain amino acids” in International Class 5 (Serial No. 87192433); and Serial Nos. 87192426, 87192433, and 87192440 - 2 - KETO GUMMIES for “Dietary and nutritional supplements not containing ketones” in International Class 5 (Serial no. 87192440).1 All three of the applied-for marks are in standard characters. Each of the applications was filed based on Applicant’s allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). The Trademark Examining Attorney refused registration of each mark on the ground that it is merely descriptive of the identified goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). When the refusals were made final, Applicant appealed and requested reconsideration in each application. After the Examining Attorney denied the requests for reconsideration, the appeals resumed.2 We affirm the refusals to register. I. Merely Descriptive Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), prohibits the registration of a mark which, when used on or in connection with the applicant’s goods, is merely descriptive of them. “A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used.” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960, 82 1 These appeals involve common questions of law and fact and the records are substantially similar in important respects. Accordingly, we consolidate and decide these appeals in this single decision. See, In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009); TBMP § 1214 (2018). 2 Page references herein to the application record refer to the USPTO’s Trademark Status & Document Retrieval (TSDR) system database. References to the briefs on appeal refer to the Board’s TTABVUE docket system. Unless otherwise noted, where the record and arguments overlap, we refer to the record and briefs in Serial No. 87192433 (KETO BCAAS). Serial Nos. 87192426, 87192433, and 87192440 - 3 - USPQ2d 1828, 1831 (Fed. Cir. 2007)); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). Descriptiveness is analyzed in relation to an applicant’s identified goods, “the context in which the [term] is being used, and the possible significance that the term would have to the average purchaser of the goods 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 Bayer, 82 USPQ2d at 1831. Descriptiveness is not considered in the abstract. Id. The question is whether someone who knows what the goods are will understand the term to convey information about them. DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012). When two or more merely descriptive terms are combined, the determination of whether the composite mark also has a merely descriptive significance turns on whether the combination of terms evokes a new and unique commercial impression. If each component retains its merely descriptive significance in relation to the goods, the combination results in a composite that is itself merely descriptive. See, e.g., In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372, 1374 (Fed. Cir. 2004) (PATENTS.COM merely descriptive of computer software for managing a database of records that could include patents and for tracking the status of the records by means of the Internet). A. Applicant’s Arguments Applicant argues in connection with all of the applications that the term “keto” is suggestive and ambiguous because it has multiple meanings. Applicant also argues Serial Nos. 87192426, 87192433, and 87192440 - 4 - that to the extent that “keto” is an abbreviation for ketone, it is obscure and unknown and will require multi-step reasoning for the average consumer to understand that “keto” means ketone. Applicant contends that “keto” “does not point out specifically and in a merely descriptive way the fact that some ketogenic elements of the goods help in reducing fat.”3 As to the other terms in each mark, Applicant argues that both “whey” and “BCAAS” have other meanings unrelated to dietary supplements and that the term “gummy” or “gummi” is commonly associated with candy, which has negative connotations from the perspective of dietary health, and is contradictory to dietary and nutritional supplements’ purpose. Applicant submits that when KETO is combined with any of these terms–“whey,” or “BCAAS,” or “gummies,”–multi-stage reasoning is required and the combined terms’ meaning is “too vague and nebulous” to describe a feature of the goods. Contrary to Applicant’s arguments, we find that the asserted marks immediately inform prospective purchasers of the nature of Applicant’s goods without any multi- stage reasoning process. Applicant’s arguments as to the multiple meanings for each of these terms suggests that the marks should be viewed in the abstract, but, as noted, the question of whether a term is merely descriptive must be determined in relation 39 TTABVUE 7. In the first office action for each application, the Examining Attorney found the term “keto” to be merely descriptive in connection with Applicant’s goods as either describing supplements that contain ketones and/or promote the development of ketones in the bloodstream and/or supplements that are intended to be taken as part of a ketogenic diet. January 12, 2017 Office Action p. 1. After the Applicant provided information relating to the goods, the Examining Attorney’s position, as reflected in his briefs, is that “keto” is merely descriptive of ketogenic supplements. 11 TTABVUE 5. Serial Nos. 87192426, 87192433, and 87192440 - 5 - to the identified goods. Thus, the fact that the individual words in Applicant’s marks may have other meanings in other contexts does not affect our decision. As to Applicant’s arguments that the quantity of evidence submitted by the Examining Attorney is insufficient, no particular quantity of evidence is necessary for an examining attorney to carry his/her burden of proof. The record, discussed below, sufficiently establishes that the relevant public is likely to view Applicant’s proposed marks as merely descriptive of features or characteristics of the dietary and nutritional supplements. B. Record Evidence The records for the three applications are not identical, although they overlap substantially. Evidence common to all three applications includes: Definitions of KETO Keto – of or derived from a ketone (dictionary.infoplease.com)4 Ketone: a family of chemical compounds (Wikipedia.com)5 Information about Ketosis, Ketones and the Ketogenic diet: Overview of Ketosis. Simply put, our body, organs, muscles and brain can use either glucose or ketones for fuel. It is the function of the liver and pancreas (primarily) to regulate that fuel supply and they show a strong bias toward sticking with glucose. … Ketones have to be deliberately synthesized by the liver … For the liver to be convinced that 4 Random House Unabridged Dictionary (1997). January 12, 2017 Office Action p. 18. We also take judicial notice of the term ketogenesis: “n. The formation of ketone bodies, as in diabetes mellitus”; ketogenic is the adjective form. Dictionary.com. The American Heritage® Stedman’s Medical Dictionary (2002, 2001, 1995). See e.g., Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010) (the Board may take judicial notice of dictionary definitions in online reference works that have a printed format). 5 January 24, 2018 Request for Reconsideration p.7. Serial Nos. 87192426, 87192433, and 87192440 - 6 - ketones are the order of the day, several conditions must be met. (corpina.com)6 Ketones SHOULD be produced in small amounts from blood glucose levels of about 60mg/dl. We consider ourselves in ketosis when there are greater concentrations of ketones than glucose in the blood. (corpina.com)7 (corpina.com)8 What is a Ketogenic Diet? Ketogenic diets are fairly simple in principle. Usually, when you are following one you aim to eat 60-70% of your daily calories from fat, focusing on eating healthy fats and not unhealthy trans fats. Furthermore, 20-30% of your calories should come from protein whilst no more than 50 g of carbs should be consumed per day. Eating this way will place your body into a state known as ketosis. During the metabolic state, there are higher levels of ketones in your blood stream. When this is the case, lipid energy metabolism is intact, meaning that your body will begin to break down stored fat in order to fuel your everyday activities rather than using carbohydrates from your diet. (myprotein.com).9 6 July 24, 2017 Office Action pp. 2-3. 7 Id. 8 Id. 9 January 12, 2017 Office Action pp. 20-21. Serial Nos. 87192426, 87192433, and 87192440 - 7 - Uses of KETO Top 7 Keto Supplements to Help you Reach Ketosis … The 7 Best Keto Supplements for the Ketogenic Diet (corpina.com)10 The Keto-genic Diet|5 Keto Friendly Supplements (myprotein.com)11 Best Keto Supplements to Take for Weight Loss (perfectketo.com)12 2017’s 10 Best Keto Supplements. … Designed to help optimize the ketogenic diet, Keto supplements can help you manage your weight, improve your brain function, shred excess fat from your body, as well as stabilize consistent energy outputs. To achieve the requirements of a low-carb diet, Keto supplements may just be the exact aid you need to make the push towards a greater change. Become fully committed to your diet with the help that Keto supplements can provide. (esupplements.com)13 2018’s 10 Best Keto Supplements … The low carb/high fat diet, also known as the ketogenic diet helps individuals boost energy, support weight loss and control blood sugar levels. … Designed to help maximize keto levels, Keto supplements can help you manage your weight …”14 (esupplements.com) The evidence reflects that “keto supplements” for ketogenic diets refers not only to supplements that contain exogenous ketones (Beta-hydroxybutyrate)15 but also refers to supplements such as omega 3, coconut oil, whey protein and BCAA that maximize your intake of certain macro/micronutrients while on the ketogenic diet or 10 January 12, 2017 Office Action p. 2. 11 Id. at 20. 12 February 1, 2018 Denial of Reconsideration p. 24. 13 January 12, 2017 Office Action p. 3. 14 February 1, 2018 Denial of Reconsideration p. 26. 15 “Exogenous ketones are externally-made ketones you consume, meaning they aren’t created inside the body. … There are three ketones created when we’re in ketosis but beta- hydroxybutyrate (BHB) is the form used in exogenous ketones.” (perfectketo.com) February 1, 2018 Denial of Reconsideration p. 25. Serial Nos. 87192426, 87192433, and 87192440 - 8 - supplements such as MCT oil which is a source of healthy fats that helps with ketosis.16 Third party registrations – Keto The Examining Attorney provided 6 third-party registrations17 for nutritional supplements in which the term “keto” is disclaimed.18 Third-party registrations may be used in the manner of dictionary definitions. See In re Sela Prods., LLC, 107 USPQ2d 1580, 1588 (TTAB 2013). Applicant submitted plain copies of 9 registrations in which the word “keto” was not disclaimed, but the Examining Attorney submitted copies from the Office’s database showing that 8 of these 9 registrations were cancelled.19 1. Serial No. 87192426 KETO WHEY Applicant seeks to register KETO WHEY for “Ketogenic dietary and nutritional supplement containing whey protein.” In addition to the evidence discussed supra 16 January 12, 2017 Office Action pp. 21-22; July 24, 2017 Office Action pp. 5-10; February 1, 2018 Denial of Reconsideration pp. 25, 42. 17 January 12, 2017 Office Action pp. 4, 6, 10; July 24, 2017 Office Action p. 19; February 1, 2018 Denial of Reconsideration pp. 55, 59. 18 The Examining Attorney also submitted copies of pending third-party applications with disclaimers of “Keto,” but these have no probative value. The Examining Attorney repeatedly filed duplicative evidence in all applications, for the terms “keto,” “BCAAS,” “whey,” and “gummies,” which was unnecessary. 19 The Examining Attorney states in the February 1, 2018 Denial of Reconsideration, p. 1 that all of Applicant’s submitted third-party registrations are cancelled. Applicant acknowledges cancellation of all of the third-party registrations it submitted. 9 TTABVUE 10. Cancelled registrations are of no probative value. In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261, 1264 (TTAB 2011) (“‘dead’ or cancelled registrations have no probative value at all.”). Serial Nos. 87192426, 87192433, and 87192440 - 9 - demonstrating the meaning of the word “keto,” evidence made of record in connection with the term “whey” includes the following: a. Evidence Definitions Whey: dairy manufacturing by-product (Wikipedia.com)20 Response to Request for Information Applicant’s good will be a form of whey protein taken either before or after a workout to provide a supplement to the bodies [sic] ability to produce ketones in the bloodstream. . . The applicant’s good promotes the development of ketones in the bloodstream. The applicant’s good will contain whey protein. Applicant’s goods can be used to supplement a ketogenic diet …21 (emphasis added) Additional Statements made by Applicant Applicant intends to use the applied for mark, KETO WHEY, for ketogenic dietary and nutritional supplement containing whey protein in Class 5. … Whey protein has been viewed as a source of carbohydrates that can inhibit a ketogenic diet by causing an overflow of carbohydrates and stopping ketosis in the body. ... Therefore, the inherent purposes of KETO and WHEY seperately [sic] contradict eachother [sic]. Applicant’s product intends to resolve that issue by producing a proprietary blend of whey protein that not only eliminating [sic] whey protein’s tendency to stop ketosis, but actually promotes ketosis in the human body.22 (emphasis added) Uses of Whey How to Use Whey Protein on Keto Diets. If you’re currently on a ketogenic diet or looking to start it because of its fast fat-burning qualities … Keto diets are very strict …Most people joining keto diets 20 Serial No. 87192426 (KETO WHEY) January 24, 2018 Request for Reconsideration p. 32. 21 Serial No. 87192426 (KETO WHEY) July 12, 2017 Response to Office Action p. 4. 22 Id. at 3. Serial Nos. 87192426, 87192433, and 87192440 - 10 - come from the bodybuilding community. And a big part of their diet is whey protein shakes. … (Wheyflavor.com)23 Under the category “whey protein” GNC offers “Optimum Nutrition 100% Whey Gold Standard Double Chocolate” which contains “whey protein isolates.” (gnc.com) 24 GNC also offers numerous “whey protein” supplements. (gnc.com)25 Bodybuilding.com offers whey protein of various types (whey protein, whey protein blends, isolates and concentrates) (bodybuilding.com)26 Under the category of “whey protein,” The Vitamin Shoppe offers “whey protein plus triple chocolate (2 pound powder).” (vitaminshoppe.com)27 Myprotein.com lists whey protein as a keto friendly supplement and mentions that whey protein is “the most widely known and most popular” protein supplement, that is bioavailable and “quickly digested.”28 Third party registrations The Examining Attorney provided 17 third-party registrations for nutritional supplements in which the word “whey” is disclaimed.29 23 Id. at 6, 10. 24 Serial No 87192426 (KETO WHEY) January 12, 2017 Office Action p. 4. 25 Serial No 87192426 (KETO WHEY) July 24, 2017 Office Action pp. 38-46. 26 Id. at 47-54. 27 Serial No 87192426 (KETO WHEY) January 12, 2017 Office Action p. 5. 28 Id. at 37. 29 Serial No. 87192426 (KETO WHEY) January 12, 2017 Office Action pp. 10, 13, 16, 18, 26; July 24, 2017 Office Action pp. 55, 59, 62, 64, 67, 69, 72, 85, 88; February 1, 2018 Denial of Reconsideration pp. 81, 83, 35, 87, 90, 93, 96, 102. Some of these referenced registrations were resubmitted multiple times, see n.12. Serial Nos. 87192426, 87192433, and 87192440 - 11 - b. Analysis Based on the evidence of record, we find that the proposed mark KETO WHEY is merely descriptive of Applicant’s goods. “Keto” describes supplements used in connection with the ketogenic diet while “whey” describes whey protein which is used in nutritional and dietary supplements. Applicant’s identification of goods indicates that Applicant’s supplements include whey protein and that the supplements are “ketogenic dietary and nutritional supplements.” Applicant’s response to the information request and additional statements made in its response to office action indicate the goods will contain whey protein and are to be used in connection with a ketogenic diet. The combined term KETO WHEY merely describes a nutritional supplement for use in connection with a ketogenic diet that contains whey protein and will assist in the promotion of ketones while on a ketogenic diet. The combination of the two individual terms does not evoke a new and unique commercial impression apart from their descriptive meaning. The proposed mark is therefore merely descriptive of features of the goods. 2. Serial No. 87192433 KETO BCAAS Applicant seeks to register KETO BCAAS for “Ketogenic dietary and nutritional supplements containing branched chain amino acids.” In addition to the evidence discussed supra demonstrating the meaning of the word “keto,” evidence made of record in connection with the term “BCAA” or “BCAAS” includes the following: Serial Nos. 87192426, 87192433, and 87192440 - 12 - c. Evidence Definitions of BCAAs BCAA is an acronym for “branched chain amino acids or branched chain amino acid” (acronymfinder.com)30 BCAA may refer to “branch chain amino acid” (Wikipedia.com)31 Branched-chain amino acids (BCAA) leucine, isoleucine, and valine; they are incorporated into proteins or catabolized for energy.32 (freedictionary.com)33 Branched-chain amino acids – Abbreviation BCAA. The essential amino acids, leucine, isoleucine, and valine. “Branched-chain” refers to their chemical structure …34 (freedictionary.com) Response to Request for Information35 Applicant’s good will be a form of BCAA powder taken before or after a workout to provide a supplement to the bodies [sic] ability to produce ketones in the bloodstream while maintaining muscle mass[]. . . . The applicant’s good promotes the development of ketones in the bloodstream ….The applicant’s good will contain branch chain amino acids. Applicant’s goods can be used to supplement a ketogenic diet. (emphasis added) Additional Statements made by Applicant36 Applicant’s product intends to resolve that issue [muscle loss caused by a ketogenic diet] by producing a proprietary blend of branched chain 30 Serial No. 87192433 (KETO BCAAS) January 12, 2017 Office Action p. 23. 31 Serial No. 87192433 (KETO BCAAS) January 24, 2018 Request for Reconsideration p. 32. 32 The Examining Attorney has attached the definition of “branched-chain amino acids” to its brief and requested judicial notice. 11 TTABVUE 11-12. Although technically untimely, as well as cumulative, we take judicial notice of the definition. See n.4. 33 Medical Dictionary 2009 (Farlex and Partners, sourced from The American Heritage® Stedman’s Medical Dictionary, Second Edition and Dorland’s Medical Dictionary for Health Care Consumers). 34 Id. 35 Serial No. 87192433 (KETO BCAAS) July 12, 2017 Response to Office Action at 4. 36 Id. at 3. Serial Nos. 87192426, 87192433, and 87192440 - 13 - amino acids that not only eliminate ketosis’ tendency to break down muscle, but actually promotes ketosis in the human body and maintain muscle mass at the same time. (emphasis added) [A]pplicant [sic] goods will be in the form of a BCAA powder … to provide a supplement to the bodies [sic] ability to produce ketones in the bloodstream while maintaining muscle mass[ ]. (emphasis added) Uses of BCAAS BCAAs the Many Benefits of Branched-Chain Amino Acid Supplements. … Despite the numerous positive benefits to BCAA supplementation, there are many skeptics who suggest that BCAAs are overpriced. (bodybuilding.com)37 Optimum Nutrition’s Instantized BCAA 5000 Powder provides a 5000 mg blend of the three Branched Chain Amino Acids (bodybuilding.com)38 Top 10 BCAAS (Branched Chain Amino Acids) (labdoor.com)39 TOP 10 BCAAS SHOP OUR BEST SELLING BCAA SUPPLEMENTS ... BRANCH OUT & BOOST GROWTH. Branched Chain Amino Acids, such as Leucine, Isoleucine and Valine promote protein synthesis, boost lean muscle growth and enhance energy. (Bodybuilding.com)40 In recent years, branched-chain amino acid supplements have come back into vogue in the bodybuilding and fitness community, with good reason. There’s more research that supports the use of BCAAs than most other supplements on the market. … BCAA’s in supplement form are free-form, require no digestion, and are rapidly absorbed in the bloodstream. … Forget other supplements … check out the power of BCAAs. (www. Bodybuilding.com)41 GNC has webpages for BCAA under Protein & Fitness/Muscle Builders. (gnc.com)42 37 Serial No.87192433 (KETO BCAAS) January 12, 2017 Office Action pp. 30, 33. 38 Id. at 48. 39 Id. at. 50. 40 Id. at 26. 41 Serial No. 87192433 (KETO BCAAS) July 12, 2017 Response to Office Action pp. 7, 9. 42 Serial No. 87192433 (KETO BCAAS) February 1, 2018 Denial of Reconsideration pp. 81- 85. Serial Nos. 87192426, 87192433, and 87192440 - 14 - The Vitamin Shoppe has webpages for BCAAs under “Protein and Fitness.” (Vitaminshoppe.com)43 Myprotein.com lists BCAAs as a keto-friendly supplement for use in connection with a ketogenic diet.44 Third-party registrations BCAA The Examining Attorney provided 14 third-party registrations for nutritional supplements in which the term “BCAA” is disclaimed.45 d. Analysis Based on the evidence of record, we find that the proposed mark KETO BCAAS is merely descriptive of Applicant’s goods. “Keto” immediately informs supplement consumers that Applicant’s goods may be used in connection with a ketogenic diet, or foster ketone development, while “BCAAS” is a known and commonly used acronym for branched-chain amino acids, which are commonly offered as a nutritional supplement for muscle growth. Applicant’s identification of goods indicates that Applicant’s supplements include branched-chain amino acids and that the supplements are “ketogenic dietary and nutritional supplements.” Applicant’s response to the information request and additional statements made in Applicant’s response to office action indicate that the supplements will contain BCAAS and can 43 Id. at 86. 44 Serial No. 87192433 (KETO BCAAS) January 12, 2017 Office Action, p. 22. 45 Serial No. 87192433 (KETO BCAAS) January 12, 2017 Office Action pp. 34, 37, 40, 42, 45, July 24, 2017 Office Action pp. 49, 51, 54, 57, 59, 62, 65, 68, 70, 73, 78; February 1, 2018 Denial of Reconsideration, pp. 89, 92, 95, 97, 100, 103, 106, 115. Some of these referenced third-party registrations were submitted multiple times, see n.12. Serial Nos. 87192426, 87192433, and 87192440 - 15 - be used in connection with a ketogenic diet. The combined term KETO BCAAs merely describes a nutritional supplement of BCAAS in powder form that are used in connection with a ketogenic diet to promote ketosis in the body while maintaining muscle mass. The combination of the two individual terms does not evoke a new and unique commercial impression apart from their descriptive meaning. The proposed mark is therefore merely descriptive of features of the goods. 3. Serial No. 87192440 KETO GUMMIES Applicant seeks to register KETO GUMMIES for “Dietary and nutritional supplements not containing ketones.” In addition to the evidence discussed supra demonstrating the meaning of the word “keto,” evidence made of record in connection with the term “gummy,” “gummi” or “gummies” includes the following: a. Evidence Definitions of Gummy or Gummi Applicant provided the dictionary definition and Wikipedia entry. Gummy – adjective 1. Of resembling, or of the consistency of gum 2. Covered with or clogged by gum 3. Exuding gum. (dictionary.com)46 Gummy – adjective consisting of or containing gum covered with gum made of containing, or covered with gum or a sticky or chewy substance47 46 Random House Dictionary 2017. Serial No. 87192440 (KETO GUMMIES) July 12, 2017 Response to Office Action p. 7. 47 Merriam Webster Dictionary, merriam-webster.com. Serial No. 87192440 (KETO GUMMIES) January 24, 2018 Request for Reconsideration p.35. Serial Nos. 87192426, 87192433, and 87192440 - 16 - 1: consisting of or containing gum 2: being viscous or sticky (Merriam webster.com)48 Gummi candy: gummis or jelly candies are a broad category of gelatin-based chewable sweets. Gummi bears are widely popular and are a well-known part of the sweets industry. … the candy and the name ‘gummi’ originated in Germany. (Wikipedia.com)49 Vitamin gummies: there are also several multi-vitamin gummi bears, usually marketed for children …. These form of vitamins give off nutrients and protein for those that do not swallow pills or need various supplements to stay healthy. (Wikipedia.com)50 Response to Request for Information Applicant’s good will be a form of gummy taken either before or after a workout to provide a supplement to the bodies [sic] ability to produce ketones in the bloodstream. … The applicant’s good promotes the development of the ketones in the bloodstream. The applicant’s good will be in a gummy form. Applicant’s goods can be used to supplement a ketogenic diet …”51 (emphasis added) Uses of Gummy or Gummies Under the category “gummy supplements” Walgreens offers “probiotic gummies,” “Fiber Select® gummies,” “multivitamin & mineral dietary supplement gummy bears” “multi-adult gummies multivitamin supplement” “omega 3 dietary supplement fruit gummies” “caltrate calcium & vitamin D3 supplement gummy bites” among others. (walgreens.com)52 48 Id. at 34. 49 Id. at 42. 50 Id. at 44. 51 Serial No. 87192440 (KETO GUMMIES) July 12, 2017 Response to Office Action pp. 4-5. 52 Serial No. 87192440 (KETO GUMMIES) January 12, 2017 Office Action pp. 25-28. Serial Nos. 87192426, 87192433, and 87192440 - 17 - Nature’s Made offers “adult gummies.” (naturemade.com)53 Hydrocut.com offers “Hydroxycut gummies.”54 Hydroxycut Gummies. The No. 1 weight-lost supplement in the nation is now the first diet supplement to come in ingestible form. … But instead of taking a pill, you get to enjoy a tastier-mixed fruit flavored gummy. (shape.com)55 Fiber Choice ® Metabolism + Energy Support Gummies “Great Tasting Fiber in a Convenient Gummy Form” (fiberchoice.com)56 The 5 Best Chewable Vitamins and Supplements for Adults. A multivitamin is one of the best tools you can add to your health and fitness arsenal. … While you may be too old to enjoy Flintstones Gummies vitamins these adult-friendly versions are just as tasty and colorful as their kid counterparts and pack essential nutrients grown- ups need. (shape.com)57 b. Analysis Based on the evidence of record, we find that the proposed mark KETO GUMMIES is merely descriptive of Applicant’s goods. “Keto” describes supplements used in connection with the ketogenic diet which includes supplements other than those containing ketones. “Gummy,” “or “Gummies” describes vitamins or supplements in a chewable form with a soft jelly texture similar to gummi candy.58 Applicant’s 53 Id. at p. 34. 54 Id. at p. 29. 55 Serial No. 87192440 (KETO GUMMIES) February 1, 2018 Denial of Reconsideration p. 82. 56 Id. at 95-98. 57 Id. at 81. 58 As indicated, Applicant submitted a number of dictionary definitions for “Gummy” as well as a Wikipedia entry for gummi bears. We do not find the definitions or the portion of the Wikipedia article relating to gummi candy, or the Wikipedia article relating to the stage name of singer “Gummy” probative when considered in connection with the goods. Serial Nos. 87192426, 87192433, and 87192440 - 18 - identification of goods indicates that Applicant’s supplements are “dietary and nutritional supplements not containing ketones.” Notwithstanding that the identification of goods recites that the goods do not contain ketones, in its response to the information request, Applicant indicates the goods may be used in connection with a ketogenic diet to promote the development of ketones and will be in gummy form. The combined term KETO GUMMIES merely describes a nutritional supplement in gummy form that will assist in the promotion of ketones while on a ketogenic diet. The combination of the two individual terms does not evoke a new and unique commercial impression apart from their descriptive meaning. The proposed mark is therefore merely descriptive of features of the goods. II. Conclusion We conclude that Applicant’s proposed marks KETO WHEY, KETO BCAAS and KETO GUMMIES are merely descriptive of dietary and nutritional supplements. Decision: The refusals to register Application Serial Nos. 87192426 (KETO WHEY) 87192433, (KETO BCAAS), and 87192440 (KETO GUMMIES) are all affirmed.