Good Health Natural Foods, Inc.

Trademark Trial and Appeal Board

Mar 17, 2004

No. 76145027 (T.T.A.B. Mar. 17, 2004)

Mailed: 17 MAR 2004
Paper No. 13
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Good Health Natural Foods, Inc.
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Serial No. 76145027
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Eric D. Paulsrud of Leonard, Street and Deinard for Good
Health Natural Foods, Inc.
Georgia Ann Carty, Trademark Examining Attorney, Law Office
111 (Craig Taylor, Managing Attorney).
_______
Before Bucher, Holtzman and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
On October 12, 2000, Good Health Natural Foods, Inc.
(applicant) applied to register the mark VEGGIE CRISPS (in
typed form) on the Principal Register for goods identified
as “potato chips, and snack foods made primarily from
potato flour with other vegetable ingredients” in
International Class 29. The application (Serial No.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser. No. 76145027
2
76145027) is based on applicant’s allegation of a bona fide
intention to use the mark in commerce.
The examining attorney refused to register the mark on
the ground that the mark, when applied to the goods, is
merely descriptive. 15 U.S.C. § 1052(e)(1). After the
examining attorney made the refusal final, this appeal
followed.1
The examining attorney’s position is that “it is
evidently clear that the applicant’s goods feature goods
that may be defined as CRISPS that have vegetables as part
of their ingredients.” Office Action dated March 14, 2002
at 2. In response, applicant argues that its mark is
suggestive inasmuch as “‘CRISPS’ is a suggestive term when
used in connection with Applicant’s goods because it
suggests a multitude of different meanings” and “VEGGIE is
suggestive in conveying to the consumer that the product is
something more than a simple potato chip or cracker.”
Applicant’s Brief at 4.
We affirm.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics
1 On July 16, 2003, the board granted applicant’s request to
strike the examining attorney’s brief. Therefore, when we refer
to the positions of the examining attorney, we will be referring
to preceding papers.
Ser. No. 76145027
3
of the goods or services or if it conveys information
regarding a function, purpose, or use of the goods or
services. In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215, 217 (CCPA 1978). See also In re Nett
Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001); In re MBNA America Bank N.A., 340 F.3d 1328, 67
USPQ2d 1778, 1780 (Fed. Cir. 2003) (A “mark is merely
descriptive if the ultimate consumers immediately
associate it with a quality or characteristic of the
product or service”).
To be merely descriptive, a term need only describe a
single significant quality or property of the goods. In
re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987); Meehanite Metal Corp. v. International Nickel Co.,
262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959). We look at
the mark in relation to the goods or services, and not in
the abstract, when we consider whether the mark is
descriptive. Abcor, 200 USPQ at 218.
We begin by analyzing the individual terms “veggie”
and “crisps.” The examining attorney has introduced a
dictionary definition of “veggie” as meaning “a vegetable
(informal).” The American Heritage Dictionary of the
English Language (3rd ed.). Clearly, the term “veggie” is
merely descriptive for a snack food containing “other
Ser. No. 76145027
4
vegetable ingredients” as applicant’s products are
identified.
Next, we look at the term “crisps.” The examining
attorney has submitted a Consumer Reports (May 2001)
article on potato chips. In that article, the author
explains that “[f]abricated varieties such as Pringles are
uniform chips made from a dough of dehydrated potato
flakes – which means they can’t be called potato ‘chips,’
but must be labeled ‘crisps’ or ‘snacks.’” Other excerpts
show similar uses of the term “crisps.”
Technology to produce reduced fat potato chips
(crisps) was developed, and in 1983, Nalley’s low
fat, low salt Golden Light potato chips were
launched.
Food Engineering & Ingredients, May 1, 2001
Klatte highlighted a few key salted snack trends
affecting the potato chip and potato crisps
categories.
Snack Food & Wholesale Bakery, April 2000.
The chip has become the garnish of the moment …
Potato chips and crisps are just one option.
Nations Restaurant News, November 5, 2001.
PepsiCo innovations which have been appearing on the
market over the past year, include Lay’s Deli-Style
Chips which are harder texture, gourmet potato chips
(crisps).
Food Engineering International, September 1, 2001.
In addition, the examining attorney included two
registrations for snack foods in which the registrant
disclaimed the term “crisps.” See Registration Nos.
Ser. No. 76145027
5
1,912,686 (PRINGLES RIGHT CRISPS, “crisps” disclaimed) and
No. 2,119,198 (JALSBERG CHEESE CRISPS, “cheese crisps”
disclaimed). Other registrations disclaim the term
“crisps” in association with crackers. See Registration
Nos. 2,374,285 and 2,228,609. Third-party registrations
can be used as a form of dictionary to illustrate how the
term is perceived in the trade or industry. In re J.M.
Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987) (“[T]hird
party registrations are of use only if they tend to
demonstrate that a mark or a portion thereof is suggestive
or descriptive of certain goods and hence is entitled to a
narrow scope of protection. Used in this proper, limited
manner, third party registrations are similar to
dictionaries showing how language is generally used”)
(internal quotation marks deleted).
One other point that provides some support for the
examining attorney’s position is that the term “crisps” is
defined as “Chiefly British. A potato chip.” The
American Heritage Dictionary of the English Language (3rd
ed.). Several articles appearing in United States
publications use the term “crisps” in this manner.
But once in their street clothes, the fashion is much
the same on both sides of the Atlantic: Down jackets
and pedal pushers. As for lunch, Oak usually eats a
sandwich, crisps (potato chips) and biscuits
(cookies).
Ser. No. 76145027
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Central Maine Morning Sentinel, April 25, 2001.
The food is not memorable, but pubs do provide potato
chips – call them “crisps,” please -- in some truly
exotic flavors.
Washington Post, March 11, 2001.
The British seem to be voracious consumers of potato
chips – or “crisps” as they are sometimes called.
Boston Globe, October 13, 2000.
While the fact that a word has a descriptive meaning
in a foreign country does not mean that the term would have
the same in the United States, in this case, we have at
least some evidence that Americans would be exposed to that
meaning through its use in publications that originate in
the United States.
Next, we must consider whether the mark as a whole is
merely descriptive because the fact that the individual
components of the mark are descriptive does not dictate
that the combined term is likewise merely descriptive.
Here, when the terms “veggie” and “crisps” are combined and
considered in their entirety, we conclude that the mark
that applicant seeks to register is merely descriptive.
When prospective purchasers would encounter the mark VEGGIE
CRISPS on snack foods made primarily from potato flour with
other vegetable ingredients, the mark simply informs
prospective purchasers that its chip-like snacks are made
Ser. No. 76145027
7
from potatoes and other vegetable ingredients. There is
nothing unique or incongruous about the combined term.
Applicant argues that “veggie” is merely suggestive
because “it does not identify any of a broad group of
vegetable ingredients that could be contained in the
goods.” However, the designation “vegetable” is not so
broad as to be meaningless and applicant’s identification
of goods suggests that it intends to use “other vegetable
ingredients” in its snack food. The term “veggie” would
exactly describe the fact that applicant’s snack food could
contain other vegetable ingredients in addition to
potatoes.
Applicant also points out that the term “crisps” has
many different meanings. While the evidence does show that
“crisp” is a term applied to many different food products,
it is used descriptively with these products. The evidence
indicates that “crisps” is used to describe potato chips,
potato chip-like products, crackers, and other snack foods.
Applicant’s use of the term conforms to these common uses.
Based on this record, we conclude that applicant’s
mark is merely descriptive when used with applicant’s goods
inasmuch as applicant’s mark identifies a feature or
characteristic of applicant’s goods, i.e., they are crisps
made, inter alia, with vegetable ingredients.
Ser. No. 76145027
8
Decision: The examining attorney’s refusal to
register the term VEGGIE CRISPS on the ground that the mark
is merely descriptive of the involved goods is affirmed.