The Daily

Trademark Trial and Appeal Board

Jan 28, 2004

No. 76312705 (T.T.A.B. Jan. 28, 2004)

Mailed: January 28 2004
Oral Hearing Date: Paper No. 14
October 28, 2003 GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re The Daily Wellness Company
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Serial No. 76312705
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James C. Wray of Law Offices of James C. Wray for The Daily
Wellness Company.
Jean H. Im, Trademark Examining Attorney, Law Office 105 (Thomas
G. Howell, Managing Attorney).
_______
Before Seeherman, Hohein and Hairston, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
The Daily Wellness Company has filed an application to
register the term "FERTILITY BLEND" for "dietary supplements."1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
ground that, when used in connection with applicant's goods, the
term "FERTILITY BLEND" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, and an
oral hearing was held. We affirm the refusal to register.
1 Ser. No. 76312705, filed on September 14, 2001, which alleges a date
of first use anywhere and in commerce of December 27, 2000.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76312705
2
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 forthwith conveys
information concerning any significant ingredient, quality,
characteristic, feature, function, purpose, subject matter 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). 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 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 such use. See In re Bright-Crest, Ltd., 204 USPQ 591,
593 (TTAB 1979). Thus, "[w]hether consumers could guess what the
product [or service] is from consideration of the mark alone is
not the test." In re American Greetings Corp., 226 USPQ 365, 366
(TTAB 1985).
Applicant, in addition to arguing that the evidence
provided by the Examining Attorney, which consists of dictionary
definitions of the words "fertility" and "blend," is insufficient
to meet her burden of proving mere descriptiveness, principally
Ser. No. 76312705
3
asserts that, as set forth in its main brief, the term "FERTILITY
BLEND" is suggestive of goods which "allow for the blending of
mutual fertility between two people who previously did not have
compatible fertilities." Noting, in particular, that as shown by
the specimens of use, applicant markets its goods as both a
"Fertility Blend for Women and [a] Fertility Blend for Men,"
applicant insists in its main brief that such products "allow
people to blend their fertility levels together." Applicant
consequently maintains that the "meaning of Applicant's mark is
not a product composed of a blend of ingredients [to enhance
fertility], as the Examining Attorney has assumed" but, rather,
"the meaning is blending fertilities." The term "FERTILITY
BLEND," applicant further contends, "may be suggestive, but it
does not forthwith convey an immediate idea of ingredients,
qualities, or characteristics of the goods" to the average
purchasers of its dietary supplements. Consumers thereof,
applicant urges, "will have to invest imagination and time to
figure out what the mark actually represents." That such is
indeed the case, applicant claims, is shown by the "fact that the
Examining Attorney had to read the entire box and the list of
ingredients and all of the other information contained on the
packaging" for applicant's goods.
Finally, applicant points to the absence of any
evidence of third-party use of the term "FERTILITY BLEND" as
indicative of the lack of any merely descriptive significance.
Specifically, applicant maintains in its main brief that:
There is simply no evidence in this case
to support a merely descriptive refusal to
Ser. No. 76312705
4
register. The Examining Attorney has
produced no evidence that the mark is
descriptive .... For example, the Examining
Attorney has submitted no Lexis-Nexis
evidence in this case. To the contrary, the
Examining Attorney merely relies upon
dictionary definitions and the argument that
the words comprising applicant's mark are not
"technical." If the words "FERTILITY" and
"BLEND" were as descriptive as the Examining
Attorney argues, then surely the Examining
Attorney would have submitted a plethora of
evidence. ....
The absence of any showing of a competitive need to use such
term, applicant argues, demonstrates that it is no more than
suggestive, and not merely descriptive, of dietary supplements.
The Examining Attorney, on the other hand, asserts that
the term "FERTILITY BLEND" is merely descriptive of applicant's
goods. In particular, she maintains in her brief that "the
individual word components of the mark are descriptive of the
goods and[,] when combined, ... create a unitary mark that
conveys a descriptive meaning that amounts to no more than the
sum of the individual descriptive meanings." Citing, in support
of her position, the definitions which she made of record from
The American Heritage Dictionary of the English Language (3rd ed.
1992), the Examining Attorney observes that (footnotes omitted):
"Fertility" is defined as "The condition,
quality, or degree of being fertile."
"Fertile" is defined as "[1. a.] Capable of
initiating, sustaining, or supporting
reproduction. b. Capable of growing and
developing; able to mature: a fertile egg."
"Blend" is defined as "[1. b.] Something,
such as an effect or a product, that is
created by blending: [....] See synonyms at
mixture." Based on the ordinary dictionary
definitions of the terms, "fertility blend"
is simply a blend used for fertility. The
Ser. No. 76312705
5
applicant's specimens [of use] clearly
indicate that the goods are of such nature.
Applicant's specimens of use, as indicated previously,
consist of packaging for both its "Fertility Blend for Women"
and "Fertility Blend for Men" products. The former, among
other things, states that the product "Optimizes reproductive and
fertility health"; lists such product as a "DIETARY SUPPLEMENT
WITH A PREMIUM FORMULA OF CHASTEBERRY (VITEX), FOLIC ACID,
ANTIOXIDANTS GREEN TEA, VITAMIN E AND SELENIUM, L-ARGININE, B
VITAMINS AND OTHER NUTRIENTS ESSENTIAL FOR FERTILITY HEALTH"; and
states in part, under "Recommended Use," the following:
As a dietary supplement, take 3 capsules per
day. Use for at least 3 menstrual cycles
before expecting a significant alteration in
fertility health. You may want to have your
partner take Fertility Blend for Men. At
least 50% of fertility issues are due to low
sperm quality and mobility. You may also
want to check with your doctor to determine
whether there are any physical causes for low
fertility that can be corrected by standard
medical procedures. Do not take with Clomid
or other fertility drugs. ....
Similarly, one of the "Fertility Blend for Men"
specimens recites, inter alia, that the product "Optimizes sperm
quality and mobility"; describes such product as a "DIETARY
SUPPLEMENT WITH A PREMIUM FORMULA OF L-CARNITINE, FERULIC ACID,
ANTIOXIDANT VITAMINS C AND E, GREEN TEA AND SELENIUM, ZINC AND B
VITAMINS ESSENTIAL FOR MALE FERTILITY HEALTH"; and indicates in
part, under "Recommended Use," the following:
As a dietary supplement, take 3-4 capsules
per day for the first month, followed with
continued use of at least 2 capsules per day.
Use for at least three months before
Ser. No. 76312705
6
expecting a significant improvement in
fertility health. You may want to have your
partner take Fertility Blend for Women.
Female fertility issues are often due to
hormonal imbalances or stress factors that
decrease the rate of egg release. You may
also want to check with your doctor to
determine whether there are any physical
causes for low fertility that can be
corrected by standard medical procedures.
A second specimen of use, consisting of an actual package for
applicant's "Fertility Blend for Men" goods rather than a copy
of portions of the product packaging, as is the case with the
other two specimens of record, lists a somewhat different
formulation and states, on the back panel, the following (bold in
original):
Fertility Blend for Men is a scientifically
validated herbal/nutritional blend for men to
enhance fertility health by improving sperm
quality and mobility (spontaneous motion).
This patent-pending, premium formula contains
L-carnitine, an amino acid that has been
shown to be critical to the formation of
healthy, active sperm. Ferulic acid, an
antioxidant found in Dong quai, has been
shown to improve sperm quality. The
antioxidants, vitamin C and E, coenzyme coQ10
and selenium, improve overall reproductive
health. Zinc and B vitamins (B6, B12, and
folate) are critical nutrients in the male
reproductive system for proper hormone
metabolism, sperm formation and mobility.
According to the Examining Attorney, when the term
"FERTILITY BLEND" is considered in the context of the packaging
for applicant's goods and in light of the dictionary definitions
of record, it is clearly the case that:
Contrary to the applicant's argument
that the meaning conveyed by the mark is
suggestive of blending [of] fertility, an
average consumer who encountered the mark
"FERTILITY BLEND" would perceive "blend" in
Ser. No. 76312705
7
the same manner as words of similar nature
such as "mix," mixture," "formulation," and
"complex": simply a generic word that
describes the fact that the product contains
a combination of ingredients. Thus, when
seen with the word "fertility," the consumer
would immediately understand that the dietary
supplement blend is made to aid fertility.
No thought or imagination is required to
discern this meaning from the combined words.
Common sense dictates that this would be the
meaning an average purchaser would glean from
the mark, rather than the one suggested by
the applicant of blending male and female
fertility.
Lastly, with respect to applicant's arguments
concerning certain evidentiary insufficiencies, the Examining
Attorney maintains in her brief that "dictionary definitions
alone are sufficient to satisfy the examining attorney's
evidentiary burden," citing In re Gould Paper Corp., 834 F.2d
1017, 5 USPQ2d 1110, 1111-12 (Fed. Cir. 1987), and that while
"other tests ... may be used in determining descriptiveness, such
as the competitor's need to use the mark," "the examining
attorney need not satisfy all of the various tests the courts
have used to determine descriptiveness." The Examining Attorney
consequently concludes that she has satisfied her burden of proof
and that the refusal to register should be affirmed.
Upon consideration of the evidence and arguments
presented, we agree with the Examining Attorney that the term
"FERTILITY BLEND" is merely descriptive of applicant's dietary
supplements. Such term conveys forthwith, without speculation or
conjecture, that applicant's goods constitute a blend of vitamins
and other nutrients to enhance fertility. Actual and prospective
purchasers of applicant's goods, in searching for a dietary
Ser. No. 76312705
8
supplement for use as an aid to increasing their fertility, would
therefore immediately understand, when encountering applicant's
"Fertility Blend for Women" and/or "Fertility Blend for Men"
products, that such goods are a mixture or blend of vitamins and
other nutrients formulated to increase the individual user's
fertility. Moreover, the fact that the packaging for applicant's
goods happens to suggest that a user of one formulation of
applicant's goods may also want to have his or her partner of the
opposite sex use the blend designed for increasing such person's
fertility does not establish that customers for applicant's
dietary supplements would regard the term "FERTILITY BLEND" as
suggesting only a vague or ambiguous blending of a couple's
fertility. Instead, the context in which applicant uses such
term serves to highlight or underscore that the different
formulations of applicant's goods are, in each instance, a blend
to enhance an individual user's fertility health or, stated more
simply, that each particular dietary supplement is a fertility
blend.
Admittedly, it is possible for individually descriptive
words to be combined to form a valid, registrable mark which, as
a whole, is not merely descriptive. However, as indicated by the
Board in, for example, In re Medical Disposables Co., 25 USPQ2d
1801, 1804 (TTAB 1992), in order for such to be the case:
[T]he mere act of combining does not in
itself render the resulting composite a
registrable trademark. Rather, it must be
shown that in combination the descriptiveness
of the individual words has been diminished,
[such] that the combination creates a term so
incongruous or unusual as to possess no
Ser. No. 76312705
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definitive meaning or significance other than
that of an identifying mark for the goods.
See In re Calspan Technology Products, Inc.,
197 USPQ 647 (TTAB 1977).
In this instance, the words "fertility" and "blend"
clearly have their ordinary descriptive meanings, as shown by the
dictionary definitions thereof which the Examining Attorney has
made of record in support of her position, and applicant has not
combined such words in a bizarre, incongruous or other unusual
way. Instead, the individual components of the combined term
"FERTILITY BLEND," especially in light of their manner of use by
applicant as evidenced by the packaging for its goods, plainly
have a meaning in combination which is immediately recognizable
and identical to that of their separate connotations.
Applicant's goods, as stated above, constitute a blend to enhance
fertility or, in essence, a fertility blend. Thus, there is
nothing in the term "FERTILITY BLEND" which is so incongruous or
otherwise unusual as to possess no definitive meaning or
significance other than that of an identifying mark for
applicant's goods, nor does the term possess a new meaning, such
as a double entendre, which is different from that of its
component elements.
Consequently, there is nothing in the term "FERTILITY
BLEND" which, when used in connection with applicant's goods,
requires the exercise of imagination, cogitation or mental
processing or necessitates the gathering of further information
in order for the merely descriptive significance thereof to be
immediately apparent. We note, in this regard, that as applicant
points out, the Examining Attorney has not introduced any
Ser. No. 76312705
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evidence, such as excerpts from articles appearing in the "NEXIS"
database, of a need among applicant's competitors to use the term
"FERTILITY BLEND" to describe dietary supplements marketed as
aids to increasing a person's fertility. However, even assuming
that applicant is in fact the first and/or only user of the term
"FERTILITY BLEND" in connection with dietary supplements, it is
well settled that being the first and/or sole user of a merely
descriptive term does not entitle applicant to registration
thereof where, as here, the term projects only a merely
descriptive significance in the context of applicant's goods.
See, e.g., In re National Shooting Sports Foundation, Inc., 219
USPQ 1018, 1020 (TTAB 1983); and In re Mark A. Gould, M.D., 173
USPQ 243, 245 (TTAB 1972). Furthermore, even if potential
competitors of applicant may be able to describe and advertise
the same or similar goods by terms other than "FERTILITY BLEND,"
that does not mean that such term is not merely descriptive of
applicant's goods. See, e.g., Roselux Chemical Co., Inc. v.
Parsons Ammonia Co., Inc., 299 F.2d 855, 132 USPQ 627, 632 (CCPA
1962).
In view thereof, we concur with the Examining Attorney
that, in this case, the dictionary definitions of "fertility" and
"blend," together with the packaging submitted by applicant as
specimens of use, are sufficient to satisfy her burden of proof
that the term "FERTILITY BLEND" is merely descriptive of
applicant's dietary supplements within the meaning of the
statute.
Ser. No. 76312705
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Decision: The refusal under Section 2(e)(1) is
affirmed.