Vital Pharmaceuticals, Inc.

Trademark Trial and Appeal Board

May 6, 2009

No. 77134306 (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.