Alpha Link Trading Ltd.

Trademark Trial and Appeal Board

Aug 5, 2021

88617904 (T.T.A.B. Aug. 5, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: August 5, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Alpha Link Trading Ltd.
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Serial No. 88617904
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Stephen J. Driscoll of FisherBroyles LLP,
for Alpha Link Trading Ltd.
Lourdes Ayala, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
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Before Kuczma, Goodman and Lebow,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Alpha Link Trading Ltd. (“Applicant”) seeks registration on the Principal Register
of the mark BLOOD SUGAR PREMIER (in standard characters) for dietary
supplements in International Class 5.1

1 Application Serial No. 88617904 was filed on September 16, 2019, based upon Applicant’s
assertion 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).

Page references to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal
refer to the Board’s TTABVUE docket system. Applicant’s brief is at 4 TTABVUE. The
Examining Attorney’s brief is at 8 TTABVUE.
Serial No. 88617904
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the grounds that it is
merely descriptive.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Evidentiary Issue
In her brief, the Examining Attorney has requested the Board take judicial notice
of the dictionary definition of “premier” from The American Heritage Dictionary and
Merriam-Webster dictionary, but did not provide a copy of those definitions.”3
Additionally, Applicant, in its brief, referenced the Google Search Dictionary
definition from “Oxford Languages” of “premier” as “first in importance, order, or
position; leading,” attaching a copy of that definition and other documents as part of
several exhibits filed with the Board before it filed its appeal brief.4 Neither the
Examining Attorney nor Applicant followed the proper procedures.

2 The Examining Attorney also refused registration under Section 2(d), 15 U.S.C. § 1052(d).
However, the Examining Attorney advised in her brief that the Section 2(d) refusal has been
withdrawn. 8 TTABVUE 3.
3 The Examining Attorney did provide links to Merriam-Webster dictionary and American
Heritage Dictionary. However, “the Board will not utilize a link or reference to a website’s
Internet address to consider content that may appear there.” TRADEMARK MANUAL AND
APPEAL BOARD MANUAL OF PROCEDURE (TMEP) (June 2021). See also In re Aquitaine Wine
USA, LLC, 126 USPQ2d 1181, 1195 n.21 (TTAB 2018) (“we do not consider websites for which
only links are provided”).
4 4 TTABVUE. The Board advised Applicant that it was giving no consideration to this filing.
5 TTABVUE. “The record in the application should be complete prior to the filing of an appeal.
Evidence should not be filed with the Board after the filing of a notice of appeal. If the
appellant or the examining attorney desires to introduce additional evidence after an appeal
is filed, the appellant or the examining attorney should submit a request to the Board to
Serial No. 88617904
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Nevertheless, because the meaning of “premier” is important to our analysis and
is not a fact subject to reasonable dispute, we will take judicial notice of the definition
of “premier” as “best or most important,” and “first in importance, rank, or position;
chief, leading, foremost” from the Cambridge and Oxford dictionaries.5 In re Jonathan
Drew, Inc., 97 USPQ2d 1640, 1642 n.4 (TTAB 2011) (The Board may take judicial
notice of dictionaries, including online dictionaries which exist in print format).
II. Mere Descriptiveness
Section 2(e)(1) of the Trademark Act prohibits the registration of a mark which,
when used on or in connection with an 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 USPQ2d 1828, 1831 (Fed. Cir.
2007)); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987).
A mark need not immediately convey an idea of each and every specific feature of the
goods in order to be considered merely descriptive; rather, it is sufficient that the
mark describes one significant attribute, function or property of the goods. In re
Chamber of Commerce, 102 USPQ2d at 1219; In re H.U.D.D.L.E., 216 USPQ 358, 359
(TTAB 1982); In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973).

suspend the appeal and to remand the application for further examination.” Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d).
5 Cambridge Dictionary (dictionary.cambridge.org); Oxford Dictionary (oed.com), both
accessed August 2, 2021.
Serial No. 88617904
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Descriptiveness must be evaluated “in relation to the particular goods for which
registration is sought, the context in which it 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.” In re Bayer, 82 USPQ2d at 1831. The fact
that a term may have other meanings in different contexts is not controlling. In re
Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). The determination of mere
descriptiveness must not be made in the abstract or on the basis of guesswork. In re
Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978). 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).
Lastly, “[m]arks that are merely laudatory and descriptive of the alleged merit of
a product are also regarded as being descriptive. … Self-laudatory or puffing marks
Serial No. 88617904
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are regarded as a condensed form of describing the character or quality of the goods.”
In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999)
quoting 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION §11:17 (4th ed. 1996)).
III. Evidence and Arguments
The Examining Attorney’s evidence consists of a Wikipedia article titled “blood
sugar level.” (December 17, 2019 at TSDR 19-27).6 The article states that “blood sugar
level” is “the concentration of glucose present in the blood of humans and other
animals.” Id. TSDR 19. The Wikipedia article discusses units (how to measure blood
sugar level), normal value range of blood sugar level in humans and animals, the
body’s regulation of blood sugar level, abnormalities of blood sugar level (high and
low blood sugar) and glucose measurement techniques.
In connection with the now withdrawn Section 2(d) refusal, Applicant submitted
two live third-party registrations showing disclaimers of the term “premier” covering
dietary supplements, or dietary food supplements, herbal supplements and
nutritional supplements. June 17, 2020 Response to Office Action at TSDR 2-3, 6-7.7

6 In connection with the withdrawn Section 2(d) refusal, the Examining Attorney submitted
website evidence relating to dietary supplements to show that the same entity commonly
provides the relevant goods and markets the goods under the same mark. December 17, 2019
Office Action at TSDR 1, 3-18.
7 The Applicant also submitted an expired third-party registration, which is not evidence of
anything other than that it issued. See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115
USPQ 1816, 1819 n.4 (TTAB 2015), citing Sunnen Prods. Co. v. Sunex Int’l Inc., 1 USPQ2d
1744, 1747 (TTAB 1987). Applicant submitted a list of third-party registrations and
applications containing the term PREMIER obtained from the USPTO’s Trademark
Electronic Search System database (TESS). June 17, 2020 Office Action at TSDR 8-9.
Because the Examining Attorney did not advise Applicant that the listing of registrations
and applications was insufficient to make them of record, as well as discussed the list in her
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We find this evidence relevant to the Examining Attorney’s descriptiveness refusal.
See In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006) (“[T]hird party
registrations show the sense in which the word is used in ordinary parlance and may
show that a particular term has descriptive significance as applied to certain goods
or services.”) (citing Inst. Nat’l des Appellations D’Origine v. Vintners Int’l Co., 958
F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992)).
Relying on the Google Search Dictionary definition of “premier” as “first in
importance, order, or position,” that is not of record, Applicant argues that “the notion
that blood sugar is first [in importance] is nonsensical” as blood sugar can be “high,”
“low” or “okay” and that this notion (“blood sugar is first”) “has no relationship to or
in any way describes the goods—i.e., dietary supplements.” 6 TTABVUE 6. Applicant
also argues that the Wikipedia article submitted by the Examining Attorney
identifies “blood sugar level, blood sugar concentration, or blood glucose level
concentrations present in the blood of humans and other animals” which “equates to
various different meanings–none of which describe a dietary supplement.”
(emphasis in original) 6 TTABVUE 5.
The Examining Attorney argues that
BLOOD SUGAR refers to the blood sugar level, blood sugar
concentration, or blood glucose level concentrations present in the blood
of humans and other animals and the dietary supplements in question
are designed to help regulate a person’s blood sugars. The word
PREMIER merely refers to something that is first or paramount and
connoting the alleged merit of the product. The word PREMIER

final office action, the Examining Attorney has waived any objection to the list. In re City of
Houston, 101 USPQ2d 1534, 1536 (TTAB 2010). We consider the list but only insofar as the
information provided by Applicant. Id.
Serial No. 88617904
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describes a character or quality of the goods that does not add trademark
value to the mark and therefore the mark as a whole is considered
descriptive. 8 TTABVUE 7.

Together the wording BLOOD SUGAR PREMIER relays and implies to
consumers that Applicant’s dietary supplements are the best, leading or
top of the line in the market place for blood sugar control. An average
consumer who sees this mark and/or comes across the mark on a shelf
in the marketplace will get the commercial impression that Applicant’s
dietary supplements are the foremost or best in the industry to control
blood sugar levels. 8 TTABVUE 8.

The Examining Attorney concludes that “[b]ased on the evidence in this case, the
mark BLOOD SUGAR PREMIER comprised of the descriptive wording BLOOD
SUGAR plus the laudatory word PREMIER is descriptive as a whole as the [sic] mark
and relays and implies to consumers that the dietary supplements are the best or
leading in the market place for blood sugar control.” 8 TTABVUE 9.
IV. Analysis
Our primary reviewing court, the Federal Circuit Court of Appeal, and this Board
have held that other marks which arguably denote “high quality,” “excellence” and
“superior quality” are laudatory and thus merely descriptive. These include the term
PREMIER in In re Best Software Inc., 58 USPQ2d 1314, 1317 (TTAB 2001) (finding,
in connection with an application to register BEST! SUPPORTPLUS PREMIER and
BEST! SUPPORTPLUS for computer consultation services, “that the words ‘BEST’
and ‘PREMIER’ are merely descriptive laudatory words which should be disclaimed”),
the term BEST, in In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056, 1058-
59 (Fed. Cir. 1999) (THE BEST BEER IN AMERICA for “beer and ale” found to be
laudatory and incapable of distinguishing source), and the term ULTIMATE in In re
Serial No. 88617904
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Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (THE
ULTIMATE BIKE RACK is “a laudatory descriptive phrase that touts the superiority
of Nett Designs’ bike racks”).
In this case, the definition of PREMIER as “best” and “first in rank,” attributes
superiority to the identified goods, and supports a finding that this term is laudatory
and merely descriptive in connection with Applicant’s dietary supplements. The
third-party registrations for dietary supplements submitted by Applicant with
disclaimers of “premier” lend further support to this finding.
As to the term BLOOD SUGAR, as indicated, the Wikipedia article provides that
“blood sugar level, blood sugar concentration, or blood glucose level is the level of
glucose present in the blood of human and other animals” and is regulated by the
body. December 17, 2019 Office Action at TSDR 19, 21. The article also indicates that
many factors affect blood sugar levels and that blood sugar levels outside the normal
range can be an indicator of a medical condition or disease. Id. at 19-23.
The Wikipedia evidence submitted by the Examining Attorney supports a finding
that the term BLOOD SUGAR is descriptive when used in connection with
Applicant’s goods, as it is common knowledge, and the record reflects, that dietary
supplements are used in connection with supporting body health. December 17, 2019
Office Action at TSDR 3-17 (showing supplements offered to support brain health,
digestive health, heart health, energy management, inflammation management;
nutrients for supporting energy, immunity and metabolism; liver cleanse and joint
health). See also In re Carvel Corporation 223 USPQ 65, 69 (TTAB 1984) (“Both in
Serial No. 88617904
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terms of normal dictionary meaning and on the basis of common knowledge, “fresh”
or “freshest” as applied to ice cream would, we believe, be readily perceived as a
common and normal descriptive/superlative characterization (just as “smooth”,
“creamy”, “delicious” or “flavorful” would, by applicant’s concession, be so
perceived).”). We are not persuaded by Applicant’s argument that BLOOD SUGAR
has multiple meanings due to the Wikipedia article identifying blood sugar level as
being referred to synonymously as “blood sugar concentration” or “blood glucose
level.” Even if other terms or phrases exist to refer to blood sugar level, that would
not prevent the term BLOOD SUGAR from being merely descriptive of Applicant’s
product. See Roselux Chemical Co., Inc. v. Parsons Ammonia Co., Inc., 299 F.2d 855,
132 USPQ 627, 632 (CCPA 1962).
We also find that the terms BLOOD SUGAR and PREMIER when combined to
form BLOOD SUGAR PREMIER do not lose their descriptive significance. The
combination BLOOD SUGAR PREMIER does nothing more than tout the superiority
of Applicant’s dietary supplements used to assist in blood sugar level management.
Further, although Applicant argues that BLOOD SUGAR PREMIER is
nonsensical, the juxtaposition of the terms where PREMIER follows BLOOD SUGAR
does not change the result. This combination does not create an incongruous non-
descriptive meaning different from a “premier blood sugar” dietary supplement. See
In re Away Chemical Corp., 217 USPQ 275, 276 (TTAB 1982) (“the transposition of
‘tablets for pans’ to ‘pan-tablets’” is insufficient to overcome “basic descriptive cast”
of the involved mark); and In re Dairimetrics, Ltd., 169 USPQ 572, 573 (TTAB 1971)
Serial No. 88617904
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(ROSE MILK, though not found in any dictionaries, is synonymous in meaning to the
“recognized descriptive name” “Milk of Roses” for a rose scented cosmetic
preparation). See also In re Copytele Inc., 31 USPQ2d 1540, 1542 (TTAB 1994) (“While
applicant is correct that a non-descriptive trademark may be fashioned from the
incongruous combination of several words that are, individually, merely descriptive
of an applicant’s goods, we fail to see anything incongruous in the combination of the
words ‘SCREEN FAX PHONE.’”). Therefore, the transposition of “blood sugar” and
“premier” to form BLOOD SUGAR PREMIER evokes substantially the same if not
identical meaning and commercial impression as “premier blood sugar.”
In view of the foregoing, we find that Applicant’s proposed designation BLOOD
SUGAR PREMIER is merely descriptive of its dietary supplements.
V. Conclusion
We find that the combined term BLOOD SUGAR PREMIER identifies a
significant characteristic, feature, purpose, function or use of the goods identified in
the application and is merely descriptive.
Decision: The refusal to register Applicant’s mark BLOOD SUGAR PREMIER is
affirmed.