Ayurvedic Concepts, Ltd.

Trademark Trial and Appeal Board

Apr 18, 2007

No. 78154263 (T.T.A.B. Apr. 18, 2007)

Mailed:
April 18, 2007
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Ayurvedic Concepts, Ltd. d/b/a Himalaya USA
________

Serial No. 78154263
_______

John S. Egbert of Harrison & Egbert for Ayurvedic Concepts,
Ltd. d/b/a Himalaya USA.

Jason F. Turner, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Walters, Bucher and Grendel, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Ayurvedic Concepts, Ltd. d/b/a Himalaya USA, a Texan
partnership, whose general partner is Concorp Management
Company, a Texas corporation, seeks registration on the
Supplemental Register of the mark NAIL CARE (in standard
character format) for “nutritional supplements” in
International Class 5.1

1 Application Serial No. 78154263 was filed on the Principal
Register on August 14, 2002 based upon claims of first use
anywhere and first use in commerce at least as early as 2001. On
March 3, 2004, applicant amended this application to the
Supplemental Register.

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78154263
- 2 -
This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this designation based upon the ground that this
term is generic for the identified goods and is therefore
incapable of identifying the goods and distinguishing them
from the goods of others, under Section 23 of the Trademark
Act, 15 U.S.C. § 1091.
Applicant and the Trademark Examining Attorney
submitted briefs. We affirm the refusal to register.
Summary of the arguments
Applicant argues that the proposed mark is not generic
for the genus or class of goods at issue and that the
Trademark Examining Attorney has failed to sustained his
burden of proof with evidence that illustrates that
consumers would understand the proposed mark to refer to the
genus or class of goods.
The Trademark Examining Attorney contends that “nail
care” is a key function or purpose of applicant’s
supplements, that the correct genus of the identified goods
is “nail care supplements,” and that the evidence of record
clearly establishes that the relevant public would recognize
the term “Nail Care” as a reference to the genus of the
goods.
Serial No. 78154263
- 3 -
The law of genericness
The Trademark Act provides for registration on the
Supplemental Register of marks “capable of distinguishing
applicant’s goods or services and not registrable on the
Principal Register.” Trademark Act Sections 23(a), 23(c).
“Generic terms are common names that the relevant purchasing
public understands primarily as describing the genus of
goods or services being sold. They are by definition
incapable of indicating a particular source of the goods or
services.” See In re Dial-A-Mattress Operating Corp.,
240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001) [much-
publicized, alphanumeric telephone number 1-888-M-A-T-R-E-S-S is
not generic inasmuch as there is no evidence that members of
the relevant public refers to class of shop-at-home
telephone mattress retailers in this manner]; In re Merrill
Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567,
4 USPQ2d 1141, 1142 (Fed. Cir. 1987) [CASH MANAGEMENT ACCOUNT
not shown to meet the rigorous standard to support finding
of genericness]; and H. Marvin Ginn Corp. v. Int’l Ass’n of
Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed.
Cir. 1986) [relevant portion of the public does not refer to
a class of fire fighting publications as FIRE CHIEF]. Because
Serial No. 78154263
- 4 -
they are incapable of identifying source, generic terms are
not registrable on the Supplemental Register.
Applicant is correct in that the Office bears the
burden of establishing genericness based on clear evidence
of generic use. In re American Fertility Society, 188 F.3d
1341, 51 USPQ2d 1832 (Fed. Cir. 1999) [The United States
Patent and Trademark Office failed to demonstrate that the
phrase SOCIETY FOR REPRODUCTIVE MEDICINE is generic term for
applicant’s services]. The Office cannot rely only on
definitions and generic uses of the constituent terms of the
phrase, but “must conduct an inquiry into ‘the meaning of
the disputed phrase as a whole.’” Id. at 1836. However,
this is not limited to nouns; rather, a term that serves as
a common descriptor of the key feature or function of goods
can be held to be generic. In re Ricci-Italian
Silversmiths, Inc., 16 USPQ2d 1727 (TTAB 1990) (ART DECO
generic for flatware); In re Bonni Keller Collections Ltd.,
6 USPQ2d 1224 (TTAB 1987) (LA LINGERIE generic for stores that
sell lingerie). In the final analysis, applicant contends
that the Trademark Examining Attorney has failed to show, by
a preponderance of the evidence, that the term “Nail Care”
is generic for “nutritional supplements.”
Serial No. 78154263
- 5 -
According to our primary reviewing Court, the
determination of whether the term sought to be registered is
generic involves a two-part inquiry:
First, what is the genus of the goods or
services at issue? Second, is the term
sought to be registered … understood by the
relevant purchasing public primarily to refer
to that genus of goods or services?

Marvin Ginn, supra at 530. See also, In re Northland
Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961
(Fed.Cir. 1985) [BUNDT is generic for a ring cake mix].
Thus, the test for determining whether a term is generic is
its primary significance to the relevant public, that is,
whether the term is used or understood, by purchasers or
potential purchasers of the goods or services at issue,
primarily to refer to the class of such goods or services.
See Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d
1551 (Fed.Cir. 1991) [Petitioner failed to show by a
preponderance of the evidence that the primary significance
to the relevant public (automobile owners and operators) of
the word TOUCHLESS is generic designation for automobile
washing services]; and In re Merrill Lynch, supra; and In re
Leatherman Tool Group, Inc., 32 USPQ2d 1443 (TTAB 1994)
[POCKET SURVIVAL TOOL is generic for pocket-sized survival
implement]. Evidence of the relevant public’s understanding
Serial No. 78154263
- 6 -
of a term may be obtained from any competent source,
including direct testimony of consumers, consumer surveys,
newspapers, magazines, dictionaries, catalogs, trade
journals and other publications. See In re Merrill Lynch,
supra, and In re Northland Aluminum Products, Inc., supra.
ANALYSIS
We turn then to an analysis of how the law on
genericness applies to the facts of this case. Initially,
we find that the members of the relevant public for these
goods would be ordinary consumers, as there is no evidence
that the consumers of applicant’s goods constitute a more
limited or specialized group.
In support of his position of genericness for the
affected goods, the Trademark Examining Attorney referenced
a number of dictionary excerpts for these words individually
as well as together. Both the term as defined in a medical
dictionary, and combining the dictionary meanings of the two
individual words in a common-sense manner, we agree that the
term “Nail Care” refers to the proper maintenance / good
health of fingernails and/or toenails. Along with the other
evidence of record discussed, infra, we simply view the
dictionary evidence as being corroborative of genericness –
not in itself conclusive of genericness.
Serial No. 78154263
- 7 -
Thousands of appearances of the combined words “nail
care” together that came up in a search of news articles
show that the two-word expression is clearly a term of art
in the field of skin care and beauty care. The Trademark
Examining Attorney contends that selected excerpts he placed
into the record (drawn from articles located on the
LEXIS/NEXIS automated database) demonstrate that in the
fields of skin and beauty care as well as in the nutritional
supplement business, the term “nail care” is used to include
vitamins and nutritional supplements that are taken to
strengthen one’s nails:
Nestle SA, plans to set up a company with
French cosmetics producer L’Oreal SA to
develop nutritional supplements that may help
skin, hair and nail care.2

Glemby [Incorporated] also operates 215
‘Shears at Sears’ and 35 ‘Black Hair Is
Salons.’ It retails it own hair care line,
cosmetics and nail care products and vitamin
and mineral supplements in the prestige
salons.
Seymour Finkelstein estimated that the
company will do in excess of $200 million for
the fiscal year … .3

“We offer treatments that feed the natural
nail, giving it the nutrition it needs.”4

2 “The Bloomberg Finance Ticker,” The Boston Herald, June 26,
2002.
3 “Glemby forging a salon empire; Four of a Kind - body, bath,
hair and sun products supplement,” Women's Wear Daily, May 10,
1985.
4 “Head for Capelli Salon when you want to look your very
best,” Lancaster New Era, July 11, 1996.
Serial No. 78154263
- 8 -
Also of record are excerpts from a number of Internet
websites showing uses of “nail care” as a specific category
of skin and beauty care or nutritional supplements. For
example, on eVitamins.com, where one can shop by categories,
under “Natural Skin Care Products” is the category “Nail
Care.” Similarly, on NutritionExpress.com, the category are
“Hand and Nail Care” below which is “Nail supplements.” On
iHealthTree.com, the categories are “Beauty and Personal
Care” / ”Hand & Nail Care” / “Nails Care – Manicure.” On
NCBuy.com, the categories are “Health” / “Nutrition” / “Nail
Care.” On DermStore.com, the categories are “Nail Care” /
“Supplements.” At Health.Yahoo.com, the categories are
“Skin and Beauty Center” / “Beauty”/ “Nail Care.” At
SmartBomb.com, the categories are “Personal Care” / “Bath
and Body Care” / “Nail Care.”
Drugstore.com has a product category known as “Nails
Supplements,” while WonderLabs.com includes its “SKIN HAIR &
NAILS” nutritional supplement under the category of “Nail
Care.” WhatSheBuys.com advertises Mavala® Nailactan
Nutritive Treatment Cream, a product that allegedly
nourishes and restores brittle and damaged nails.
We also note that several Internet websites of record
contain discussions of the relationship of nutritional
supplements to the care of nails. These articles are more
Serial No. 78154263
- 9 -
extensive than the abbreviated excerpts drawn from the
LEXIS/NEXIS entries. For example, the website
SmartSkinCare.com has a “quick tips” article with the
headline, “Nail Care Tip: Eat your way to better nails,”
that discusses a vitamin supplement called “biotin.”
Similarly, an online publication called “ALIVE” contained the
following article on the importance of nutritional
supplements for healthy nails:
Nutritional Supplements
All kinds of nutritional deficiencies make themselves
known through nail problems. Protein is absolutely
vital for nail health. There are many different
protein supplements available that can be added to
your food. All nutrients are essential for healthy
nails, hence the importance of a healthy diet.
Silicon is a vital mineral for strengthening the nails
and hair. It is available in capsules called silica
in an organic form, and in a gel in a mineral form.
Lack of vitamin A or calcium will cause dry, brittle
nails. If ridges develop on the nails as well, a B-
vitamin deficiency is likely the cause. B vitamins
should be supplemented. Vitamin C is also vital for
healthy nails because it supports the immune system
against infection.

Hangnails are more likely to occur when vitamin C or
the B vitamin folic acid are inadequate. White spots
are often a sign of a zinc deficiency. Nail problems
due to fungal infection should be supplemented with an
Lactobacillus acidophilus complex, which is a friendly
bacteria needed by the body to maintain normal flora
and prevent the growth of micro-organisms that cause
disease.

Brittleness and horizontal peeling may also be the
result of B-vitamin deficiencies, a lack of
hydrochloric acid (HCl) in the stomach or iron
deficiency. Calcium deficiency may also contribute to
this problem, especially if there is a low stomach
Serial No. 78154263
- 10 -
acid output. Stomach acid is essential for digesting
protein and absorbing vitamins and minerals.

The older the person, the greater the likelihood of
having low stomach acid. Vitamin and mineral
supplementation will not be of much help unless
stomach acidity is increased at the same time.
Supplements such as betaine and pepsin HCl and
glutamine HCl, all help to increase stomach acidity.

All supplements should be taken over an extended
period of time. It will take several weeks before a
change is noticeable.5

The Examining Attorney included in the record the
following screenprint of applicant’s website from May 2006,
one paragraph of which contains the text on the left below:
NailCare is a unique
herbal supplement that
helps maintain healthy
nail structure,
something of aesthetic
value to many,
especially women.
NailCare addresses the
two factors known to
be associated with
nail health: adequate
calcium
supplementation and
appropriate
vitaminization.

NailCare combines
several sources of
natural vitamins and
bioavailable calcium
for optimum results.
Studies have shown
NailCare to be very
effective in nail
vitaminization and

5 http://www.alive.com/2879a9a2.php?subject-bread-
cramb=74

Serial No. 78154263
- 11 -
mineralization as well as in regenerating the connective tissue
of the nails.

The effectiveness of NailCare in supporting delicate nail
metabolisms is enhanced by several herbs which have been shown
to have adaptogenic activity.

(emphasis supplied by the Trademark Examining Attorney)

Our analysis begins with a determination of the crucial
inquiry as to the genus of the goods at issue. See Marvin
Ginn, supra; and In re Rodale Inc. 80 USPQ2d 1696 (TTAB
2006) [NUTRITION BULLETIN is generic for services of providing
information in the field of health and diet via an Internet
website].
We find in this case that the proper genus of goods is
consistent with applicant’s identification of goods, if not
necessarily as broadly defined as the “nutritional
supplements” named in the application. Applicant argues
that its listed identification must determine the genus of
goods. However, in the scheme of things, we would place
applicant’s suggested category of “nutritional supplements”
at a much higher and more inclusive level than “genus.” We
find that the term “nutritional supplements” comprises a
very broad range of vitamins and nutrients that are well
beyond applicant’s field, as revealed in this application,
and includes items having little or nothing in common with
applicant’s goods.
Serial No. 78154263
- 12 -
The evidence of record shows that there is a distinct
commercial market for supplements designed specifically to
deal with ensuring the optimal condition of one’s
fingernails and/or toenails. In the context of applicant’s
goods, as shown in this record, we find “nutritional
supplements” to be too broad and inclusive a category
properly to be deemed a “genus.” Cf. Marvin Ginn, supra, in
which the court found the applicable genus of goods to be
not merely “magazines,” but rather the defendant’s
particular class of magazines, i.e., “magazines directed to
the field of firefighting.” See also In re A La Vieille
Russie Inc., 60 USPQ2d 1895, 1897 n. 3 (TTAB 2001)
[RUSSIANART generic for dealership services in the field of
fine art, antiques, furniture and jewelry].
Although the two-word identification of goods does not
mention nutritional supplements specifically designed to
assist consumers maintain healthy nails, the information in
the record shows that “nail care supplements” must be
presumed to be included within the broader category of
nutritional supplements.
Next, we must determine whether the purchasing public
understands “Nail Care” to refer to the genus of goods at
issue herein. See Marvin Ginn, supra; In re Recorded Books,
Serial No. 78154263
- 13 -
Inc., 42 USPQ2d 1275 (TTAB 1997) [RECORDED BOOKS generic for
for pre-recorded audio tape cassettes featuring literary
works]; and In re Women’s Publishing Co. Inc., 23 USPQ2d
1876, 1877 (TTAB 1992) [DECORATING DIGEST not shown to be
generic for a magazine featuring articles on decorating].
We note from the LEXIS/NEXIS excerpts and the Internet
pages referenced above that the field of human “nail care”
(similar to terms like “hair care” or “skin care”) includes
a wide range of goods and services directed to ensuring that
consumers will have attractive and healthy nails. Given the
manner in which the term “nail care” is used, it would have
to be considered to be generic, and hence unregistrable, on
all of these goods and services – from nail clippers,
scissors and files, to topical lotions, oral nutritional
supplements and manicure treatments for one’s fingernails.
At the very least, the record demonstrates that one
essential element of good care of one’s nails is proper
nutrition. Hence, it is most unlikely that relevant
consumers who are aware of this category of products would
view the designation, “Nail Care,” primarily as an
indication of a single source of such goods.
The Trademark Examining Attorney points out that
applicant’s website, as quoted above, touts applicant’s
Serial No. 78154263
- 14 -
product as being an “ … herbal supplement that helps
maintain healthy nail structure.” Based on this record, we
agree with the Trademark Examining Attorney that “Nail Care”
is a generic term as applied to the identified goods. If a
prospective purchaser – a member of the general purchasing
public – were seeking to buy a nutritional supplement for
strengthening her nails, it would be reasonable for her to
refer to such a product as a “nail care” supplement. See In
re Central Sprinkler Co., 49 USPQ2d 1194 (TTAB 1998) [ATTIC
is generic because it would be understood by relevant public
as referring to a narrow category of automatic sprinklers
for fire protection of attics].
Having found that the quoted evidence suffices to
establish that the term “Nail Care,” when considered as a
whole and in connection with applicant’s identified goods,
is and would be understood by purchasers in its generic
sense as a type of nutritional supplement for the
maintenance and care of nails, we must turn to the question
of whether applicant has managed to rebut Trademark
Examining Attorney’s prima facie case. In re International
Business Machines Corp., 81 USPQ2d 1677 (TTAB 2006) [ESERVER
is generic for computer hardware and operating software that
Serial No. 78154263
- 15 -
allow network connectivity and administration and processing
of information].
Applicant argues that “consumers would understand the
term ‘NAIL CARE’ to refer to physical maintenance of a
person’s nails, not an oral nutritional supplement.”
(Applicant’s brief, p. 9). We are not convinced by
applicant’s arguments. The overall structure of more than a
dozen websites, as reflected in the hierarchies of their
respective pull-down menus, demonstrates that a person
looking for an oral nutritional supplement designed to help
maintain nail health would find just such a product under
the category of goods known as “Nail Care.”
Applicant also argues in its brief as follows:
All of the relevant documents supplied by the
Examiner refer to NAIL CARE as the physical
act of grooming or maintenance of a person’s
nails, except for the inclusion of the
Applicant’s actual product at Himalaya Herbal
Healthcare.

(Applicant’s appeal brief, p. 7). We disagree with this
characterization. As seen on pp. 6 – 10 of this opinion,
supra, the LEXIS/NEXIS entries and the Internet websites use
the term “Nail Care” repeatedly in the context of
nutritional supplements. Moreover, as seen on at least a
dozen websites, the term “Nail Care” clearly appears as a
category of goods that includes nutritional supplements –
Serial No. 78154263
- 16 -
not merely as keywords strategically buried in metatags for
searching purposes, as applicant argues.
Finally, another of applicant’s arguments is that, as
was the case in Merrill Lynch, supra, the instant record
contains a “mixed evidentiary record on the question of
genericness.” (Applicant’s brief, p. 6). However, in
Merrill Lynch the “mixed” record reflected the fact that a
substantial number of the excerpts from publications
comprising the overall evidence before the Board showed
recognition that the appellant, Merrill Lynch, was indeed
the source of the CASH MANAGEMENT ACCOUNT brokerage
services. That is clearly not the situation herein.
Hence, we find that applicant has introduced no
evidence that contradicts the conclusion that “nail care” is
a generic descriptor of the nature of applicant’s goods.
While it is clear that any doubt on the issue of
genericness should be resolved in applicant’s favor, we have
no such doubt in this case.
In conclusion, we find that the term NAIL CARE is
incapable of distinguishing applicant’s goods, and that it
therefore is not registrable on the Supplemental Register.
Serial No. 78154263
- 17 -
Decision: The refusal under Section 23 of the Act on
the ground that the subject matter of this application is
generic is hereby affirmed.