88606855 (T.T.A.B. May. 27, 2021)

BFY LLC

Trademark Trial and Appeal BoardMay 27, 2021

88606855 (T.T.A.B. May. 27, 2021)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Hearing: May 18, 2021 Mailed: May 27, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re BFY LLC _____ Serial No. 88606855 _____ Erik M. Pelton, Julie S. Shursky, and Olivia M. Muller, of Erik M. Pelton & Associates PLLC, for BFY LLC. Barbara A. Gaynor, Trademark Examining Attorney, Law Office 115, Daniel Brody, Managing Attorney. _____ Before Cataldo, Kuczma and Lebow, Administrative Trademark Judges. Opinion by Lebow, Administrative Trademark Judge: Applicant, BFY LLC, applied to register the term MULTEEZ, in standard characters on the Principal Register, for “Homeopathic pharmaceuticals, namely, vitamins” in International Class 5 (“the Application”).1 The Trademark Examining Attorney refused registration under Section 2(e)(1) of 1 Application Serial No. 88606855 was filed on September 6, 2019 based on Applicant’s allegation of an intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 88606855 - 2 - the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that MULTEEZ merely describes the identified goods. When the refusal was made final, Applicant filed an appeal to this Board and requested reconsideration of the refusal, which was denied. The appeal is fully briefed and an oral hearing was held on May 18, 2021. We affirm the refusal. I. Applicable Law Section 2(e)(1) of the Trademark Act prohibits registration on the Principal Register of “a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive … of them,” unless the mark has been shown to have acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). A mark is “merely descriptive” within the meaning of Section 2(e)(1) “if it immediately conveys information concerning a feature, quality, or characteristic of the goods … for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). Whether a mark is merely descriptive is “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 Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting Bayer, 82 USPQ2d at 1831), and “not in the abstract or on the basis of guesswork.” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513 (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). We ask “whether someone who knows Serial No. 88606855 - 3 - what the goods … are will understand the mark to convey information about them.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018) (quoting DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (internal quotation omitted)). A mark is suggestive, and not merely descriptive, if it requires imagination, thought, and perception on the part of someone who knows what the goods are to reach a conclusion about their nature from the mark. See, e.g., Fat Boys, 118 USPQ2d at 1515. “Evidence of the public’s understanding of [a] term . . . may be obtained from any competent source, such as purchaser testimony, consumer surveys, listings in dictionaries, trade journals, newspapers[,] and other publications.” Real Foods, 128 USPQ2d at 1374 (quoting Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1046 (Fed. Cir. 2018)). “These sources may include [w]ebsites, publications and use ‘in labels, packages, or in advertising material directed to the goods.’” N.C. Lottery, 123 USPQ2d at 1710 (quoting Abcor Dev., 200 USPQ at 218). II. Evidence and Argument The Examining Attorney asserts that, “[a]bsent any limitations in the identification of goods, it is presumed that applicant’s ‘vitamins’ include ‘multivitamins.’”2 Additionally, when asked during prosecution whether its vitamins will include multivitamins,3 Applicant objected to the question “as requesting 2 8 TTABVUE 8 (Examining Attorney’s Brief). 3 December 10, 2019 Office Action, TSDR 3. Serial No. 88606855 - 4 - information that is contained in Applicant’s amended identification of goods.”4 Further, when asked to provide information about Applicant’s goods or, if unavailable, to provide “similar documentation for goods of the same type, explaining how its own product will differ,”5 Applicant provided “documentation regarding similar children’s vitamin products, L’il Critters and Flintstones vitamins,” and explained that “[t]he vitamins offered under Applicant’s MULTEEZ mark will contain similar nutritional ingredients”6 Excerpts from the websites of L’il Critters and Flintstones submitted by Applicant show those vitamins to be multivitamins: 4 April 15, 2020 Response to Office Action, TSDR 10. 5 December 10, 2019 Office Action, TSDR 3. 6 April 15, 2020 Response to Office Action, TSDR 9-10, Serial No. 88606855 - 5 - Applicant does not dispute that its vitamins include multivitamins, which we find to be encompassed by Applicant’s identification of goods. The Examining Attorney further contends that “[w]hen used on or in connection with vitamins, ‘multis’ refers to ‘multivitamins.” In support, she provided excerpts from a number of websites showing the term “multis” used synonymously with “multivitamins” in the field of vitamins, including (emphasis added): o Healthline: “Multivitamins are also called multiminerals, multis , multiples, or simply vitamins.”7 o National Institutes of Health (NIH): “Multivitamin/mineral (MVM) supplements contain a combination of vitamins and minerals, and sometimes other ingredients as well. They go by many names, including multis and multiples or simply vitamins.”8 o MegaFood: “Our full line of premium multivitamins pair essential vitamins and minerals with real food from trusted farm partners, because we believe our bodies recognize real food. We offer supplements 7 December 10, 2019 Office Action, TSDR 6-7 (healthline.com). 8 Id. at 28 (ods.od.nih.gov). Serial No. 88606855 - 6 - for the whole family, whether you’re looking for convenience, potency or multis that are age and gender-specific.”9 “Why calcium and magnesium aren’t in our multis[.] … [A] multivitamin is a great way to fill the gaps in your diet and ensure you’re getting all the necessary vitamins and minerals. You may wonder, then, why we opt to omit calcium and magnesium from our MegaFood multis - aren’t they just as important as vitamin C and D? … [W]e’ve chosen to omit calcium and magnesium from our multis - it’s as simple as that. Doing so allows us to focus on delivering a range of nutrients together with real foods, and to give them the best chance for absorption possible. This, in turn, allows our multis to best nurture your nature.”10 o Nature Made: ““Nature Made multivitamins help fill key nutrient gaps from your diet with essential vitamins and minerals, and they are carefully made to our high-quality standards to help you get the most out of your multivitamin. For example, our Multi Complete provides daily nutritional support for both men and women and has clinically shown absorption into the body.”11 9 Id. at 14 (megafood.com). 10 May 8, 2020 Final Office Action, TSDR 11-13 (megafood.com/blog). 11 Id. at 24 (naturemade.com). Serial No. 88606855 - 7 - o GNC: “How to Choose The Best Multivitamin. If your snacking tends to lean more towards cookies than carrots (hey, no one’s perfect!), you can still make sure you’re getting essential nutrition with a multi.”12 o Athena Club: ““The multivitamin, our way. We scoured the world to sustainably source the most bioavailable, clean, and highest-quality ingredients. Daily Multi helps you build a long-term health foundation and fill the gaps in your diet.”13 o Puritan’s Pride: ““Why Take Puritan’s Pride Organic Men’s Multi[?] As part of our first fully organic line, Puritan’s Pride offers a multivitamin formulated just for men with 12 key nutrients to support your daily wellness needs.”14 12 Id. at 36-37 (gnc.com). 13 May 8, 2020, Final Office Action, TSDR 6 (athenaclub.com). 14 Id. at 7-9 (puritan.com/multivitamins). Serial No. 88606855 - 8 - o Amazon listing: Carlson “Mini ● Multi” for mini multivitamins:15 o Poliquin Group: “How To Choose A Multi? Because multivitamins combine so many nutrients into one, quality is often compromised…It’s also important to keep an eye out for multis that have high levels of preformed vitamin A … because these can be toxic at higher levels.”16 The foregoing evidence establishes, and Applicant “agrees[,] that the word ‘multis’ is short for multivitamins.17 The Examining Attorney argues, “[t]he fact that applicant’s mark is spelled ‘MULTEEZ’ rather than ‘MULTIS’ is insufficient to overcome the descriptiveness refusal.” Citing In re Calphalon Corp., 122 USPQ2d 1153, 1163 (TTAB 2017), for the principle that “[a] novel spelling or an intentional misspelling that is the phonetic equivalent of a merely descriptive word or term is also merely descriptive if purchasers would perceive the different spelling as the equivalent of the descriptive word or term.”18 She concludes: “In this case, the evidence shows that consumers 15 Id. at 14 (amazon.com). 16 Id. at 16-17 (poliquinstore.com). 17 10 TTABVUE 5 (Applicant’s Reply Brief). 18 8 TTABVUE 8 (Examining Attorney’s Brief). Serial No. 88606855 - 9 - would likely view ‘MULTEEZ’ as the intentional misspelling of the phonetically equivalent descriptive wording ‘MULTIS.”19 A. Applicant’s Double Entendre Argument Applicant acknowledges that MULTEEZ “could be interpreted as ‘multis’ or ‘multies’ as an abbreviation for multivitamins,” but contends the term is not merely descriptive because it is a double entendre. “For trademark purposes, a ‘double entendre’ is an expression that has a double connotation or significance as applied to the goods or services.” TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1213.05(c), cited in In re Calphalon Corp., 122 USPQ2d at 1163. “The multiple interpretations that make an expression a ‘double entendre’ must be associations that the public would make fairly readily, and must be readily apparent from the mark itself.” In re Calphalon, 122 USPQ2d at 1163-64. See also In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1105 (TTAB 2018); TMEP § 1213.05(c) (Oct. 2018). Applicant lays the groundwork for its double entendre argument by claiming that “[t]he issue in this case is whether the relevant public—parents or guardians who buy vitamins for children—would tend to perceive MULTEEZ as merely a misspelling of ‘multies’ or ‘multis,’ or as more than merely a misspelling, conveying a different, suggestive commercial impression.”20 In particular, By utilizing the ‘-EEZ’ suffix in connection with the identified goods, Applicant’s MULTEEZ mark playfully connotes that its goods are easy to ingest or entices children to ingest the vitamins. In addition to the interpretation of the suffix ‘-EEZ’ as ‘-IES’ or ‘-IS,’ ‘-EEZ’ also sounds like the word “EASE.” The term “EASE” is defined as (1) the “absence of 19 Id. 20 6 TTABVUE 11 (Applicant’s Brief). Serial No. 88606855 - 10 - difficult or effort,” (2) to “make (something unpleasant, painful, or intense) less serious or severe,” or (3) “worry-free.” Taking these meanings, the term “EASE” creates multiple unique and distinct commercial impressions when used in connection with vitamins for children’s health. Likewise, the “-EEZ” suffix in Applicant’s mark suggests the following meanings: • vitamins that children will easily ingest physically (that they are easy to swallow or chew); • vitamins that children will ingest without a fight (taking them is attractive to the child); • vitamins that potentially have a calming effect on a child; or • a worry-free option for parents looking to improve the overall health of their children.21 Applicant concludes: “[N]one of the above-mentioned definitions and interpretations of ‘EASE” describe the purpose or function of Applicant’s medicated candies with immediate specificity. Applicant’s MULTEEZ mark, therefore, conveys two different meanings; as a misspelling of the word “multis” or “multies,” and as alluding to the “EASE” of ingestion and enjoyment of the vitamins.”22 According to Applicant, “[t]here is ample evidence in the record to demonstrate that consumers would interpret the suffix “-EEZ” as “EASE” when looking at Applicant’s mark in connection with children’s vitamins….”23 In particular, Applicant highlights two articles cited by the Examining Attorney that purportedly make it “easy to see that there are multiple aspects of choosing and taking vitamins, 21 Id. (internal citations omitted); dictionary definitions from the April 15, Response to Office Action, TSDR 31-33. 22 6 TTABVUE 11-12 (Applicant’s Brief). 23 10 TTABVUE 8 (Applicant’s Reply Brief). Serial No. 88606855 - 11 - especially vitamins for children, that concern buyers.”24 The first, from MegaFood, as previously noted above, states: “We offer supplements for the whole family, whether you’re looking for convenience, potency or multis that are age and gender specific.”25 The second, from Nature Made, states: “Specially formulated with age, gender and life stage in mind, Nature Made multivitamins are made for you. From delicious Adult Gummies to fast-melting Vitafelts, specialty packs and a variety of other traditional multivitamin options, Nature Made vitamins are catered to your unique needs and preferences.”26 Applicant also points to the Flintstones vitamins webpage it provided,27 which states: “Today’s kids (and parents) demand more. That’s why we provide information so you know what’s in your multivitamin and what’s not.”28 Applicant’s arguments are unavailing. First, they begin with a false premise: that the identification of goods is limited to children’s vitamins; thus parents or guardians of children would supposedly understand Applicant’s purported meanings. While Applicant may limit its actual vitamins to children’s vitamins, the identification of goods in the Application is not so limited; it covers all vitamins, not just vitamins for children. Hence, the relevant public for Applicant’s identified “vitamins” includes all purchasers of vitamins, and is not restricted to purchasers of vitamins for children. Second, as noted above, “the multiple interpretations that make an expression a 24 Id. 25 December 10, 2019 Office Action, TSDR 14 (megafoods.com). 26 Id. at 24 (naturemade.com). 27 10 TTABVUE 8 (Applicant’s Reply Brief). 28 April 15, 2020 Response to Office Action, TSDR 24 (flinstonesvitamins.com). Serial No. 88606855 - 12 - ‘double entendre’ must be associations that the public would make fairly readily, and must be readily apparent from the mark itself.” In re Calphalon Corp., 122 USPQ2d at 1162. The playful connotations Applicant ascribes to the term MULTEEZ—that it suggests to consumers that the vitamins are easy to ingest, entices children to take them without a fight, has a calming effect, or provides a worry-free option to parents, are not readily apparent from the mark itself. Contrary to Applicant’s contentions, none of the websites provided either by the Examining Attorney or Applicant imply, much less demonstrate, that consumers would interpret the suffix “-EEZ” as “EASE” when looking at Applicant’s mark. “Attorney argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)). Applicant also submitted copies of 55 third-party registrations of marks that used “EEZ” as a suffix or, as a separate term, on the Principle Register, without a disclaimer of that term or a claim of acquired distinctiveness.29 Applicant argues this “is at least significant evidence that consumers will interpret the suffix ‘-EEZ’ to mean ‘EASE’ (even in cases where it is not set apart from the beginning of the word with a hyphen), and/or that there is ample use of the suffix ‘-EEZ’ in the market to 29 April 15, 2020 Response to Office Action, TSDR 62-124. Four additional third-party registrations (Reg. Nos. 4600924, 1363441, 4519358, and 4562907) cited by Applicant have been cancelled. Id. at 74, 87, 93-94. “Dead’ or cancelled registrations have no probative value at all.” In re Information Builders Inc., 2020 USPQ2d 10444, *19 n. 19 (quoting In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261, 1264 (TTAB 2011)). A further registration for the mark PASTREEZ and Design (Reg. No. 5936626) includes a disclaimer of “PASTRIES,” Id. at 111, and like MULTEEZ, appears to be a mere misspelling of the identified goods. Serial No. 88606855 - 13 - connote something other than the phonetic equivalent of a particular term.”30 Third-party registrations, standing alone, cannot demonstrate market use of a term. Cf. In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016) (“[T]hird-party registrations standing alone, are not evidence that the registered marks are in use on a commercial scale, let alone that consumers have become so accustomed to seeing them in the marketplace that they have learned to distinguish among them by minor differences.”). They can, however, “show the sense in which … a mark is used in ordinary parlance.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015), quoting 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:90 (4th ed. 2016). That is, “they may be given some weight to show the meaning of a mark in the same way that dictionaries are used.” Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976). Some of the third-party registrations cited by Applicant are probative to show that the term “EEZ” is sometimes used as an intentional misspelling of the word “EASE,” for example: • FEVER-EEZ for “non-medicated disposable wipes … used to produce a cooling effect in relief of body heat”- allows for easing of one’s fever;31 • SCRATCH-EEZ for “ticket scratchers, namely, hand tools for scratching the film off lottery tickets”;32 • SOCK-EEZ for “non-electric hand operated apparatus for use in 30 6 TTABVUE 18 (Applicant’s Brief). 31 April 15, 2020 Response to Office Action, TSDR 67. 32 Id. at 71 (Reg. No. 4713116). Serial No. 88606855 - 14 - removing a sock from a person’s foot” – allows for ease of removal of a sock;33 • HOZEEZ for “apparatus … to prevent watering hoses, air hoses … from sliding under tires … and preventing hoses … from being damaged, crimped or trapped” – allows for easy use of a hose without damage;34 • FIDGETEEZ for “therapeutic fidget toys and bands for kids with OCD, ADD, ADHD and Autism to help them maintain focus in classrooms” to help ease fidgeting and allow one to focus in the classroom;35 • WINDEEZ for “metal, removable magnetic garment weights for preventing clothing from blowing in the wind” – to ease the impact of wind on clothing;36 and • SNOREEZ for “therapeutic mouthpieces for the prevention of snoring” – to ease one’s snoring.37 In other words, we can see from the context of the goods identified in those registrations that “EEZ” is an intentional misspelling of the word “ease,” and is used in those examples to suggest that one may ease some problem or ailment by using the goods provided under the marks. However, the same connotation of “EEZ” as “ease” is not apparent from all of the marks in the third-party registrations cited by Applicant and, for some of them, use of the “-EEZ” suffix appears simply as a misspelling of the pluralized term in the mark; to the extent some other meaning is intended, it is not readily apparent. For example: 33 Id. at 81 (Reg. No. 4159041). 34 Id. at 104 (Reg. No. 5349334). 35 Id. at 103 (Reg. No. 5290569). 36 Id. at 97 (Reg. No. 5541227). 37 Id. at 100 (Reg. No. 4932578). Serial No. 88606855 - 15 - • WHEEL EEZ for “tires”;38 • FOOD .EEZ for “fresh meat”;39 • CHATEEZ for “printed matter, namely, post cards, greeting cards, flashcards, pictures, posters, pictorial prints, and stationery”;40 • SPARK-EEZ for “fireworks, namely, sparklers”;41 • FLIPEEZ for “headwear; hats; caps”;42 • CLOTH-EEZ for “cloth diapers”;43 • FUNEEZ for “gift boxes; ink erasers; ink stamps; metallic paper party decorations; party favor gift boxes sold empty; pencil sharpeners; rubber erasers; rubber stamps; novelty plush toys for parties; party favors in the nature of small toys; play balls; stress relief exercise balls; toy putty; toy whistles”;44 • SQWEEGEEZ (a misspelling of squeegees) for “providing self-service car washing facilities”;45 • FRUITEEZ! and Design for “fruit jelly candy”;46 and • SUPER SOAPEEZ for “toys for blowing bubbles in the nature of plastic character toys; toy action figures; toy action figures for blowing bubbles”;47 and • SPORTEEZ for “headbands”.48 38 Id. at 76 (Reg. No. 4806497). 39 Id. at 77 (Reg. No. 4933576). 40 Id. at 84 (Reg. No. 5276084). 41 Id. at 85 (Reg. No. 5897843). 42 Id. at 70 (Reg. No. 4464030). 43 Id. at 92 (Reg. No. 2431747). 44 Id. at 109 (Reg. No. 5903065). 45 Id. at 108 (Reg. No. 5842242). 46 Id. at 106 (Reg. No. 5589252). 47 Id. at 95 (Reg. No. 5091496). 48 Id. at 98 (Reg. No. 5135254). Serial No. 88606855 - 16 - Unlike the first set of examples, there is no context provided by the identifications of goods or services in these third-party registrations and others cited by Applicant that lend support to Applicant’s contention that use of the suffix “-EEZ” in such marks connotes “ease.” Applicant provided an additional set of third-party registrations on the Principal Register for marks having the suffix “-EEZ” along with “another” purportedly “descriptive term and/or prefix” for goods in Class 5, including: • HEM EEZ for “dietary supplements”;49 • PERSPER-EEZ and Design for “breast pads;50 • ADD EEZE and Design for, inter alia, “dietary and nutritional supplements”;51 • TODDLEEZ for, inter alia, “adult diapers; baby diapers; breast-nursing pads; disposable swim diapers for children and infants; disposable training pants”;52 • COLD-EEZE for, inter alia, medications “for reducing the duration and severity of the common cold”;53 • REMODEEZ for, inter alia, “all purpose disinfecting and deodorizing preparations”;54 • CHOLEEZE for “dietary supplements for cholesterol management”;55 49 November 3, 2020 Request for Reconsideration, TSDR 17 (Reg. No. 3732507). 50 Id. at 18 (Reg. No. 3867242). 51 Id. at 19 (Reg. No. 5121091). 52 Id. at 20 (Reg. No. 5721161). 53 Id. at 21 (Reg. No. 5839399). 54 Id. at 22 (Reg. No. 4646655). 55 Id. at 24 (Reg. No. 4813735). Serial No. 88606855 - 17 - • HERP - EEZE for “dietary supplements”;56 • ENEMEEZ for “enema preparations”;57 • MELTEEZ for “pharmaceutical preparations for the treatment of cold symptoms”;58 • LACTEEZE for “lactase enzyme dietary supplements”;59 and • STRESEEZ for dietary supplement for treating scours in swine.60 Several of these marks, such as HEM EEZ for dietary supplements, PERSPER- EEZ and Design for breast pads, TODDLEEZ for diapers and nursing pads, ENEMEEZ for enema preparations, LACTEEZE for lactase enzyme dietary supplements, and STRESEEZ for dietary supplements for treating scours in swine, do not have, as Applicant contends, “another” purportedly descriptive term. Rather, they include a term that may be suggestive of the identified goods based on their respective identifications of goods. Additionally, REMODEEZ for disinfecting and deodorizing preparation does not appear to be suggestive of anything aside from “remedies.” Additionally, use of suffix “-EEZE” in the marks ADD EEZE and Design, COLD- EEZE, HERP – EEZE, LACTEEZE, does not equate to use of the suffix “-EEZ” as used in the other marks. Further, to the extent any of the third-party marks in these registrations are descriptive, that does not mean they registered because they are 56 Id. at 25 (Reg. No. 2902590). 57 Id. at 26 (Reg. No. 2716233). 58 Id. at 27 (Reg. No. 3620397). 59 Id. at 28 (Reg. No. 3866281). 60 Id. at 29 (Reg. No. 3893673). Serial No. 88606855 - 18 - double entendres, nor do they show that MULTEEZ is a double entendre. Moreover, with the exception of the third-party registration for the mark HERP – EEZE (which uses the suffix “’-EEZE, not “-EEZ”) that is phonetically identical to the suggested malady herpes to which the goods may be directed, none of the third-party registrations are for marks that describe the actual name of the goods. What carries the day in our analysis here is the established fact of record that “MULTIS,” pronounced similar to MULTEEZ, definitively describes and is synonymous with the multivitamins included within Applicant’s vitamins. Applicant attempts to analogize the facts in this case to those present in In re Grand Metropolitan Foodservice, Inc., 30 USPQ2d 1974, 1975 (TTAB 1994) (reversing genericness and descriptiveness refusals for the mark for baked mini muffins where the applicant had disclaimed the correctly-spelled term “muffins,” given that the mark “does project a dual meaning or suggestiveness—that of muffins and that of the ‘fun’ aspect of applicant’s food product”) and In re Tea and Sympathy, Inc., 88 USPQ2d 1062 (TTAB 2008) (reversing descriptiveness refusal of the mark THE FARMACY for heath and pharmacy-related services focused on natural herbs and organic products, finding the mark more than a mere misspelling of “the pharmacy” and was “inventive and just clever enough, being an obvious play on ‘the pharmacy’ and ‘farm’ so that the meaning or commercial impression of applicant’s mark will be more than simply ‘the pharmacy’”). Applicant’s analogies are not apt. In both of those double-entendre cases, the meanings relied on by the applicant were recognizable adjectives or common nouns Serial No. 88606855 - 19 - related to the nature of the goods or services. In In re Grand Metropolitan Foodservice, “fun” is an ordinary adjective, was not a phonetic equivalent of “muffins,” the “fun” portion of the mark was introduced with a capital letter, and the applicant emphasized in its promotion of the goods the fun aspect of its mini-muffins. In re Grand Metropolitan Foodservices, 30 USPQ2d at 1974-75. By contrast, MULTEEZ in the Application is a standard character mark, and nothing in the term is emphasized in such a manner that it would appear anything more than an intentional misspelling of MULTIS. Similarly, in Tea and Sympathy, “farm” is a common noun, and the applicant’s specimens and advertisements showed promotion of its connection to “Small, Organic Family Farms,” helping consumers readily recognize the “farm-fresh characteristics” of the goods featured in the applicant’s services. In re Tea and Sympathy, 88 USPQ2d at 1062-63. By contrast, the evidence shows that “multis” is synonymous with “multiviatmins;” MULTEEZ is a misspelling of term with a known meaning; and Applicant has not shown that it emphasizes the supposed double entendre. The record includes no promotional materials that point to or emphasize the suffix -EEZ as suggesting an “ease” connotation in connection with the goods. Applicant puts the final nail into the double entendre coffin with its next argument: [T]he suffix ‘-EEZ’ as interpreted as ‘EASE’ is incongruous in Applicant’s mark. It is grammatically illogical (and physically impossible) to ‘EASE’ one’s multivitamins. The goods themselves are not sentient, and thus a consumer must make mental leaps to determine what exactly the products offered under Applicant’s MULTEEZ mark are ‘easing.’ It may be possible to ‘EASE’ the process of taking the vitamin, ‘EASE’ health Serial No. 88606855 - 20 - deficiencies caused by lack of vitamins, or ‘EASE’ the mind of parents whose children take the vitamins, but ‘-EEZ’ says nothing of the goods themselves. Consequently, the double meaning of the mark MULTEEZ creates a suggestive significance and separate and distinct commercial impression apart from merely a misspelling of “multis,” such that any descriptive significance of the mark is lost. Again, “[t]he multiple interpretations that make an expression a ‘double entendre’ must be associations that the public would make fairly readily, and must be readily apparent from the mark itself.” In re Calphalon, 122 USPQ2d at 1163-64. Additionally, the question is not whether someone presented only with the term MULTEEZ could guess that they include multis, but rather whether someone who knows that the goods are vitamins will understand that MULTEEZ conveys information about them, specifically, that they include multivitamins. DuoProSS Meditech v. Inviro Med. Devices, 103 USPQ2d at 1757 (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)). Applicant’s concession that consumers would need to make mental leaps to figure out why MULTEEZ refers to easing something related to the vitamins, rather than simply perceiving it as an intentional misspelling of MULTIS, underscores the fact that MULTEEZ is not a double entendre. B. Applicant’s “Family of Marks” Argument Applicant argues that MULTEEZ is “part of a portfolio of marks” including MOMEEZ CHOICE, LOLEEZ and TUMEEZ, “that encompass the ‘-EEZ’ suffix as a branding strategy to communicate that its products are designed to help parents keep Serial No. 88606855 - 21 - health and life simple.”61 In particular, “Applicant uses the ‘-EEZ’ suffix as a signature in its branding to convey its message of easing the difficulty of dealing [sic] and nursing a sick child. … Applicant has branded itself as a manufacturer of medicines for kids to provide parents and guardians with a fun, delicious and effective way to make everyone’s sick day a little eezier.”62 The family of marks doctrine is applicable in an inter partes proceeding based on likelihood of confusion where a plaintiff—who uses a plurality of marks with a common prefix, suffix or syllable—has an opportunity to establish that it owns a “family” of marks that all have a common element, and that the defendant’s mark is confusingly similar to the marks in that “family.” See e.g. Black & Decker Corp. v. Emerson Electric Co., 84 USPQ2d 1482, 1486 (TTAB 2007). The family of marks doctrine is generally not applicable in ex parte proceedings. See e.g. In re Cynosure, Inc. 90 USPQ2d 1644 (TTAB 2009) (“We reject applicant’s family of marks argument. In an ex parte appeal, the focus of the likelihood-of- confusion analysis must be the mark applicant seeks to register, not other marks applicant may have used or registered. In other words, a family-of-marks argument is not available to an applicant seeking to overcome a likelihood-of-confusion refusal.”). A limited exception exists where an applicant in an ex parte proceeding seeks to prove acquired distinctiveness (or secondary meaning) of a descriptive term. In that limited circumstance, an applicant may present evidence regarding its 61 6 TTABVUE 21 (Applicant’s Brief) (internal quotations omitted). 62 Id. Serial No. 88606855 - 22 - ownership of a family of marks to support a claim acquired distinctiveness (or secondary meaning) in a new “member” of its family. Applicant has not asserted a claim that MULTEEZ has acquired distinctiveness in this case. The family of marks doctrine is therefore inapplicable.63 III. Conclusion In sum, we find that the term MULTEEZ merely describes Applicant’s “homeopathic pharmaceuticals, namely, vitamins,” including multivitamins. Decision: The refusal is affirmed. 63 Even if the family of marks doctrine was applicable, the record does not establish that there is in fact a family of marks as claimed. There is no evidence that Applicant’s other marks are advertised or promoted in a manner calculated to impress their “family” status on the relevant purchasing public. “[S]uffice to say that the foundation for its invocation has not been laid. A family of products is not the same thing as a family of marks, which requires a showing that the marks have been advertised or promoted to the public sufficiently to create an awareness that a family of marks characterized by a distinguishing element exists.” La Maur, Inc. v. The Bagwells Enters., Inc., 199 USPQ 601, 606 (TTAB 1978).