Enzymatic Therapy, LLC

Trademark Trial and Appeal Board

Sep 8, 2016

No. 86186571 (T.T.A.B. Sep. 8, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: September 8, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Enzymatic Therapy, LLC
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Serial No. 86186571
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Aaron J. Wong of Price Heneveld LLP,
for Enzymatic Therapy, LLC.
Alison F. Pollack, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
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Before Kuhlke, Mermelstein, and Shaw,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Enzymatic Therapy, LLC (“Applicant”) seeks registration on the Principal
Register of the mark

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for “dietary and nutritional supplements,” in International Class 5.1 The description
of the mark reads: “The mark consists of the wording ‘ENZYMATIC THERAPY’ with
a y-shaped stylized human figure with arms upraised representing the first letter ‘Y’
in ‘ENZYMATIC THERAPY.’” Applicant has disclaimed the word THERAPY and
claims the words “ENZYMATIC THERAPY” have acquired distinctiveness under
Section 2(f) based on more than 5 years of substantially exclusive and continuous use
in commerce. Applicant also claims ownership of the following three prior
registrations:
• Reg. No. 1760946, for the typed mark ENZYMATIC THERAPY (registered
under Section 2(f) with a disclaimer of ENZYMATIC), issued on March 30,
1993, claiming a date of first use in commerce of February 11, 1981, for “dietary
food supplements,” in International Class 5 (renewed);
• Reg. No. 3171940, for the mark (with a disclaimer of THERAPY),
issued on November 14, 2006, claiming a date of first use in commerce of April
5, 2005, for “Dietary and Nutritional Supplements,” in International Class 5
(Section 8 affidavit accepted); and
• Reg. No. 3171941, for the mark (with a disclaimer of THERAPY),
issued on November 14, 2006, claiming a date of first use in commerce of May
1, 2005, for “Dietary and Nutritional Supplements,” in International Class 5
(Section 8 affidavit accepted).
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), on the ground that
Applicant’s mark is deceptive. When the refusal was made final, Applicant appealed.
The case is fully briefed.

1 Application Serial No. 86186571 was filed on February 6, 2014, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1(b).
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Analysis
In accordance with Section 2(a) of the Trademark Act, registration must be
refused if a mark is deceptive of a feature or an ingredient of the identified goods. In
re Budge, 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988). The test for
deceptiveness is whether all three of the following criteria are met:
(1) The applied-for mark consists of or contains a term that misdescribes the
character, quality, function, composition, or use of the goods and/or services;
(2) Prospective purchasers are likely to believe that the misdescription actually
describes the goods and/or services; and
(3) The misdescription is likely to affect a significant portion of the relevant
consumers’ decision to purchase the goods and/or services.
In re Budge, 8 USPQ2d at 1260.
Moreover, because Section 2(a) is an absolute bar to the registration of deceptive
matter on either the Principal Register or the Supplemental Register, a claim that a
mark has acquired distinctiveness cannot obviate a Section 2(a) deceptiveness
refusal. See In re Charles S. Loeb Pipes, Inc., 190 USPQ 238, 241 (TTAB 1975); TMEP
§ 1203.02 (Apr. 2016). However, evidence of use and of recognition by consumers and
the trade can be considered in analyzing the first and second factors of the Budge
test; that is, such evidence may be considered in determining whether the mark
misdescribes the goods and whether prospective purchasers are likely to believe that
the misdescription actually describes the goods. In re Woolrich Woolen Mills Inc., 13
USPQ2d 1235 (1989) (holding WOOLRICH for clothing not made of wool found not to
be deceptive under Section 2(a), due to consumer and trade recognition of
WOOLRICH as a trademark as a result of applicant’s long and extensive use).
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Regarding the first Budge factor, it is the Examining Attorney’s position that
“Applicant’s mark includes the wording ‘ENZYMATIC,’ indicating that the goods
have or exhibit the following feature or characteristic: enzymes” whereas, as
Applicant admits, some of Applicant’s goods do not contain enzymes. Thus, the
Examining Attorney continues, “the term ‘ENZYMATIC’ misdescribes a character,
quality, and composition of the goods, namely, that the goods contain enzymes.”2
According to definitions introduced by the Examining Attorney, an “enzyme” is
defined as:
A substance produced by a living organism that acts as a
catalyst to bring about a specific biochemical reaction.
Most enzymes are proteins with large complex molecules
whose action depends on their particular molecular shape.
Some enzymes control reactions within cells and some,
such as the enzymes involved in digestion, outside them.3
The adjective form of enzyme, “enzymatic,” is defined as “of, relating to, or produced
by an enzyme.”4
The Examining Attorney introduced a number of articles explaining the role
enzymes play in digestion. For example, the article on the website WebMD explains
that the human pancreas releases “digestive enzymes, which are natural substances
needed by the body to break down and digest food.”5 Many of the articles encourage
enzyme supplements as an aid in digestion, claiming that the pancreas can “slow

2 Examining Attorney’s Br., pp. 7-8.
3 Oxforddictionaries.com, Office Action of September 8, 2015, pp. 2-4.
4 Merriam-webster.com, Office Action of September 8, 2015, pp. 5-8.
5 Office Action of February 26, 2015, p. 64.
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down as we age,”6 and that factors such as “stress, poor sleep, illness, antibiotic use,
smoking, alcohol abuse, and a diet rich in hard-to-digest processed, refined, and fatty
foods” can deplete the “supply of natural enzymes.”7 Enzyme supplements are
encouraged as a way to enhance digestion by providing enzymes “when the pancreas
cannot make or does not release enough digestive enzymes into the gut to digest the
food.”8 These web articles state that digestive enzymes include lactase for digesting
dairy products, alpha-galactosidase for digesting beans, proteases for digesting
proteins, amylase for digesting starches, and lipase for digesting fats.9 Moreover, at
least one website provided by the Examining Attorney claims that “probiotics” are a
type of microorganism that provide digestion benefits similar to those of enzyme
supplements: “Probiotics produce enzymes such as protease, lipase, and lactase to
further assist with protein and fat digestion as well as reduce problems associated
with lactose intolerance.”10
The Examining Attorney introduced excerpts from websites selling a number of
nutritional supplement products containing enzymes for use in supporting the

6 Office Action of February 26, 2015, p. 60.
7 Office Action of September 8, 2015, p. 56.
8 Office Action of February 26, 2015, p. 64.
9 Office Action of February 26, 2015, p. 61.
10 Enzymeessentials.com, Office Action of September 8, 2015, p. 80-86. We make no ruling on
the veracity of statements involving the efficacy of these supplements inasmuch as nearly all
of these website articles point out that such “[s]tatements have not been evaluated by the
Food and Drug Administration. Products not intended to diagnose, treat, cure, or prevent
any disease.” Id. Nevertheless, the websites do show how nutritional supplements are
marketed to prospective consumers and, therefore, what ingredients consumers might expect
to find in the products.
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digestive process. The amazon.com, vitaminshoppe.com, gnc.com, and walmart.com
websites list enzyme-containing supplements which claim to aid in digestion. The
supplements appear to contain individual enzymes or combinations of multiple
enzymes, depending on the customer’s perceived need, e.g., lactose intolerance, gas
from beans, gluten sensitivity, etc. Notably, however, these pages also list products
claiming to aid digestion which either contain probiotics or which do not appear to
contain enzymes. For example, the amazon.com website lists probiotic products
alongside enzyme supplements on its “Health & Personal Care : Vitamins & Dietary
Supplements : Supplements : Enzymes” page.11 Similarly, the vitaminshoppe.com
website lists “probiotic” capsules, “peppermint oil,” “charcoal,” a pH “Booster Kit,”
“mastic gum,” “tropical papaya,” and “herbal bitters” alongside enzyme supplements
in its “Digestion & Super Foods/Enzymes” product category.12 The walmart.com
website lists “probiotic” capsules, “magnesium citrate,” “multivitamins,” and “milk
thistle extract” alongside enzyme supplements in its “Health-Vitamins-Supplements-
Enzymes” product category.13
Applicant admits that the supplements sold under the mark include “supplements
that contain enzymes, as well as supplements that do not contain enzymes.”14
Inasmuch as the mark is used on a wide variety of supplements, Applicant argues,
inter alia, that

11 Office Action of February 26, 2015, pp. 30-34.
12 Office Action of February 26, 2015, pp. 35-56.
13 Office Action of September 8, 2015, pp. 50-54.
14 Applicant’s Br., p. 8.
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The word “enzymatic” suggests a biological, kinetic, and
therapeutic effect of Applicant’s product, and provides for
an overall commercial impression that speaks to the
consumer of a nutritional or health benefit. . . . This benefit
could also be in the form of enzyme‐free ingredients which
aid in natural processes of the consumer that are regulated
by naturally occurring enzymes.15
Applicant, citing Woolrich, also argues that “the developed trademark significance
demonstrated in the decades of use of Applicant’s [prior] registrations provides for
sufficient trademark significance to replace any descriptive or misdescriptive
significance that the term may have had when first adopted by Applicant.”16
Taken as a whole, the evidence of record shows several possible meanings of the
term ENZYMATIC when used in connection with dietary and nutritional
supplements. Although the Examining Attorney has shown that many nutritional
supplements do, in fact, contain enzymes, the record also shows that some products,
such as probiotics, do not contain enzymes but claim to produce enzymes to assist
with digestion. In addition, other products, such as the above-mentioned “peppermint
oil,” “charcoal,” “herbal bitters” “magnesium citrate,” “multivitamins,” etc., are sold
online under the category “enzymes” alongside enzyme supplements but do not
appear to contain enzymes. No explanation for this is given, but it may be that these
products aid enzyme-related processes or aid the body in increasing its own natural
production of enzymes. These uses of “enzyme” in connection with differing
supplement products suggest various meanings which are consistent with the

15 Applicant’s Br., p. 9.
16 Id. at 12.
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definition of ENZYMATIC, which includes merely “relating to . . . or produced by an
enzyme.”17 Thus, we find it likely that Applicant’s prospective customers would view
ENZYMATIC THERAPY supplements as not necessarily containing enzymes, but
possibly containing ingredients which aid enzyme-related processes or otherwise
assist the body in producing its own enzymes. Indeed, Applicant’s prior registrations
for ENZYMATIC THERAPY marks for nutritional supplements not containing
enzymes, suggest that consumers understand that Applicant’s supplements may not
contain enzymes. See Woolrich, 13 USPQ2d at 1238 (“[A]ny descriptive or
misdescriptive significance that the term may have had when first adopted has been
largely replaced by trademark significance as a result of applicant's long and
extensive use.”).
We find that there is not sufficient evidence to establish that use of ENZYMATIC
means that dietary and nutritional supplements must contain enzymes. Accordingly,
the term ENZYMATIC does not misdescribe the character, quality, function,
composition, or use of the goods, and, therefore, Applicant’s mark is not deceptive
when used in connection with the identified goods.
Decision: The refusal to register Applicant’s mark under Section 2(a) of the
Lanham Act is reversed.

17 Merriam-webster.com, Office Action of September 8, 2015, pp. 5-8.