MOC Products Company, Inc.

Trademark Trial and Appeal Board

Aug 19, 2020

88007453 (T.T.A.B. Aug. 19, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 19, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re MOC Products Company, Inc.
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Serial No. 88007453
_____

Gary M. Anderson and Michael J. Moffatt of Fulwider Patton LLP,
for MOC Products Company, Inc.

Kim Moninghoff, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.
_____

Before Kuczma, Adlin, and Lynch
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:
I. Background and Evidentiary Objections
MOC Products Company, Inc. (“Applicant”) seeks to register on the Supplemental
Register the mark NZYME in standard characters for “carpet and upholstery cleaner”
in International Class 3 and “carpet and upholstery deodorizer” in International
Class 5.1 The Examining Attorney has refused registration of the mark as generic

1 Application Serial No. 88007453 was filed June 20, 2018, based on an allegation of use of in
commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). Applicant amended
the application on January 17, 2019 to seek registration on the Supplemental Register.
Serial No. 88007453
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under Sections 23(c) and 45, 15 U.S.C. §§ 1091(c) and 1127, and therefore incapable
of distinguishing the identified goods. When the Examining Attorney made the
genericness refusal final, Applicant requested reconsideration and appealed. The
Examining Attorney maintained the refusal, the appeal resumed, and the case has
been briefed.2
Applicant attached numerous exhibits to its Appeal Brief and seeks to rely on
them as evidence.3 With the exception of Exhibit 1, which is duplicative of Applicant’s
previously submitted specimen of use, the Examining Attorney objects to the exhibits
as untimely new evidence. We sustain the objection. Trademark Rule 2.142(d)
provides that the record should be complete before an appeal is filed. 37 C.F.R.
§ 2.142(d). We therefore do not consider Applicant’s new evidence, which should have
been submitted during prosecution. See TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (TBMP) §§ 1203.02(e), 1207.01 (2020); TRADEMARK MANUAL
OF EXAMINING PROCEDURE (TMEP) § 710.01(c) (Oct. 2018). Applicant contends that
because its new exhibits support arguments it made during prosecution, the
Examining Attorney has not been prejudiced. Applicant’s arguments in this regard
do not excuse the untimeliness of the evidence, to which the Examining Attorney has
not had an adequate opportunity to respond.

2 Applicant’s Reply Brief is single-spaced and thus fails to comply with Trademark Rule
2.126(a)(1), 37 C.F.R. § 2.126(a)(1). However, it appears that even if properly line-spaced, it
would fall within the page limit, and we have exercised our discretion to consider it regardless
of the improper formatting.
3 7 TTABVUE 19-27.
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The Examining Attorney also objects to Applicant’s assertion (and citation) in its
Brief that “on www.amazon.com, one can purchase ‘enzyme products’ for aiding
digestion (see Exhibit 4 to Request for Reconsideration After Final Action).”4 As the
Examining Attorney correctly notes, contrary to Applicant’s citation to the record,
neither Exhibit 4 of Applicant’s Request for Reconsideration, nor any of the other
exhibits, consists of an amazon.com page. We give no consideration to evidence not in
the record, and of course, “[a]ttorney 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)).
II. Genericness
A. Legal Background
“A generic term ‘is the common descriptive name of a class of goods or services.’
[citation omitted]. A generic mark, being the ‘ultimate in descriptiveness,’ cannot
acquire distinctiveness.” Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127
USPQ2d 1041, 1045 (Fed. Cir. 2018) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of
Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986)); see also USPTO v.
Booking.com B.V., 140 S. Ct. 2298, 207 L. Ed. 2d 738, 2020 USPQ2d 10729, *1 (2020).
Whether a proposed mark is generic rests on its primary significance to the relevant
public. In re Am. Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999);
Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991).
Making this determination “involves a two-step inquiry: First, what is the genus of

4 7 TTABVUE 12 (Applicant’s Brief).
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goods or services at issue? Second, is the term sought to be registered … understood
by the relevant public primarily to refer to that genus of goods or services?” Marvin
Ginn, 228 USPQ at 530; see also Royal Crown, 127 USPQ2d at 1046. A term also can
be considered generic if the public “understands the term to refer to a key aspect of
that genus,” or part of the genus, “even if the public does not understand the term to
refer to the broad genus as a whole.” In re Cordua Rests., Inc., 823 F.3d 594, 118
USPQ2d 1632, 1637-38 (Fed. Cir. 2016). The relevant public is the purchasing or
consuming public for the identified goods. Magic Wand, 19 USPQ2d at 1553.
The Examining Attorney must establish that a proposed mark is generic. In re
Hotels.com, L.P., 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009); In re Merrill
Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir.
1987). “Evidence of the public’s understanding of the term may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers and other publications.” Merrill Lynch, 4
USPQ2d at 1143; see also Cordua Rests., 118 USPQ2d at 1634. In some cases,
dictionary definitions and an applicant’s own description of its goods may suffice to
show genericness. In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112
(Fed. Cir. 1987); see also In re Am. Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832,
1836 (Fed. Cir. 1999).
B. Genus
Because the identification of goods in an application defines the scope of rights
that will be accorded the owner of any resulting registration under Section 7(b) of the
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Trademark Act, 15 U.S.C. § 1057(b), generally “a proper genericness inquiry focuses
on the description of [goods] set forth in the [application or] certificate of registration.”
Cordua Rests., 118 USPQ2d at 1636 (quoting Magic Wand, 19 USPQ2d at 1552). In
this case the identification appropriately expresses the genus of goods at issue. Thus,
the ultimate inquiry is whether the relevant public understands NZYME to refer to
carpet and upholstery deodorizer and cleaner, or a subgenus or key aspect thereof.5
C. Public Understanding
The Examining Attorney contends that the proposed mark is a minor misspelling
and phonetic equivalent of “enzyme,” which names the subgenus of “enzyme cleaners”
and “enzyme deodorizers” for carpet and upholstery. An enzyme is “[a]ny of numerous
compounds that are produced by living organisms and function as biochemical
catalysts. Some enzymes are simple proteins, and others consist of a protein linked
to one or more nonprotein groups.”6
Applicant counters that although its proposed mark may be descriptive, it is not
generic. As a threshold matter, Applicant does not argue in either its initial Brief or
Reply Brief that the minor misspelling of “enzyme” – NZYME – renders the proposed
mark registrable. In fact, Applicant apparently concedes that the relevant public
would understand these terms to be interchangeable. For example, Applicant states

5 Applicant argues in its Brief that the Examining Attorney “implicitly” narrowed the genus
of goods to enzyme-based carpet and upholstery cleaners and deodorizers, rather than
considering the genus to be carpet and upholstery cleaners and deodorizers generally. 7
TTABVUE 9 (Applicant’s Brief). However, as noted above, a genericness refusal applies if the
mark names even a subgenus, and we therefore are not persuaded by Applicant’s argument.
6 October 17, 2018 Office Action at 6 (American Heritage Dictionary).
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that “while ‘enzyme’ or ‘nzyme’ may be descriptive of cleaners and deodorizers, the
term is not generic.”7 As the Examining Attorney stated in her Brief:
A novel spelling or an intentional misspelling that is the
phonetic equivalent of a generic term is also generic if
purchasers would perceive the different spelling as the
equivalent of the generic term. See Nupla Corp. v. IXL Mfg.
Co., 114 F.3d 191, 196, 42 USPQ2d 1711, 1716 (Fed. Cir.
1997) (holding CUSH-N-GRIP generic for cushioned tool
handles); Micro Motion Inc. v. Danfoss A/S, 49 USPQ2d
1628, 1631 (TTAB 1998) (holding MASSFLO generic for
mass flowmeters); see also In re ING Direct Bancorp, 100
USPQ2d 1681, 1690 (TTAB 2011) (holding
PERSON2PERSON PAYMENT generic for direct
electronic funds transfers including electronic payment
services between individuals); TMEP § 1209.03(j).8
Applicant’s specimen refers to its goods as a “bio-enzymatic cleaner,” and
Applicant’s website states that the product “[c]ontains Natural enzymes that
breakdown [sic] and digest organic odors and stains.”9 See In re Reed Elsevier Props.,
482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007) (Appropriate to consider the
applicant’s website to provide context for and inform the understanding of the
identification); In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir.
2005) (examining the subject website in order to understand the meaning of terms in
the mark). Thus, consumers would perceive the different spelling NZYME “as the
equivalent” of “enzyme.”

7 7 TTABVUE 15 (Applicant’s Brief) (emphasis in original). In another example, Applicant
argues in its Brief that “the primary significance of the term ‘enzyme’ or ‘nzyme’ to the
relevant public is that of a food or dietary supplements.” 7 TTTABVUE 10. Later, Applicant
prefaces an argument with, “If ENZYME or NZYME were truly generic for carpet and
upholstery cleaners and deodorizers ….” 7 TTABVUE 14.
8 9 TTABVUE 6 (Examining Attorney’s Brief).
9 October 17, 2018 Office Action at 7 (mocproducts.com).
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1. Evidence of Genericness
The record includes extensive evidence of third-party generic use of “enzyme
cleaner” and “enzyme deodorizer,” such as the following (emphasis of “enzyme”
references added below):
• The Do It Yourself website features an article titled “Enzyme Carpet Cleaner:
How It Works and When to Use It,” noting that in dealing with the aftermath
of pet urine on carpet, “[t]his is where enzyme cleaners come in…. Enzyme
cleaners work by latching themselves onto the bacteria left by the urine or
territorial spray.”10
• The CatCentric website includes an article on “How to Remove Cat Urine: Why
an Enzyme Cleaner must be used,” stating that “The only thing that will
break down the uric acid to permanently remove the smell is an enzyme
cleaner.” The article includes instructions on how to “properly use an enzyme
cleaner on a fresh stain,” such as to “[s]lowly pour the enzyme cleaner
on/around the area.”11
• The Clean My Space website features an article titled “Enzyme Cleaners: The
Best Cleaning Product Ever!” outlining that “When we apply an enzyme
cleaner to a surface the enzymes essentially digest dirt, grease, bacteria, and
grime.” The author states, “I have tested several enzyme cleaners,” and “[m]y
favorite enzyme cleaner right now is Bac-Out by Biokleen.”12

10 October 17, 2018 Office Action at 12-13 (doityourself.com).
11 October 17, 2018 Office Action at 15-16 (catcentric.org) (emphasis in original).
12 January 24, 2019 Office Action at 5-9 (cleanmyspace.com) (other emphasis in original).
Serial No. 88007453
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• The Hunker website features an article captioned “List of Enzyme Cleaners,”
noting that “[o]ne enzyme cleaner doesn’t work for all cleaning jobs. There are
different enzyme cleaners you should use…. [A]n enzyme cleaner is ideal for
attempting to clean up pet stains on hardwood floors, upholstery and carpet …
along with any unpleasant smells.”13
• The GreenHome website includes an article titled “A Guide to Enzyme
Cleaners,” explaining that “Enzymes are biological compounds that help
speed up chemical reactions, which makes them perfect for cleaning up
household messes…. [T]hey are perfect for cleaning up nasty pet stains on
upholstery, carpets, or hard floors. The enzymes will actually break down the
proteins in the stain, meaning that not only will the stain be gone but you can
also get rid of any persistent smells.”14
• The Vacuum Top Cleaning Product Reviews website features a post on the “6
Best Enzyme Cleaners 2019” which it calls “the right stuff to kill the stinky
bacteria in pet urine, feces and vomit,” noting “there are plenty of great
enzyme cleaners to choose from.”15
• The website of the National Organization of Remediators and Mold Inspectors
has an article titled “The Top Five Uses for Enzyme Cleaners in the Home,”
with one such use being “Stained Carpets” on which the enzymes “are very

13 January 24, 2019 Office Action at 10-12 (hunker.com).
14 January 24, 2019 Office Action at 13-14 (greenhome.com).
15 January 24, 2019 Office Action at 15-16 (vacuumtop.com).
Serial No. 88007453
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effective in reducing (or in most cases eliminating) odors caused by urine, vomit
and other organic-related odors.”16
• The NaturallySavvy website includes a post about “natural enzyme cleaners,”
noting that they are effective on “pet stains and odors.” The post later notes
that “Pet odors such as urine and kitty litter can be easily taken care of by
spraying the area with a natural enzyme cleaner which will eat the odor-
causing bacteria.”17
• Amazon listing for “Pet Stain & Odor Miracle – Enzyme Cleaner for Dog and
Cat Urine, Feces, Vomit, Drool,” describing it as the “#1 Rated Enzyme
Cleaner.”18
• Amazon listing for “Bubbas, Super Strength Commercial Enzyme Cleaner-Pet
Odor Eliminator,” stating that “Customers Love Our Enzyme Cleaner and Pet
Odor Eliminator.”19
• Amazon listing for “Otter Wax Odor Eliminator,” described as a “Botanical
Enzyme Deodorizer.”20
• The Betco website offers a product called “Fiberpro® Enzyme Deodorizer.”21

16 January 24, 2019 Office Action at 17-18 (normi.org).
17 January 24, 2019 Office Action at 19-21 (naturallysavvy.com).
18 October 17, 2018 Office Action at 8 (amazon.com).
19 October 17, 2018 Office Action at 11 (amazon.com).
20 January 24, 2019 Office Action at 25 (amazon.com).
21 January 24, 2019 Office Action at 22 (betco.com).
Serial No. 88007453
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• Under the category “Enzyme Cleaner and Deodorizer,” the Maybury website
offers Tri-Fecto Bio-Enzymatic Cleaner for use on floors and other surfaces.22
• The MDS Associates website offers a product for use on “carpet and
upholstery,” ideal for “other surfaces where odors linger,” called Big D® 1-
Quart Enzyme Cleaner.23
• The JonDon website offers “Strike-Three Enzyme Deodorizer.”24
• The Ocean Janitorial Supply website offers Windsor® Red Carpet Enzyme
Deodorizer.25
• The CWS-Direct website offers “CWS-CCMPF: Pet-Free (1 Gal) – Enzyme
Deodorizer & Urine Odor Remover” for use on “all types of carpeting and
fabrics.”26
• The Gliptone website offers Bio-Zyme, an Enzyme Cleaner & Deodorizer.27
• The Home Depot website offers Cleansource’s Odor Gone Enzyme
Deodorizer.28
• CleanCraft Products’ website offers “Pet n’ Fresh (1 Gal): Enzyme Deodorizer
& Cleaner.”29

22 January 24, 2019 Office Action at 23 (maybury.com).
23 January 24, 2019 Office Action at 24 (mdassociates.com).
24 January 24, 2019 Office Action at 26 (jondon.com).
25 January 24, 2019 Office Action at 27 (oceanjanitorial.com).
26 August 2, 2019 Office Action at 17 (cws-direct.com).
27 August 2, 2019 Office Action at 18 (glipstone.com).
28 August 2, 2019 Office Action at 19 (supplyworks.com).
29 August 2, 2019 Office Action at 20 (cleancraft.com).
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• The Parish website offers “Liquid Enzyme-Odor Eliminator” usable for, inter
alia, “carpeted areas.”30
• The ITW ProBrands website includes under the heading “Enzymes & Odor
Control” a product called “LIQUID ALIVE® Enzyme Digestant, Stain
Remover & Deodorizer” to be used on carpets and upholstery.31
• The Innovative Chemical Corporation website offers an “Enzyme-Carpet
Spotter & Deodorizer.”32
• The website of Bane-Clene® carpet cleaning services describes its “Enzyme
Pet Urine Deodorizers” as “an enzyme treatment” for carpets.33
• An Angie’s List article on “Carpet Cleaning Extras” quotes a service provider
saying, “I have to use an enzyme [solution] to kill that live bacteria that is
causing the odor.”34
Applicant criticizes the evidence on several grounds. First, Applicant asserts that
in Merrill Lynch, 4 USPQ2d 1141, “the Federal Circuit held that although news
services and websites used [the proposed mark] generically, these sources were not
probative on whether the relevant public understood the mark to be generic.”35
However, the Federal Circuit in Merrill Lynch did not cast aspersions on the ability

30 August 2, 2019 Office Action at 22 (parish-supply.com).
31 August 2, 2019 Office Action at 23 (itwprobrands.com).
32 August 2, 2019 Office Action at 24 (iccmn.com).
33 August 2, 2019 Office Action at 12 (baneclene.com).
34 August 2, 2019 Office Action at 15-16 (angieslist.com).
35 7 TTABVUE 15 (Applicant’s Brief).
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of generic uses in news articles and on websites to reflect public understanding of the
term. Id. Instead, the court’s rationale stemmed from what it deemed “[t]he mixture
of usages” showing “recognition in a substantial number of publications that the
source of the [proposed mark] was the appellant. This evidence does not clearly place
appellant’s mark in the category of a generic or common descriptive term.” Id. at
1143-44. Thus, the nature of the sources relied on by the Examining Attorney are not
problematic, and we do not discern the same type of “mixture of usage” discussed in
Merrill Lynch in the record in this case.36 To the contrary, the evidence of record
shows that “enzyme” is generic for cleaning and deodorizing products, which often
include enzymes.
Turning back to the record in this case, Applicant next asserts that evidence such
as that detailed above only supports the descriptiveness of “enzyme,” but does not
show genericness. According to Applicant, these third parties must “use the genus
product name, i.e., cleaner or deodorizer, in conjunction with the word ‘enzyme’ to tell
the public what the product is.”37 Applicant insists that because there are both
chemical-based and enzyme-based carpet and upholstery cleaners, “[t]he only way to
get to a generic finding is to improperly narrow the genus of goods to ‘enzyme’ based
cleaners and deodorizers.”38 We disagree with Applicant’s characterization of the
evidence and the law on this point. This evidence ranges from articles and product

36 For the same reason, we are not persuaded by the analogy Applicant attempts to draw to
a 2004 non-precedential decision, In re Diamond Machining Tech., Inc., Serial No. 76345334,
in which the Board found a “mixed bag” of evidence.
37 7 TTABVUE 14 (Applicant’s Brief).
38 Id. at 15.
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reviews, to offers by Applicant’s competitors, and the references to “enzyme cleaner,”
“enzyme deodorizer,” “enzyme treatment,” etc. reflect use of “enzyme” to identify a
subcategory of carpet and upholstery cleaners and deodorizers. Just because
“enzyme” might modify “cleaner” or “deodorizer,” that does not necessarily indicate it
is descriptive, rather than generic. Following Applicant’s argument to its logical
extension would mean that “carpet” and “upholstery” do not name types of cleaners
and deodorizers either, when clearly they do.
While the genus in this case consists of carpet and upholstery cleaners and
deodorizers more broadly, we also must assess genericness with regard to a subgenus
or part of the genus. For example, in Royal Crown, the Federal Circuit held that the
Board must consider “whether [the portion of the proposed mark] ZERO is generic
because it refers to a key aspect of at least a sub-group or type of [the genus
of] the claimed beverage goods.” Royal Crown, 127 USPQ2d at 1047 (emphasis
added). Similarly, in Cordua Rests., the Federal Circuit affirmed the genericness of
CHURRASCOS for restaurant services where “‘churrascos’ refers to a key aspect of
a class of restaurants because those restaurants are commonly referred to as
‘churrasco restaurants.’” Cordua Rests., 118 USPQ2d at 1638 (emphasis added).
Thus, it is appropriate in this case to consider evidence that the proposed mark names
a sub-group or type of the broader genus of “carpet and upholstery deodorizers and
cleaners.”
2. Applicant’s Evidence
In an effort to counter the genericness refusal, Applicant submitted third-party
registrations, what appear to be entries from the USPTO’s ID Manual that include
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“enzyme” in the identification of goods or services, the entry for “enzyme” from
Dictionary.com, and an online encyclopedia entry for “enzyme.”39 According to
Applicant, because this evidence shows the use of “enzyme” in other contexts that do
not “relate or pertain to a cleaner or a deodorizer,” and because carpet and upholstery
cleaners and deodorizers can be chemical-based, its proposed mark is not generic.40
Applicant also incorrectly asserts that a term such as NZYME cannot be both
descriptive in the context of anti-oxidants and generic for carpet and upholstery
cleaners and deodorizers. Genericness is determined in relation to the relevant goods,
and not in the abstract, however. “That a term may have other meanings in different
contexts is not controlling.” In re Franklin County Historical Society, 104 USPQ2d
1085, 1087 (TTAB 2012) (citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB
1979)). Thus, we are not persuaded by Applicant’s evidence and arguments.
D. Conclusion as to Genericness
We find without question that Applicant’s mark is the generic name of a class of
carpet and upholstery cleaners and deodorizers – those that are enzyme-based and
often are referred to as “enzyme cleaners” or “enzyme deodorizers.” The relevant
consuming public would consider the term NZYME to name a subcategory of carpet
and upholstery cleaners and deodorizers. See Royal Crown, 127 USPQ2d at 1047.
Applicant’s proposed mark is therefore generic. See Cordua Rests., 118 USPQ2d at
1637-38.

39 4 TTABVUE 14-27 (Applicant’s Request for Reconsideration).
40 7 TTABVUE 12-13 (Applicant’s Brief).
Serial No. 88007453
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Decision: The refusal to register Applicant’s proposed mark on the ground that
it is generic is affirmed.