Natural Balance Pet Foods, Inc.

Trademark Trial and Appeal Board

Mar 17, 2008

No. 76612193 (T.T.A.B. Mar. 17, 2008)

Mailed: March 17, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Natural Balance Pet Foods, Inc.
________

Serial No. 76612180
Serial No. 76612193
_______

Thomas I. Rozsa of Rozsa Law Group LC for applicant.

Robert Clark, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
_______

Before Walters, Mermelstein, and Bergsman, Administrative
Trademark Judges.

Opinion by Mermelstein, Administrative Trademark Judge:

Natural Balance Pet Foods, Inc. seeks registration on
the Principal Register of the marks REPTILE SAUSAGE1
(standard characters) and the stylized mark2

both for “food for animals, namely, for meat eating
reptiles” (as amended) in International Class 31 (as
amended). Because these appeals involve the same applicant

1 Serial No. 76612193, filed September 13, 2004, alleging a bona
fide intention to use the mark in commerce.
THIS DECISION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 76612180
Serial No. 76612193

2
and common issues of law and fact, we resolve them in a
single opinion.
Registration has been finally refused on the ground
that the mark as used on the identified goods is merely
descriptive.3 Trademark Act § 2(e)(1); 15 U.S.C.
§ 1052(e)(1). Applicant and the examining attorney have
filed briefs. We affirm.
I. Record on Appeal
The record in both applications is identical, and
consists of the following evidence submitted by the
examining attorney:
• Web pages indicating use of the term “sausage” in
connection with reptile food:

2 Serial No. 76612180, filed September 15, 2004, alleging a bona
fide intention to use the mark in commerce.
3 In the first Office action, the examining attorney advised
applicant of a prior pending application which, if registered,
might be cited as a bar to this registration under Trademark Act
§ 2(d). See Application No. 76600673 (NEBRASKA BRAND CARNIVORE
“CUISINE” SAUSAGES (and design)) for “feed for captive and for
domesticated animals, including inter alia for carnivorous
birds”). The examining attorney subsequently withdrew the
potential refusal without comment, but explained in his brief
that he did so because the prior applicant submitted a disclaimer
of CARNIVORE "CUISINE" SAUSAGES and proceeded to registration on
that basis. By highlighting this point in his brief, the
examining attorney implies that this disclaimer should be
considered as evidence in support of the § 2(e)(1) refusal in
this case.
We disagree. The examining attorney did not make this point
prior to appeal, and applicant likely considered all issues with
respect to the prior application to be resolved in its favor when
the application was withdrawn as a potential bar to registration.
The record copy of the prior pending application did not include
the disclaimer and the resulting registration was never made of
record. Accordingly, we will not consider this registration as
evidence of descriptiveness.
Serial No. 76612180
Serial No. 76612193

3

o A page listing for sale “Trex snake sausage 10
pack.”4

www.pets-warehouse.com/cart/livefood.htm (April
12, 2005).

o A page describing “Snake Steak Sausage.”

Although developed specifically for snakes,
this product contains all the nutrients
needed by many snake, lizard, turtle and
amphibian species.” ... “Snake Steak
Sausages are a complete diet with no
artificial ingredients....” With Snake
Steak, “‘power feeding’ is possible by
offering several sausages linked together.
Once the snake takes one sausage, it then
must take the others.

www.t-rexproducts.com/Dynamic/product_detail.-
asp (April 12, 2005).

• A definition of “sausage”:

o Finely chopped and seasoned meat, especially
pork, usually stuffed into a prepared animal
intestine or other casing and cooked or cured.

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(3d ed. 1992)(electronic version).

In its appeal brief, applicant submitted a definition
of “reptile”:5

4 This product and the one discussed in the next item may emanate
from the same source. One is referred to as “Trex,” while the
other has a URL including www.t-rexproducts.com. We have
conservatively treated these as referring to one, rather than two
sources.
5 This definition was not in the record prior to appeal. See
Trademark Rule 2.142(d)(record should be complete prior to filing
an appeal). Nonetheless, the Board may take judicial notice of
dictionary definitions, Fed. R. Evid. 201(c); Univ. of Notre Dame
du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including
Serial No. 76612180
Serial No. 76612193

4
• 1. Any of various cold-blooded, usually egg-laying
vertebrates of the class Reptila, such as a snake,
lizard, crocodile, turtle, or dinosaur, having an
external covering of scales or horny plates and
breathing by means of lungs.

2. A person regarded as despicable or treacherous.

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th
ed. 1992)(August 16, 2007)(electronic version).

Applicant also attached to its brief on appeal a list
of 145 USPTO applications and registrations from the TESS
database.6 A list of applications and registrations is not
sufficient to make the listed applications and
registrations of record. The examining attorney did not
address the substance of this evidence, and instead
objected to it, noting that the Board will not take
judicial notice of third-party registrations, Ex. Att. Br.
at 7, citing In re Carolina Apparel, 48 USPQ2d 1542 (TTAB
1998); In re Wada, 48 USPQ2d 1689 (TTAB 1998), aff’d 194
F.3d 1297, 52 USPQ2d 1539 (Fed. Cir. 1999).

online dictionaries that exist in printed format or have regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB
2006). This definition appears uncontroversial, and we consider
it a proper subject for judicial notice.
6 The list is of the first 145 USPTO records resulting from the
search (live)[ld] and (sausage)[comb], in other words, all live
records in which the word “sausage” is used in the mark or in a
translation of the mark. According to applicant, 100 of these
applications and registrations “specifically include the term
‘sausage’ or ‘sausages’ in its goods or services,” although none
of them has been made of record.
Serial No. 76612180
Serial No. 76612193

5
We agree with the examining attorney, and further note
that this evidence is untimely:7
The record in the application should be complete
prior to the filing of an appeal. The ... Board
will ordinarily not consider additional evidence
filed with the Board by the appellant or by the
examiner after the appeal is filed. After an
appeal is filed, if the appellant or the examiner
desires to introduce additional evidence, the
appellant or the examiner may request the Board
to suspend the appeal and to remand the
application for further examination.

Trademark Rule 2.142(d).
Accordingly, we have not considered applicant’s list
of applications and registrations, or those parts of
applicant’s brief which discuss it.
II. Applicable Law
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Whether a particular term is merely
descriptive is determined in relation to the products for
which registration is sought and the context in which the

7 Even if it were timely, such a list would be of no probative
value because it omits critical information. For instance, the
list does not indicate the goods or services associated with each
mark, whether the registrations include a disclaimer or a claim
of acquired distinctiveness under Trademark Act § 2(f), or
whether they appear on the Principal or the Supplemental
Serial No. 76612180
Serial No. 76612193

6
term is used, not in the abstract or on the basis of
guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ
215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224
(TTAB 2002). In other words, the issue is whether someone
who knows what the products are will understand the mark to
convey information about them. In re Tower Tech, Inc., 64
USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent &
Trademark Serv. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In
re Home Builders Ass’n of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990); In re American Greetings Corp., 226 USPQ 365,
366 (TTAB 1985).
“On the other hand, if one must exercise mature
thought or follow a multi-stage reasoning process in order
to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely
descriptive.” In re Tennis in the Round, Inc., 199 USPQ
496, 497 (TTAB 1978). See also In re Shutts, 217 USPQ 363,
364-365 (TTAB 1983); In re Universal Water Sys., Inc., 209
USPQ 165, 166 (TTAB 1980). Even where individual terms are
descriptive, combining them together may evoke a new and
unique commercial impression. If each component retains
its merely descriptive significance in relation to the

Register. Moreover, many of the records appear to be pending
applications, which are evidence only of their filing.
Serial No. 76612180
Serial No. 76612193

7
goods, without the combination of terms creating a unique
or incongruous meaning, then the resulting combination is
also merely descriptive. In re Tower Tech., 64 USPQ2d at
1317-1318.
Finally, we note that our task here is to determine
whether the mark is descriptive of the identified goods.
As applicant correctly notes, the proper perspective for
our inquiry is the viewpoint of the prospective purchaser
of such goods. App. Br. at 16-17. However, for our
purposes, the nature of the goods themselves and the
identity of their purchasers must be determined by looking
no further than the application itself. Because it is the
application which describes the scope of any registration
which would issue, we must consider the goods to include
anything within the scope of the goods set out therein,
regardless of what the applicant’s actual product (or, in
this case, intended product) may be. See, e.g., Canadian
Imperial Bank of Commerce, N.A. v. Wells Fargo Bank, 1
USPQ2d 1813 (Fed. Cir. 1987); In re Linkvest S.A., 24
USPQ2d 1716, 1717 (TTAB 1992); In re Elbaum, 211 USPQ 639,
640 (TTAB 1981). Further, unless restrictions appear in
the application, such goods must be presumed to be sold to
the full range of purchasers, and to move in all usual
Serial No. 76612180
Serial No. 76612193

8
channels of trade, for goods of that type. In re Elbaum,
211 USPQ at 640.
III. Stylization of Application No. 76612193
As an initial matter, we note that the ‘180
application seeks registration of the stylized words
REPTILE SAUSAGE. The stylization consists of lettering in
an italic serif font with the mark displayed in all capital
letters. The stylization is not at all out of the
ordinary, and there is no other figurative element in the
mark.
While we consider the marks in their entireties, and
we do not ignore any aspect of them, we find that the
minimal stylization of the mark in the ‘180 application has
little, if any, effect on the visual impact of that mark or
its overall commercial impression. Such minimal
stylization does not remove an otherwise descriptive mark
from the ambit of Trademark Act § 2(e)(1). In re Guilford
Mills Inc., 33 USPQ2d 1042, 1043-44 (TTAB 1994); In re
Grande Cheese Co., 2 USPQ2d 1447, 1449 (TTAB 1986); In re
Behre Indus., Inc., 203 USPQ 1030, 1032 (TTAB 1979). For
purposes of this decision, we have accordingly focused on
the literal (and identical) element of both marks i.e., the
words REPTILE SAUSAGE.
Serial No. 76612180
Serial No. 76612193

9
III. Descriptiveness under Trademark Act § 2(e)(1)
To determine whether a mark is descriptive of the
identified goods, we must first determine what those goods
are. As noted, applicant’s goods are identified as “food
for animals, namely, for meat eating reptiles.” Although
restricted to food intended for reptiles, the goods
identified in the application cover the full range of food
eaten by such animals, and in any form those goods may be
sold in, including food in the form of sausages.8
Applicant argues that
the subject mark is not descriptive when used in
connection with the present goods having a myriad
of designs, shapes, and applications (i.e. a well
researched blend of moisture, crude protein,
crude fat, crude fiber, ash, calcium, phosphorus,
and vitamins that comprise the dietary foodstuff
to be fed by tweezers to crocodiles, alligators,
snakes, and lizards). [S]ince the determination
of descriptiveness is not made in the abstract,
it is the Applicant’s goods that require
analysis. When viewed in this context, the
present mark does not describe the goods to which
it relates; but instead, is used to suggest the
expansive uses of the goods and the marketability
of delicate “food for animals, namely, for meat
eating reptiles” to parks, zoos, preserves,
aquariums, breeders and zoological caretakers
that have been properly classified in Class 31.

8 We note that this application was filed based on an intent to
use the mark in commerce, and that no allegation of use has yet
been filed. There is little or no information in the record as
to the nature of the goods applicant actually intends to sell
under the mark. Nonetheless, the examining attorney has
presumed, and applicant has not directly denied, that applicant’s
contemplated goods are (or include) chopped meat and other
ingredients formed into a shape like a sausage.
Serial No. 76612180
Serial No. 76612193

10

Applicant’s argument appears to be that its mark is
not descriptive because it could be used on products with a
variety of nutritional formulations, shapes, and sizes
(that may be fed to reptiles with a tweezer). Applicant is
undoubtedly correct about the scope of its identification
of goods, but its conclusion is incorrect. It is not
necessary that a term be descriptive of every aspect of the
goods or every product within the scope of the identified
goods in order to support a finding of descriptiveness;
descriptiveness as to any one of them is enough. “[T]he
mark need not recite each feature of the relevant goods or
services in detail to be descriptive.” In re Dial-A-
Mattress Operating Corp., 57 USPQ2d 1807, 1812 (Fed. Cir.
2001), citing In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982).
To the extent that the range of “food ... for meat eating
reptiles” includes something that could be descriptively
called “reptile sausage,” the mark is descriptive. That is
to say, if the scope of applicant’s goods as identified in
the application includes sausages, it makes very little
difference that they also may include other shapes,
formulations or sizes.
Applicant’s mark is REPTILE SAUSAGE for “food for ...
meat eating reptiles.” It is the examining attorney’s
Serial No. 76612180
Serial No. 76612193

11
position that the mark immediately conveys relevant
information about the goods, i.e., that they are “sausages”
for “reptiles”:
[T]he word “REPTILE” in applicant’s mark
describes a characteristic of the goods, which
are consumed by reptiles. Since the goods are
for “meat eating reptiles[,”] the goods must
include “meat.” The evidence of record indicates
that “sausage” is defined as “finely chopped and
seasoned meat, especially pork, usually stuffed
into a prepared animal intestine or other casing
and cooked or cured.” Therefore the word
“sausage,” which is a meat, also describes a
characteristic of the goods. ... Attached to
the Office action mailed April 13, 2005, are
advertisements ... that refer to sausages for
reptiles. ... This advertisement shows that
[food] for snakes includes sausages.

Ex. Att. Br. at 3-4.
Applicant raises a number of arguments in response,
variously urging that the mark is fanciful or suggestive of
the identified goods. Applicant’s major contention appears
to be as follows:
The Applicant respectfully submits that the
term “SAUSAGE” as used in the ... mark ... and
taken in relation to the goods, pet food, is
fanciful. By way of example, sausages, in
general are not associated with being served to
animals. Serving a distinctly human food to an
animal is extraordinary. Additionally, the
adjective before the word sausage usually denotes
the ingredient, maker, or style of the sausage
and not the being who consumes the sausage. For
example, pork sausage denotes sausage made from
pork; beef sausage denotes sausage made from
beef; farmer’s sausage denotes sausage that has
been made on a farm with “farm” seasonings;
country sausage denotes sausage made with
Serial No. 76612180
Serial No. 76612193

12
seasoning that evokes a country style; polish
sausage denotes sausage made in the style as that
in Poland; and smoked sausage denotes sausage
that is smoked. None of these are ever referred
to on a menu or in a store as “human sausage”
because the one who consumes the sausage is
naturally assumed to be a human. The placement
of an adjective before the word “sausage” that
does not denote an ingredient, maker, or style is
highly fanciful. The ... mark ... places the
word “REPTILE” before the word “SAUSAGE...,” but
the ... goods do not have reptiles as an
ingredient for its pet food, is not made by
reptiles, and is not in a “reptile-style,” but
instead is to be consumed by carnivorous animals
of all sizes, from a small lizard to a snake to
an alligator. Therefore the ... mark ... is
highly fanciful and is not merely descriptive of
the goods.

App. Br. at 10-11.
The problem with applicant’s argument is that it is
not supported by the record. For example, applicant states
that serving sausages or any human food to animals is
“extraordinary,” implying that the relevant consumers would
thus not understand the mark to describe the identified
goods. We do not find the notion of giving a pet “human”
food (or food that is similar to human food) to be an
inherently unusual concept. But more importantly, there is
no evidence that “human” food (or human-style food) is
never given to animals. In fact, the evidence supplied by
the examining attorney proves the contrary; at least one
other producer (“T-Rex”) makes “sausages” intended as food
Serial No. 76612180
Serial No. 76612193

13
for snakes. Applicant’s brief fails to address this
evidence.
Likewise, applicant contends that the word before
“sausage” usually refers to the type of sausage or the
maker of the sausage, and that its product is not made by
or of reptiles. Applicant’s major premise is not supported
by the record or by common sense. The problem is that
applicant focuses only on food which is intended as food
for people, not animals. As applicant itself notes, the
determination of whether a mark is descriptive is not made
in the abstract, but with reference to the identified
goods. We therefore start off knowing that applicant’s
goods are food for carnivorous reptiles, and not food for
humans.
It is common knowledge that when speaking of animal
food, it is not unusual to distinguish it from “human
food,” even though the corresponding “human food” is not
designated as such. Thus, even if applicant is correct in
its contention about the structure of terms used to
describe sausages (for humans), its examples focusing
strictly on the “human” food market are not particularly
relevant to how terms are perceived in the animal food
market.
Serial No. 76612180
Serial No. 76612193

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For instance, we cannot ignore the fact that large
categories of animal food are called “pet food,” “dog
food,” or “cat food,” even though the phrase “human food”
would not usually be used in conversation, and it is
unlikely that pets, dogs, or cats are ingredients. We
doubt that anyone would believe that “dog biscuits” are
made by dogs (or made out of dogs), although one does not
ask for a “human biscuit” to go with an order of fried
chicken.
It is quite apparent that, contrary to applicant’s
assertion, at least some items in the animal food industry
are commonly called by a phrase consisting of the name or
category of the animal for which the food is intended,
followed by a word describing the product itself. Because
this structure is rarely, if ever, used when speaking of
food for human consumption, applicant’s examples of
descriptive terms applied to sausages for human consumption
is entitled to little or no weight.
Applicant argues further that the combination of words
in its mark is “fanciful, if not cute,” Reply Br. at 5,
apparently on the premise that “sausage” is a distinctly
human food, and is incongruous when juxtaposed with the
word “reptile” and applied to food for reptiles. But
again, we see nothing inherently unusual about calling a
Serial No. 76612180
Serial No. 76612193

15
mixture of meat, fat, and other nutrients in a sausage-like
form a “sausage,” even if intended for animals, rather than
for people.
It is not clear from this record whether it is common
practice in the relevant industry to call animal food (or
reptile food) a “sausage.” But the record contains
evidence of at least one purveyor of similar goods which is
doing just that. But even if applicant were the only user
of the term “sausage” in connection with food for reptiles,
that fact would not require reversal of the refusal to
register. “[A] word need not be in common use in an
industry to be descriptive, and the mere fact that an
applicant is the first to use a descriptive term in
connection with its goods, does not imbue the term with
source-identifying significance. In re Hunter Fan Co., 78
USPQ2d 1474, 1476 (TTAB 2006); see also In re Ruffin Gaming
LLC, 66 USPQ2d 1924, 1932 (TTAB 2002); In re National
Shooting Sports Found., Inc., 219 USPQ 1018, 1020 (TTAB
1983).
Applicant raises a number of other arguments. Suffice
it to say that we have carefully considered all of them,
but they do not convince us of a different result.
Serial No. 76612180
Serial No. 76612193

16
V. Conclusion
After careful consideration of the evidence of record
and of the parties’ arguments, we conclude that applicant’s
mark, REPTILE SAUSAGE, is merely descriptive of a feature
or characteristic of “food for animals, namely, for meat
eating reptiles,” and that registration is accordingly
barred under Trademark Act § 2(e)(1).
Decision: The refusal to register is accordingly
affirmed.