Western Family Foods, Inc.

Trademark Trial and Appeal Board

Sep 16, 2008

No. 78387061 (T.T.A.B. Sep. 16, 2008)

Mailed:
September 16, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Western Family Foods, Inc.
________

Serial No. 78387061
_______

David P. Cooper of Kolisch Hartwell, P.C. for applicant

Amos T. Matthews, Trademark Examining Attorney, Law Office
117 (Loretta C. Beck, Managing Attorney).
_______

Before Bucher, Grendel and Taylor, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Western Family Foods, Inc. seeks registration on the
Principal Register of the mark CARB VALUE (in standard
character format) for goods identified, as amended, as
follows:
“canned fruits, frozen vegetables, canned
vegetables, tomato paste, tomato puree,
cranberry sauce, applesauce, processed
mushrooms, soups; canned and bottled
processed olives; pickles, jams, fruit and
berry preserves, marmalade, peanut butter,
maraschino cherries, pepperoncini, cocktail
onions, cheeses, cheese food, cheese spread,
instant nonfat dry milk, yogurt, fruit
flavored yogurt, margarine, non-dairy whipped
topping, non-dairy creamer, powdered mix for
making a milk-based beverage, edible oils,
vegetable shortening; frozen fresh fruits,
frozen fresh berries, meat, poultry, fried
chicken, frozen prepared meats, frozen
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78387061

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seafood, namely, frozen fish, potato chips,
potato-based dip chips, dry mixes for soups
dried fruits and vegetables, raisins,
dehydrated vegetables for use in the
manufacture of food products, dehydrated
potatoes and potato flakes, sweetened flaked
coconut, vegetable protein bits having a
bacon flavor, bacon, hot dogs and luncheon
meats” in International Class 29;
“corn chips, and tortilla chips, mayonnaise,
alimentary pastes, ramen noodles, rice,
flour, refrigerated bread dough; cake,
cookie, biscuit and pancake mixes; cake
frostings, sugar, spices, salt, mustard,
capers, tomato sauce, tomato catsup, pickle
relish, hot dog relish, hamburger relish, dry
mixes for sauces and gravies, salad
dressings, tea, coffee, instant cocoa mix,
breakfast cereals, honey, marshmallow creme,
tortillas, chocolate chips, crackers;
prepared frozen entrees consisting primarily
of meat, fish, poultry, and/or vegetables,
waffles, ice cream and brewer’s yeast” in
International Class 30; and
“soft drinks, canned fruit and vegetable
juices, canned fruit nectars, frozen fruit
juices and lemonade concentrate; and canned
fruit juice drinks containing water” in
International Class 32.1
The Trademark Examining Attorney refused registration
on the ground that the term is merely descriptive when
considered in relation to applicant’s identified goods under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1), i.e., that the term “Carb Value” immediately

1 Application Serial No. 78387061 was filed on 03/18/2004 based
upon applicant’s allegation of a bona fide intention to use the
mark in commerce.
Serial No. 78387061

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informs potential purchasers about an important dietary
feature of applicant’s listed food items.
After the Trademark Examining Attorney made the refusal
final, applicant appealed to this Board. Applicant and the
Trademark Examining Attorney have fully briefed the issues
involved in this appeal.
We affirm the refusal to register.
A mark is merely descriptive, and therefore
unregistrable pursuant to the provisions of Section 2(e)(1)
of the Trademark Act, 15 U.S.C. § 1052(e)(1), if it
immediately conveys “knowledge of a quality, feature,
function, or characteristics of the goods or services.”
In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d
1828, 1831 (Fed. Cir. 2007) [ASPIRINA is merely descriptive of
analgesic product]. See also In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009, 1009 (Fed. Cir. 1987) [APPLE PIE merely
descriptive of potpourri mixture]; and In re Quik-Print Copy
Shops, Inc., 616 F.2d 523, 205 USPQ 505, 507 (CCPA 1980).
To be “merely descriptive,” a term need only describe a
single significant quality or property of the goods.
Gyulay, 3 USPQ2d at 1009. Descriptiveness of a mark is not
considered in the abstract, but in relation to the
particular goods or services for which registration is
sought. That is, when we analyze the evidence of record, we
Serial No. 78387061

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must keep in mind that the test is not whether prospective
purchasers can guess what applicant’s goods are after seeing
applicant’s mark alone. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 218 (CCPA 1978) [GASBADGE merely
descriptive of a “gas monitoring badge”; “Appellant’s
abstract test is deficient – not only in denying
consideration of evidence of the advertising materials
directed to its goods, but in failing to require
consideration of its mark ‘when applied to the goods’ as
required by statute”]. Rather, the proper test in
determining whether a term is merely descriptive is to
consider the applied-for mark in relation to the goods or
services for which registration is sought, the context in
which the mark is used, and the significance that the mark
is likely to have on the average purchaser encountering the
goods or services in the marketplace. In re Omaha National
Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re
Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991); and In re
Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986).
Hence, the ultimate question before us is whether the
term CARB VALUE conveys information about a significant
feature or characteristic of applicant’s goods with the
immediacy and particularity required by the Trademark Act.
Serial No. 78387061

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A mark is suggestive, and therefore registrable on the
Principal Register without a showing of acquired
distinctiveness, if imagination, thought or perception is
required to reach a conclusion on the nature of the goods or
services. “Whether a given mark is suggestive or merely
descriptive depends on whether the mark ‘immediately conveys
… knowledge of the ingredients, qualities, or
characteristics of the goods … with which it is used,’ or
whether ‘imagination, thought, or perception is required to
reach a conclusion on the nature of the goods.’” (citation
omitted) In re Gyulay, 3 USPQ2d at 1009; In re Home Builders
Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); and
[In re American Greetings Corp., 226 USPQ 365 (TTAB 1985).
In arguing for registrability, applicant contends that
there is clearly some doubt as to whether the term “Carb
Value” is merely descriptive, and that such doubt must be
resolved in favor of applicant. Specifically, applicant
argues that it takes thought to understand the relationship
between the term “Carb Value” and applicant’s food items;
that the Trademark Examining Attorney’s conclusions are not
supported by substantial evidence showing that the relevant
purchasing public and industry use and understand the term
“Carb Value” to be descriptive of applicant’s goods; and
that relevant case law supports applicant’s position that
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the term “Carb Value” is too vague to qualify as being
merely descriptive of a feature of applicant’s goods.
By contrast, the Trademark Examining Attorney argues
that evidence from the Lexis/Nexis® computerized database
and from Internet websites demonstrates that the term
“Carb Value” is commonly used to describe an important
dietary feature of various food items.
… gives Weight Watchers point values for
many restaurant menu items. It also gives
calories, fat, fiber and carb values. Just
go to the site and click on “Restaurants.”
If a menu item isn’t on the site, it pretty
much … 2

Those varieties which are both low-fat and
low-carb, in addition to having the low
point value, have a low net carb value in the
range of three to six net carbs. And what is
immediately evident from the line as a whole
is the innovative and increasingly indulgent
flavor variety which we have used to start
the brand off.3

… Other chains, including Applebee’s and
T.G.I Friday’s, have partnered with weight-
loss groups and include Weight Watcher points
or Atkins carb values on their menus for some
entrees.4

… fat, protein, ash, and water are
subtracted from the total gram weight of
the food; the remainder is counted as
carbohydrates. By this definition, the total
carb value would include sugar alcohols and

2 The Wichita Eagle, December 3, 2007

3 FD (Fair Disclosure) Wire, November 30, 2004

4 Orlando Sentinel (Florida) July 1, 2004

Serial No. 78387061

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fiber, as well as sugar and starch, she
says.5

Cream’s a dream: Use sugar substitutes to
lightly sweeten whipped cream for the least
carb values. Dream on with a little sugar-
free crème brulee mixed with the berries
for the most luxurious controlled carb
dessert.6

… Manufacturers subtract [sugar alcohols]
from the total carbohydrate content to get
a “net carb” value – a term not approved by
the FDA…
… Indulging in high calorie, low
carbohydrate products, regardless of their
“net carb” value, is likely to pack on
weight and excess saturated fat will
increase heart disease risk too.7

… Choose 40 percent of your calories from
carbs, 20 percent from fat and 40 percent
from protein. Krug believes this
macronutrient ratio, cobbled together from
popular diets, offers the best of current
nutritional wisdom. "The carb value follows
the same thinking as the Zone Diet," says
Krug. "The fat number is what the American
Cancer Association recommends, although it is
lower than the Zone’s 30 percent figure.
Many foods contain hidden fats, so by
shooting for 20 percent on paper, you can
pretty much assure yourself of staying under
30 in the real world …8

… let’s analyze this label. Turning to my
trusty and highly recommended carb hunters’
resources*, I come up with the following

5 The Boston Globe, March 17, 2004

6 The Detroit News, July 17, 2003, and The Desert Sun (Palm
Springs, CA), August 13, 2003

7 The Patriot Ledger (Quincy, MA), March 9, 2004

8 Men’s Fitness, October 1, 2002

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carb values subtracting the Total Dietary
Fiber (TDF) content from the Total
Carbohydrate Level. Let’s assume that
sorbitol, a sugar …
… whole wheat flour contains about 73 percent
total carbs and 12 percent TDF, for a net
carb value of 61 percent.
* Rye Flour- this was a light colored
bread, but let’s assume it was dark
(i.e., low-carb) rye flour: 69 percent
total carbs and 23 percent TDF, for a
net carb value of 46 percent. Light rye
flour has even more carbs.9

For those watching their diet, options
abound. These days, low-carb suggestions
(complete with carb values) and vegetarian
alternatives round out the menu …10

Net Carbs Defined
There is not an official government
definition of Net Carb at this time. In our
software programs Net Carb is defined as:
Net Carb = Total Carbohydrate -
(Dietary Fiber + Sugar Alcohol)
If the Dietary Fiber and/or Sugar Alcohol
values are missing (unknown) from food item
data, the Net Carb calculation will treat the
missing value(s) like zeros. For example, if
both the Dietary Fiber and Sugar Alcohol
values are missing, the Net Carb value would
be equal to the Total Carbohydrate value,
which may over-represent the Net Carb value.
It is therefore important to also look at the
Dietary Fiber and Sugar Alcohol values of
foods and recipes when assessing the Net Carb
value.11

Net Carbs = Total Carbohydrate minus Fiber
minus Sugar Alcohol

9 Stagnito ’s New Products Magazine, February 2004

10 Columbia Dispatch (Ohio), February 13, 2005

11 http://www.esha.com/netcarb

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If you take our Whole Almonds as an
example, you have 6 grams of carbs, 4 grams
of fiber, and a resulting Net Carb value of 2
grams (6-4).
All of the products bearing our Carb-
Raider label have a net carb value of 10
grams or less per serving, and the majority
of them have 5 grams or less.
Are Carb-Raider™ Products Different From
Regular Products?
Not necessarily. For example, our almonds
and other nuts are no different from the
products we were selling yesterday.
We are simply promoting them for the low-
carb value that they naturally have and
trying to bring attention to the fact that
much of what we do will fit with the Low-Carb
Lifestyle. There is no such thing as a "Low-
Carb" nut and a "Regular" nut. Because of
the way that God made them, they happen to
have high fiber and subsequently low net carb
values. In other cases, the products have been
specifically engineered to yield a low net
carb value, such as our sugar-free and
reduced sugar products. We also have a few
trail mixes (like the New Almond Summit
Crunch) that we have specifically designed to
have fewer net carbs than before.12

What Are Net Carbs
The carbohydrate count given with each
recipe, and pre-designed menu on
www.lowcarbguy.com is total carb count. You
are permitted on a low carb diet to use net
carb count when totally [sic] your total
carbs per day.
Net carbs is a term becoming more popular
with low carb diets. The term is used to
reflect the amount of carbohydrate that is
rapidly available in any food or product. It
subtracts those carbs such as fiber,
glycerin, and sugar alcohols, which either
are not digested or are digested but do not
impact blood sugar more than negligibly. You

12 http://www.mountainmanevergreen.com/carb.htm

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can calculate the net carb value of any
recipe by subtracting the grams of fiber,
sugar alcohols and glycerin from the number
of carbohydrate grams.
Example: 2 Tablespoons of Creamy Peanut
Butter has 6g of Carbohydrate less 2g of
fiber gives you a net carb value of 4g.
Note: It is my advice that you not neglect
total calories when selecting recipes for
your daily menu. Some recipes may be very
low in carbs, but extremely high in fat
calories. It is important to have variety in
your choices. Going on an instant pudding
only diet for a week would result in weight
gain, although your carbohydrate count would
be such that you should have lost weight.
Example: Sugar Free/Fat Free Instant
Pudding made with heavy cream instead of
milk only has 5 net grams of
carbohydrates per serving, BUT contains
320 calories from fat.13
I learned from a dietician what foods are
and are not high in carbohydrates. Oh,
there’s the problem: carbs. So, now I am on
a low-carb diet and have become an
exceedingly boring person. I can spout off
the carb value of almost any food you can
name. And I can tell you how much of that
food to eat, before you bankrupt the carb
level. The goal is for me to eat no more
than 30 grams of carbs at a meal, and 15
grams at a mid-morning and mid-afternoon
snack. Hey, I am liking this idea -- snacks?
I never used to get those. But, wait. 30
grams – do you know how little that is?
First thing to go, almost any kind of
starch. One half cup of mashed potatoes?
There’s your 30 grams. Now, I challenge you
– can you eat ONE HALF cup and then quit? I
mean, your clenched fist is a decent way to
judge ONE CUP. So, half a fist of mashed
potatoes. OK. How about rice? Nope – 40
grams of carbs in a cup. And on it goes –
almost any form of starch – potatoes, rice,

13 http://lowcarbguy.com/NetCarbs.html

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pasta (whimper), bread - all too high in
carbs. So portions must be small.
And forget muffins and bagels. Bagels?
Really high.
So what can I eat? Well, proteins in all
forms. Meats, cheeses, even beans because
they are high in fiber. Fiber is good; carbs
are bad. I have become a food mathematician
- take the carb value of a portion of food,
subtract the fiber grams and you have roughly
(no pun intended) the overall carb value.14

[the emphasis above was shown on the excerpts placed
into the record by the Trademark Examining Attorney]

As evidenced in the excerpted articles from the
Lexis/Nexis database and from the Internet, the term “carb
value” seems to be a term-of-art. This is especially true
in the wake of the peak in popularity several years ago of
the Atkins Diet, South Beach Diet, and other similar low-
carbohydrate diets. It is also apparent from these excerpts
that substantially all low-carb dieters and most others
consumers attuned to the nutritional values of foods would
currently recognize that all foods have a “carb value.” As
seen above, the terms “net carb value” or “net carbs,” in
particular, reflect the portion of the non-fiber
carbohydrate that is rapidly available to the body. Even in
the absence of modifiers like “low” or “net” before the term
“carb value,” we find that the term “carb value” alone

14 http://kgmom.blogspot.com/search?updated-max=2007-01-
16T23%3A13%3A00-05%3A00&max-results=20
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immediately conveys knowledge of a feature or characteristic
of the goods.
While applicant argues that the evidence does not point
to other manufacturers or merchants currently using the term
“carb value” in connection with food items, there is some
indication that it may have been closely associated with the
popular Atkins Diet.15 In any case, we find that applicant
cannot appropriate for itself as a proprietary source-
indicator a term of art that should be freely available to
all competitors in the food and diet products industries to
refer to their products. Notably, the excerpts above
suggest that other manufacturers or merchants wanting to
capitalize on the continuing interest in low-carb diets
would likely need to use the instant term in describing
their own food products. Accordingly, we find that the term
“Carb Value” is merely descriptive of food items and
beverages in all three classes of goods for which applicant
has indicated an intention to use this term.
Decision: The refusal to register under
Section 2(e)(1) of the Lanham Act is hereby affirmed.

15 See quotation above at footnote 4, from the Orlando Sentinel
(Florida) on July 1, 2004, appearing at the very height of the
low-carb craze:
“Other [restaurant] chains … have partnered with weight-
loss groups and include Weight Watcher points or Atkins carb
values on their menus for some entrees…”