Friday, May 11, 2007

TTAB Finds "NAIL CARE" Generic for Nutritional Supplements

In a ruling that was more of a "slam dunk" than a "nail-biter," the Board affirmed a genericness refusal of the designation NAIL CARE for nutritional supplements. Applicant Ayurvedic Concepts, which does business as Himalaya USA, failed to overcome the prima facie case established by PTO Examining Attorney Jason F. Turner. In re Ayurvedic Concepts, Ltd., Serial No. 78154263 (April 18, 2007) [not precedential].

The Examining Attorney relied on dictionary definitions for the word individually as well as in combination. The Board agreed that "nail care" refers to the proper maintenance/good health of fingernails and/or toenails. With a nod to American Fertility, it viewed this dictionary evidence "as being corroborative of genericness - not in itself conclusive of genericness."

Thousands of search engine hits for "nail care" showed that the phrase is "clearly a term of art in the field of skin care and beauty care." Moreover, Internet web pages used "nail care" as a specific category of skin beauty care or nutritional supplements. Applicant's own website stated that "NailCare is a unique herbal supplement that helps maintain healthy nail structure." [Emphasis supplied by the Examining Attorney].

The Board found the genus of goods to be "nail care supplements." [I think. It's not entirely clear to me what the Board found. - ed..] Turning to the question of whether the public understands "nail care" to refer to that genus, the Board answered in the affirmative. Likening the case to In re Central Sprinkler Co., 49 USPQ2d 1194 (TTAB 1998) [ATTIC generic because it refers to a narrow category of sprinklers for fire protection of attics], it opined:

"If a prospective purchaser - a member of the general purchasing public - were seeking to buy a nutritional supplement for strengthening her nails, it would be reasonable for her to refer to such a product as a 'nail care' supplement."

Thus the PTO made out a prima facie case of genericness. Applicant was unable to rebut it. It introduced "no evidence that contradicts the conclusion that 'nail care' is a generic descriptor of the nature of applicant's goods."

The Board was left with no doubt that NAIL CARE is generic for the identified goods.

Text Copyright John L. Welch 2007.


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