Monday, June 07, 2010

Finding "ORGANIC ASPIRIN" Deceptively Misdescriptive of and Deceptive for Dietary Supplements, TTAB Sustains Bayer Opposition

The Board sustained an opposition to registration of the mark ORGANIC ASPIRIN for "dietary supplements for human consumption," finding it to be deceptively misdescriptive under Section 2(e)(1) and deceptive under Section 2(a). Applicant unsuccessfully argued that the combination of "Organic" with "Aspirin" is incongruous since there is no such thing as organic aspirin, and therefore that the mark is inherently distinctive. But Applicant's own advertising materials proved to be a major pain in the argument. Bayer Aktiengesellschaft v. Stamatios Mouratidis, Opposition No. 91185473 (May 21, 2010) [not precedential].

Bayer established its standing by submitting it federal registrations for the mark BAYER for vitamin, mineral and nutritional supplements, thereby proving its commercial interest in the proceeding.

The CAFC's test for deceptiveness under Section 2(a) has three parts:

  1. Is the term misdescriptive of the character, quality, function, composition or use of the goods?
  2. If so, are prospective purchasers likely to believe that the description actually describes the goods?
  3. If so, is the misdescription likely to affect a significant portion of the relevant consumers’ decision to purchase?

The third question, whether the misdescription is likely to affect the decision to purchase, distinguishes marks that are deceptive from marks that are merely deceptively misdescriptive. [What difference does it make? Deceptively misdescriptive marks may be registered under Section 2(f), deceptive marks cannot be - ed.]

As to question 1, the Board found it "plausible that dietary supplements could contain aspirin for its cardiovascular and other health benefits. *** Applicant’s dietary supplements do not contain acetylsalicylic acid otherwise known as aspirin. Thus, the term 'Aspirin' is misdescriptive of applicant’s goods."

As to question 2, the Board concluded that the term ORGANIC ASPIRIN conveys the literal commercial impression that applicant’s products are, or contain, a natural aspirin product. "The text of applicant’s websites and advertising ... reinforces this commercial impression by contrasting applicant’s products with synthetic aspirin. ... applicant’s advertising leads consumers to believe that there are two types of aspirin: organic and synthetic."

Applicant argued that consumers know there is no such thing as "organic aspirin," but the Board observed that "[p]resumably, dietary supplements are available to all consumers some of whom may not know that there is no such thing as organic aspirin." Moreover, Applicant's own advertising is "leading consumers to mistakenly believe that its product is, or contains, aspirin derived from natural products."

Finally, as to question 3, the Board found that the use of the term “aspirin” in applicant’s mark ORGANIC ASPIRIN "is likely to affect the purchasing decision because consumers will purchase applicant’s dietary supplements in the mistaken belief that the products contain aspirin and, thus, provide the health benefits of aspirin." Moreover, the use of the term ORGANIC ASPIRIN "is likely to affect the purchasing decision of consumers who want the benefits of aspirin from a natural source, as opposed to synthetic chemicals, without the problems that traditional aspirin may cause."

And so the Board sustained the opposition.

TTABlog comment: Compare this case with the TTAB's recent ILEX decision (TTABlogged here), wherein the Board found that mark neither deceptive for, nor deceptively misdescriptive of, medicated skin care preparations.

Text Copyright John L. Welch 2010.


At 6:34 PM, Anonymous Rob said...

This case calls for a new WYHD blog section ("Would You Have Defended" the application). I wouldn't.


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