Monday, July 18, 2011

WYHA? TTAB Affirms 2(e)(1) Mere Descriptiveness Refusal of MUSCLE MAIZE for Supplements

Dictionary definitions of "muscle" and "maize," third-party registrations with MUSCLE disclaimed, and website evidence submitted by Examining Attorney Drew Leaser convinced the Board that the mark MUSCLE MAIZE is merely descriptive of "dietary and nutritional supplements" [MAIZE DISCLAIMED]. Would You Have Appealed? In re Nutraquest, Inc., Serial No. 77729645 (July 7, 2011) [not precedential].

Click on photo for larger picture

The evidence established that MUSCLE MAIZE "would immediately describe, without conjecture or speculation, a significant characteristic or feature of such goods, namely, that they are dietary or nutritional supplements that contain maize starch intended to promote muscle growth and recovery."

Applicant Nutraquest feebly argued that the constituent terms have various meanings, and so MUSCLE MAIZE "'might suggest that Applicant is particularly effective at transmitting the nutritional benefits of corn to the user;' 'that the corn-based ingredient(s) have ‘muscle’ and are especially effective or beneficial;' or that 'Applicant’s product contains only the ‘muscle,’ or the fundamental and most beneficial nutritional element(s) of corn.'" The Board pointed out, however, that the mark must be considered in relation to the involved goods; the fact that the words may have other meanings in other contexts is not controlling.

Finally, Nutraquest pointed to third-party registrations for MUSCLE-formative marks, but the Board pointed out once again that each case must be decided on its own record. "While uniform treatment under the Trademark Act is highly desirable, our task here is to determine, based upon the record before us, whether applicant's mark is registrable."

Nutraquest requested that, if its appeal failed, the mark "be remanded to the Examining Attorney with instructions to permit Applicant to amend the application to the Supplemental Register." However, the application is based on intent to use, and since Applicant did not submit proof of use, it is ineligible for the Supplemental Register. Furthermore, "an application that has been considered and decided on appeal to the Board will not be reopened except in very limited circumstances not applicable to this case."

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2011. Photograph Copyright John L. Welch 2001.

3 Comments:

At 4:51 PM, Blogger Ian said...

Where did you take such a colorful photograph of corn?

 
At 5:10 PM, Blogger John L. Welch said...

That was taken at a farmstand on Route 2, on the way to Concord, MA from Cambridge.

 
At 2:35 PM, Anonymous Anonymous said...

I read this case and the Board decision is sloppy.

The examiner submitted registrations that supposedly show MUSCLE disclaimed, but in fact other words were disclaimed on a few. The Board accepted them all as proof that MUSCLE is descriptive even though in some MUSCLE was not even disclaimed.

When the Board looked at the third party registrations submitted by Applicant it simply dismissed them out of hand.

I agree with the result, but it just looked as if this was written hastily to get to the result the Board wanted.

Applicant should change its mark to MUSCLE MAZE.

 

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