Monday, August 06, 2012

Precedential No. 25: TTAB Finds "α CU" (Alpha CU) Deceptive for Copper-less Dietary Supplements

The Board affirmed a Section 2(a) refusal of the mark shown to the right (the symbol alpha followed by the upper-case letters CU), finding it to be deceptive for "dietary supplements, namely, lipoic acid, vitamin C, ascorbic acid, zinc, zinc amino acid chelate, riboflavin, biotin, vanadium, vanadium sulfate." The Board agreed with Examining Attorney Andrew Leaser that CU means copper to consumers, that copper is not included in Applicant's goods, and that this misrepresentation will materially affect the consumer's decisions to purchase the goods. In re E5 LLC, 103 USPQ2d 1578 (TTAB 2012) [precedential].

The test for deceptiveness under Section 2(a) is set forth in In re Budge, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988): 1) whether the mark misdescribes the goods; 2) if so, whether consumers would be likely to believe the misrepresentation; and 3) whether the misrepresentation would materially affect potential purchasers’ decision to purchase the product.

Applicant's principal attack concerned the meaning of CU. It acknowledged that “Cu” with a lowercase “u” represents copper on the periodic table, but it argued that CU (upper case) would not be understood by consumers to mean copper. The Board was persuaded otherwise by the PTO's submission of more than a dozen references showing the use of CU to refer to copper. Since the evidence also demonstrated that copper is a common ingredient in dietary supplements, the Board found that consumers "encountering applicant’s mark with the term 'CU' will likely understand the term in context to refer to the chemical element copper."

Applicant rather feebly claimed that consumers "would immediately understand that CU, as used in connection with its goods, means 'Controlled Uptake,' rather than “copper." But there was no evidence to support that assertion. Although Applicant’s specimen label (above) describes the goods as "Alpha Lipoic Acid Controlled Uptake Formula," the Board was not convinced that consumers would understand CU as the initials for “Controlled Uptake” as used in that complete phrase.

The Board also noted that the similar phrase “Alpha CU(TM) Controlled Uptake)” appears on the side panel of the specimen, but it was "not clear that consumers would even notice this insignificantly placed phrase, let alone make the connection between 'CU' and 'Controlled Uptake.'" Furthermore, the Board observed that "any clarifying features of an applicant’s advertising do not serve to overcome deceptiveness in a mark. Rather, the mark must stand on its own."

The second prong of the Budge was met [Have you ever met a prong? - ed.] by the evidence showing that copper is a common ingredient in dietary supplements. And the materiality prong was satisfied [Can a prong be satisfied? - ed.] by proof that copper has important and desirable health benefits.

And so the Board affirmed the refusal.

Text Copyright John L. Welch 2012.


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