CAFC Affirms TTAB: NOPALEA Merely Descriptive of Supplements Containing Nopal Juice
In an enervating yet precedential ruling, the CAFC affirmed the Board's decision (here) upholding a Section 2(e)(1) mere descriptiveness refusal of the mark NOPALEA as a trademark for dietary and nutritional supplements "containing, in whole or in substantial part, nopal juice." In re TriVita, Inc., 114 USPQ2d 1574 (Fed. Cir. 2015) [precedential].
Appellant TriVita argued that the addition of the letters EA to NOPAL makes the mark NOPALEA substantially different in sight and sound. The CAFC observed, however, that "nopalea" is not a made-up word obtained by adding arbitrary letters. The record showed, and the Board found, that "nopalea" is a genus of cacti from which nopal juice is derived.
TriVita contended that the ordinary purchaser of its products will be of low botanical sophistication and will not immediately recognize the botanical meaning of the word "nopalea." However, the court agreed with the Board that there is "abundant evidence, scientific and non-scientific, of the words 'nopalea' and 'nopal' being used interchangeably," largely in the context of discussions of the health benefits of this class of cactus.
The Board found that the relevant consumer, knowing that the goods are supplements containing nopal cactus juice, would understand the mark NOPALEA to convey information that the goods contain ingredients from the Nopalea cactus. The Board based its finding on evidence that “nopalea” is the name of a genus of cacti used in food and supplements, that the word “nopal” is a common name for prickly pear cacti including cacti in the genus Nopalea, and that the words “nopal” and “nopalea” are used interchangeably to refer to cacti of that genus. Substantial evidence supports the Board’s findings, and its conclusion that “nopalea” is merely descriptive of TriVita’s goods.
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Text Copyright John L. Welch 2015.