WYHA? "HEALTHY HEMP" Merely Descriptive of Hemp-Containing Baked Goods, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register HEALTHY HEMP, finding it merely descriptive of "bakery goods; breads; tortillas; all of the foregoing containing hemp" [HEMP disclaimed]. Applicant argued that the mark as a whole "has no meaning," and that "the Board has approved marks that convey more about the respective goods or services than does Applicant's mark." Would You Have Appealed? In re French Meadow Organic Bakery, LLC, Serial No. 86243820 (February 4, 2016) [not precedential].

Examining Attorney Robert J. Struck relied on dictionary definitions of "healthy" ("conducive to health") and "hemp" ("a tall widely cultivated Asian herb (Cannabis sativa of the family Cannabaceae, the hemp family) that has a tough bast fiber used especially for cordage ...."), and on Internet pages referring to "healthy hemp" in the context of food (e.g., "7 Healthy Hemp Foods to Try"). The Board was convinced:

Based on this evidence, we find that the mark HEALTHY HEMP directly conveys to consumers that the bakery products, breads and tortillas are healthful products, and that they are hemp-based products. Therefore, the proposed mark HEALTHY HEMP is a combination of two adjectives which describe Applicant’s products (e.g., a healthy, hemp tortilla).

Applicant maintained that its mark "as a whole has no meaning and thus, is not descriptive of any goods.... [C]ombining the terms has no known significance and creates a unique impression which is inventive [sic]." The Board was unmoved.

As to third-party registrations of other marks, the Board once again observed: "It is well settled that the Board must address each case on its own merits," based on the record before it. In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)."

And so the Board affirmed the refusal.

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TTABlog comment: Well, would you have?

Text Copyright John L. Welch 2016.