TTABlog Test: Is ZERO MEAT Merely Descriptive of Animal, Fish, and Poultry Certification Services?

The USPTO refused to register the proposed mark ZERO MEAT for "Testing, analysis and evaluation of the goods and services of others to determine conformity with certification standards; testing, analysis and evaluation of the food products of others to determine conformity with certification standards relating to animal, fish or poultry," on the ground of mere descriptiveness. Applicant Equity argued that the proposed mark is a coined phrase, and that other terms like "contains no ...", or free of ..." or "vegan" or "vegetarian" would be used to indicate the absence of animal, fish, or poultry content in foods. How do you think this came out? In re Equity IP Holdings, LLC, Serial No. 88517758 (December 16, 2021) [not precedential] (Opinion by Judge George C. Pologeorgis).

Examining Attorney Morgan L. Meyers relied on dictionary definitions of "zero" and "meat," as well as on several Internet items employing the term "zero meat." Applicant, in addition to the arguments mentioned above, pointed to existing registrations of marks comprised of the term “zero” with another words, claiming that the proposed mark deserves like treatment. And it asserted that any doubt on the issue of mere descriptiveness should be resolved in its favor.

The Board was unmoved by applicant's arguments. The "coined term" assertion was belied by the evidence showing use of the term ZERO MEAT by others. Moreover, even if applicant were the first user of the term, that would not preclude a finding of mere descriptiveness. 

As to the third-party registrations, applicant neglected to submit them into evidence. In any event, the Board must make its decision in each case on its own merits. "Even if some prior registrations had some characteristics similar to [Applicant’s] application, the PTO's allowance of such prior registrations does not bind the Board. . . ." In re Nett Designs Inc., 57 USPQ2d at 1566. 

The record showed that third parties use the proposed mark to describe goods that do not contain meat. "The evidence supports a finding that consumers who encounter the wording ZERO MEAT in connection with Applicant’s services would immediately understand that the services rendered by Applicant ensure or certify that certain food products do not contain any meat."

And so, having no doubt regarding the issue at hand, the Board affirmed the Section 2(e)(1) refusal.

Applicant requested, in the alternative, that the application be returned to the examining attorney so that applicant "may possibly" amend the application to proceed on the Supplemental Register "upon commencement of use of the trademark." No dice, said the Board. Applicant never made such a request while the application was pending, though the examining attorney suggested such an amendment.

The Board pointed out that, once an appeal has been decided, the application may be reopened only to enter a disclaimer, or upon order of the Director. Neither exception applied here.

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TTABlogger comment: Neither applicant nor the Board mentioned that fact that in July 2021, this applicant registered ZERO MEAT on the Supplemental Register for "Food comprised of non-animal content, namely, meat, fish and poultry substitute foodstuffs having no meat, fish, or poultry." [Specimen of use depicted above]. That fact would seem to be relevant to the issue at hand.

Text Copyright John L. Welch 2021.