TTABlog Test: Is FOODANALYZER Generic for Food Sensitivity Testing Services?
The USPTO refused to register the proposed mark FOODANALYZER (on the Supplemental Register) for “Diagnostic testing and analysis services for medical diagnostic and treatment purposes, namely, for food sensitivity testing" on the ground of genericness under Sections 23(c) and 45 of the Trademark Act. Applicant Access Medical contended that because food itself is not analyzed, FOODANALYZER cannot be generic. The Board gave that argument limited weight: "Our analysis must focus on the broader record of how the relevant public actually perceives the term FOODANALYZER as a whole." How do you think this appeal came out? In re Access Medical Laboratories, Inc., Serial No. 97708719 (June 9, 2026) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.).
There was no dispute that the relevant genus was co-extensive with applicant's recitation of services, and the Board found the relevant consumers to be ordinary purchasers, users, or providers of such services. The question, then, was whether the relevant public understands FOODANALYZER "as the name of the category of services."
Applicant argued that the Office must prove genericness by "clear evidence," but the CAFC in PT Medisafe, clarified that it has “never held that the examining attorney must find genericness by clear and convincing evidence.” The court explained that “[a] potentially confusing reference to ‘clear evidence’ in the TMEP . . . has recently been clarified and no longer suggests a clear and convincing evidence burden. . . .” The correct standard is a preponderance of the evidence.
The Board found the record evidence to be "mixed." FOODANALYZER is not a dictionary term, nor is it found in in industry glossaries, trade publications, or media articles. There were some third-party references to applicant's branded services, and several third-party uses that appeared to be source-identifying. Applicant itself used the term in a trademark manner.
On the other hand, there was evidence of use of FOODANALYZER appearing in service lists alongside other apparently generic terms. But the "total volume of third-party evidence − approximately fifteen references, some of which describe a test with specifications identical to Applicant's own offering and using the same formatting ('foodAnalyzer') − does not establish that the relevant consuming public understands FOODANALYZER as the generic name for a class of food sensitivity testing services."
We acknowledge that FOODANALYZER bears a close descriptive relationship to the identified services and that “food” and “analyzer” individually have descriptive significance for those services. But descriptiveness, even high descriptiveness, is not tantamount to genericness. Applicant has conceded descriptiveness by seeking a registration on the Supplemental Register. The Examining Attorney must establish something beyond that, namely that the relevant public perceives FOODANALYZER primarily as a category name rather than as a source identifier, even a weak one. On this record, that additional showing has not been made.
The Board found that the limited record evidence "create[s] doubt about whether consumers would perceive [FOODANALYZER] as generic, or rather as capable of indicating source and thus eligible for registration on the Supplemental Register." Resolving that doubt in applicant's favor, the Board reversed the refusal.
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TTABlogger comment: The "mixed record" approach is probably the get-out-of-jail-free card for genericness refusals.
Text Copyright John L. Welch 2026.

















