Wednesday, January 09, 2008

Deeming "CREATINE-D2T" a Unitary Mark, TTAB Dismisses Opposition Demanding Disclaimer of "CREATINE"

In a rather unusual inter partes case, the Board dismissed on summary judgment an opposition to registration of the mark CREATINE-D2T for dietary supplements, rejecting Opposer's assertion that the term CREATINE must be disclaimed. Ultimate Nutrition, Inc. v. Nxcare, Inc., Opposition No. 91176206 (January 4, 2008) [not precedential].

Opposer pointed out that it disclaimed the word CREATINE in its own registration for the mark CREATINE SUPREME for dietary supplements, and it asserted that CREATINE is generic.

The Board assumed, without deciding, that CREATINE is either generic or merely descriptive for dietary supplements. It observed that descriptive and generic terms in a mark are unregistrable and therefore subject to disclaimer "unless the matter is merged together with distinctive elements of the mark in such a manner that the resulting composite is 'unitary' and can not be divided into separable elements."

"When a compound word mark is formed by hyphenating two words or terms, one of which would be unregistrable alone, the mark is deemed unitary and no disclaimer is necessary."

The Board found that Applicant’s mark "consists of a compound word mark comprised of the terms CREATINE and DT2 physically connected by a hyphen." It pointed out that none of the terms in applicant's mark stand alone, unlike Opposer's mark. "Based upon all relevant factors, the components in applicant’s mark, including the hyphen, merge in such a way that CREATINE loses its separate, descriptive significance, forming a compound mark with a single, unitary significance."

The Board further observed that registration of CREATINE-D2T "is recognition of applicant’s rights in the entire mark, and neither creates nor recognizes rights in any components of the mark apart from each other."

And so, the Board granted Applicant's motion for summary judgment and dismissed the opposition with prejudice.

Text Copyright John L. Welch 2008.


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