Tuesday, April 24, 2018

TTAB Affirms Section 2(a) Deceptiveness Refusal of P6 CHROME for Nutritional Supplements

The Board affirmed a Section 2(a) refusal of the mark P6 CHROME, in standard characters, for "dietary and nutritional supplements that do not contain chromium," finding that the mark is deceptive because it misdescribes the goods as containing chromium and that misdescription would likely affect purchasing decisions. Applicant claimed, to no avail, that the word "chrome" merely refers to the color of its packaging. In re Woodbolt Distribution LLC d/b/a Nutrabolt, Serial No. 86627384 (April 18, 2018) [not precedential] (Opinion by Judge Michael B. Adlin).

A mark is deceptive under Section 2(a), and therefore barred from registration, when:
  • (1) it misdescribes the character, quality, function, composition or use of the goods;
  • (2) prospective purchasers are likely to believe that the misdescription actually describes the goods; and
  • (3) the misdescription is likely to affect the purchasing decision of a substantial portion of consumers.
Prong 1: Dictionary definitions submitted by both Examining Attorney Carol Spils and applicant established that "chrome" means chromium. Applicant's assertions during prosecution established that its goods do not contain chromium. Therefore the first prong of the test was met.

Applicant argued that "chrome" has more than one meaning, but the Board pointed out that the term must be considered in the context of the goods at issue. The record includes extensive evidence that many dietary and nutritional supplements contain chromium and are sold under marks which contain the term “CHROME.” 

As to applicant's packaging, many consumers - some of whom will be exposed only to Applicant’s mark and not its “bright metallic trim packaging” - will misperceive the term CHROME as a description of an ingredient in Applicant’s goods.

Prong 2: The evidence that many third-party dietary and nutritional supplements contain chromium also serves to establish the second prong of the test.

The Board agreed with Applicant that dietary and nutritional supplements “are not impulse purchases," but this does not mean purchasers will not believe that Applicant’s goods contain chromium. In fact, sophisticated purchasers are more likely than average consumers to know that chromium is believed to have potential health benefits and that many supplements include chromium and are sold under marks containing the term CHROME.

Prong 3: Evidence from multiple sources indicated that chromium is at least believed to have health benefits. Many third-party supplements are promoted as containing chromium. Therefore, this prong of the test is satisfied as well.

Although some consumers “would not necessarily believe that chromium would be a beneficial ingredient,” the Board had "no hesitation in finding that the requisite 'substantial portion' of prospective supplement consumers would find Applicant’s supplements more desirable because of the perceived representation that they contain chromium." "Indeed, were it otherwise, the market would be unlikely to support so many chromium supplements, let alone so many which are sold under marks that include the terms CHROME or CHROMIUM, which identify one of the products’ ingredients and thus their claimed potential benefits."

Conclusion: All three prongs of the test having been met, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Is this a WYHA?

Text Copyright John L. Welch 2018.


At 10:05 AM, Anonymous Anonymous said...

This decision is a handy reminder that those who recognize a mark's vulnerability to a 2(e)(1) misdescriptive rejection and accordingly plan to follow common tactics (e.g., application or packaging disclaimers, Supplemental Register, 2(f) claim of acquired distinctiveness, etc.), ought to pause and also consider the second and third prongs of the In re Budge test and the mark's potential vulnerability to a 2(a) deceptiveness rejection, for which such tactics are useless.


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