TTAB Reverses Specimen Refusal: One Specimen May Support Products in Multiple Classes

The Board reversed a refusal to register the mark AGE IQ for various medicated skin care products, finding Applicant's specimens of use to be acceptable. The Examining Attorney contended that the specimens were faulty because they did not describe the goods as "medicated," and because Applicant had used the same specimen in a co-pending application for non-medicated cosmetics. In re CGTN C.V., Serial No. 87448330 (July 13, 2022) [not precedential] (Opinion by Judge Cindy B. Greenbaum). 

The Board observed that a single product may serve multiple purposes. For example, salt may be used both for food purposes and for use in chemical industries. So, too, applicant's skin care  products may serve both a cosmetic (class 3) and a medical (class 5) purpose, and so a single specimen may support both.

On this record, there is no reason to believe that the day cream and night cream displayed on the original specimen (which also supported Applicant’s use of the mark for Class 3 products in the copending application) does not serve a dual purpose, both cosmetic and medicated.

The Examining Attorney pointed to Applicant’s webpage for its sunscreen product as evidence that “the ingredients are not medicated” and “the packaging does not include any ‘drug facts’ that usually appear on medicated goods or explanation about the ingredients that make the product ‘medicated.’” The Board, however, found no authority for the assertion that the word "medicated" must appear on the specimen of use.

And so, the Board reversed the refusal to register.

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TTABlogger comment:  Seems reasonable for the Examining Attorney to question how a product can be both medicated and non-medicated. The salt example is not parallel.

Text Copyright John L. Welch 2022.