TTABlog Test: Is VEGGIES IN EVERY BITE Merely Descriptive of Pasta?

In November 2024, the Board suspended the appeal from a failure-to-function refusal of VEGGIES IN EVERY BITE for "pasta, macaroni and cheese, pasta sauce, pizza, pizza crust, croutons, frozen meals consisting primarily of pasta or rice" and remanded the application to the USPTO for consideration of additional grounds for refusal, including mere descriptiveness under Section 2(e)(1). [TTABlogged here]. The Office then added a mere descriptiveness refusal. Applicant Litehouse on appeal argued that the mark is only suggestive because "it does NOT directly tell the viewer what the goods are, but instead requires the viewer to exercise imagination, thought or perceptions." How do you think this appeal came out? In re Litehouse, Inc., Serial No. 97501419 (March 11, 2026) [not precedential] (Opinion by Judge Angela Lykos).

Litehouse's argument is high on the "Top Ten Losing TTAB Arguments" list: mere descriptiveness is not a guessing game. "The determination of whether a proposed mark is merely descriptive must be made in relation to the goods for which registration is sought, not in the abstract." Bayer, 488 F.3d at 964.

In other words, the question is not whether someone presented only with the proposed mark could guess the goods listed in the identification. Rather, the question is whether someone who knows what the goods are will understand the proposed mark to convey information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254 (Fed. Cir. 2012) (internal citation omitted).

The Board observed that "a proposed mark that refers to an ingredient is merely descriptive." TriVita, Inc., 783 F.3d at 874. The record shows that Applicant’s processed food items are made from vegetables. Litehouse's own website uses the mark descriptively: "Say hello to your new favorite pasta! Our 3-ingredient pasta is filled with veggies in every bite, and takes everything that you love about pasta and levels it up a notch." The Board pointed out that "An applicant’s own 'marketing materials may be … 'the most damaging'' evidence of mere descriptiveness." In re Berkeley Lights, Inc., No. 88895703, 2022 TTAB LEXIS 382, at *17-18. Moreover, competitors commonly use the phrase in advertising their pasta, mac & cheese, and pizza.

The evidence not only shows the phrase “Veggies in Every Bite” as a descriptive phrase used by third-parties but also demonstrates that consumers specifically look for pasta, pizza and rice composed of vegetables in lieu of semolina flour or wheat for nutritional value or other health reasons. Competitors in the food industry should be free to use this merely descriptive language when describing their own items to the public in advertising and marketing materials.

And so, the Board affirmed the Section 2(e)(1) mere descriptiveness refusal, declining to reach the failure to function refusal.

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Text Copyright John L. Welch 2026.