Suspension Letter

United States Patent and Trademark Office (USPTO)

Office Action (Official Letter) About Applicant’s Trademark Application

 

 

 

SUSPENSION NOTICE

No Response Required

 

 

Issue date:  January 08, 2020

 

 

The application is suspended for the reason(s) specified below.  See 37 C.F.R. §2.67; TMEP §§716 et seq. 

 

The pending application(s) below has an earlier filing date or effective filing date than applicant’s application.  If the mark in the application(s) below registers, the USPTO may refuse registration of applicant’s mark under Section 2(d) because of a likelihood of confusion with the registered mark(s). 15 U.S.C. §1052(d); see 37 C.F.R. §2.83; TMEP §§1208.02(c). Action on this application is suspended until the prior-filed application(s) below either registers or abandons.  37 C.F.R. §2.83(c).  Information relevant to the application(s) below was sent previously.

 

            - U.S. Application Serial No(s). 88061242

 

Refusal(s) and/or requirement(s) resolved and maintained and continued. 

 

The following refusal(s) and/or requirement(s) is/are maintained and continued: 

 

            •  Section 2(e)(1) Refusal 

           

See id. This refusal will be made final once this application is removed from suspension, unless a new issue arises.  See TMEP §716.01.

 

In response to the refusal to register, the applicant argues the mark is coined, incongruous and distinctive, and the examining attorney has unacceptably dissected its mark. The applicant’s arguments are not persuasive.

 

The previously attached evidence from the website of Merriam-Webster Dictionary indicates the wording comprising the mark is defined as follows:

 

ALL: the whole amount, quantity, or extent of.

 

AMINO:  relating to, being, or containing an amine group —often used in combination. “Amino acid” is relevantly defined as: an amphoteric organic acid containing the amino group NH2  especially : any of the various amino acids having the amino group in the alpha position that are the chief components of proteins and are synthesized by living cells or are obtained as essential components of the diet.

 

FIZZ: an effervescent beverage.

 

Further, the attachments from the websites of Healthline.com, MedlinePlus.gov, and NCBI (National Center for Biotechnology Information) similarly indicated: 

 

Nine amino acids—histidine, isoleucine, leucine, lysine, methionine, phenylalanine, threonine, tryptophan, and valine—are not synthesized by mammals and are therefore dietarily essential or indispensable nutrients. These are commonly called the essential amino acids.

 

Applicant argues:

 

The Office action provides insufficient evidence to establish that ALL9 AMINO FIZZ is merely descriptive.

 

The applicant’s arguments are not persuasive.

 

In furtherance of the above, the examining attorney attaches the following Internet excerpts for nutritional products emphasizing “all 9 essential amino acids”, including the applicant’s website:

 

http://www.dymatize.com/all-9-amino/: Effectively maintaining and building lean muscle mass requires all nine essential amino acids (EAAs). Ensuring your diet has all nine EAAs can be difficult, so Dymatize® has developed ALL9 AMINO™—our most complete amino acid powder blend for optimal muscle protein synthesis (MPS) and training recovery support.

 

http://www.nowfoods.com/sports-nutrition/amino-9-essentials-powder: NOW® Sports Amino-9 Essentials™ has all 9 essential amino acids in their superior free-form state and in the proportions recommended by the National Academy of Sciences to optimize protein synthesis and tissue repair for adults age 19 and over.

 

http://www.rockhardsupplements.com.au/APN-Essential-Amino-Acids-Atheltic-Performance-Nutrition: APN Essential Amino Acids (EAAs) are a combination of all 9 essential amino acids, Leucine, Isoleucine, Valine, Histidine, Lysine, Methionine, Phenylalanine, Threonine and Tryptophan. Essential Amino Acids are considered the most important for muscle development and repair.

 

http://www.nutrabio.com/product/EAAP/: NutraBio EAA PURE is a full spectrum amino acid drink that supports the repair and rebuilding of muscle during and after intense exercise. Its all-day recovery formula is designed to be sipped throughout the day to keep you in an anabolic state. We’ve included all 9 essential amino acids (EAAs) that are required to maintain and build muscle along with coconut water and AstraGin to give EAA PURE superior hydration and absorption properties to help improve training endurance and deliver nutrients to the muscle.

 

http://www.evogennutrition.com/products/amino-kem: ALL 9 ESSENTIAL AMINO ACIDS– Essential amino acids are the key to unlocking the power of hypertrophy (muscle growth). What helps bolsters Evogen’s EAA matrix is the fact it contains adequate dosages of BCAA’s as well as all nine EAA’s including tryptophan.

 

Applicant argues:

 

… Applicant’s potential consumer is not a medical expert, but an ordinary shopper who will not have detailed medical knowledge about amino acids, even if they are familiar with the meaning of the term “amino.”

 

The applicant’s argument is not persuasive, and misconstrues the proper standard for determining mere descriptiveness. “Whether consumers could guess what the product is from consideration of the mark alone is not the test.”  In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).  The question is not whether someone presented only with the mark could guess what the goods and/or services are, but “whether someone who knows what the goods and[/or] services are will understand the mark to convey information about them.”  DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc.,64 USPQ2d 1314, 1316-17 (TTAB 2002)); In re Mueller Sports. Med., Inc., 126 USPQ2d 1584, 1587 (TTAB 2018).

 

Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods and/or services is the combined mark registrable.  See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).

 

In this case, both the individual components and the composite result are descriptive of applicant’s services and do not create a unique, incongruous, or nondescriptive meaning in relation to the goods.  Specifically, the applicant’s effervescent beverage product contains as an ingredient the whole or complete number of the nine essential amino acids.

 

Marks comprising more than one element must be considered as a whole and should not be dissected; however, a trademark examining attorney may consider the significance of each element separately in the course of evaluating the mark as a whole.  See DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1253, 103 USPQ2d 1753, 1756-57 (Fed. Cir. 2012) (reversing Board’s denial of cancellation for SNAP! with design for medical syringes as not merely descriptive when noting that the Board “to be sure, [could] ascertain the meaning and weight of each of the components that ma[de] up the mark”); In re Hotels.com, L.P., 573 F.3d 1300, 1301, 1304, 1306, 91 USPQ2d 1532, 1533, 1535, 1537 (Fed. Cir. 2009) (holding HOTELS.COM generic for information and reservation services featuring temporary lodging when noting that the Board did not commit error in considering “the word ‘hotels’ for genericness separate from the ‘.com’ suffix”).

 

Applicant argues:

 

The letter string ALL9 with no space (as opposed to ‘all 9’) is unique, distinctive and not in common usage.

 

The applicant’s argument is not persuasive. A novel spelling or an intentional misspelling that is the phonetic equivalent of a merely descriptive word or term is also merely descriptive if purchasers would perceive the different spelling as the equivalent of the descriptive word or term.  See In re Quik-Print Copy Shop, Inc., 616 F.2d 523, 526 & n.9, 205 USPQ 505, 507 & n.9 (C.C.P.A. 1980) (holding “QUIK-PRINT,” phonetic spelling of “quick-print,” merely descriptive of printing and photocopying services); In re Calphalon Corp., 122 USPQ2d 1153, 1163 (TTAB 2017) (holding “SHARPIN”, phonetic spelling of “sharpen,” merely descriptive of cutlery knife blocks with built-in sharpeners); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (holding “URBANHOUZING,” phonetic spelling of “urban” and “housing,” merely descriptive of real estate services); TMEP §1209.03(j).

 

Finally, it is noted that the applicant is the owner of U.S. Registration No. 5629755 for the mark “ALL9 AMINO” for “dietary and nutritional supplements made in whole or in significant part of protein and amino acids.” The mark was registered on the Supplemental Register a little more than one year ago. The present application has merely added the descriptive term FIZZ to a merely descriptive mark that was registered on the Supplemental Register last year.

 

Suspension process.  The USPTO will periodically check this application to determine if it should remain suspended.  See TMEP §716.04.  As needed, the trademark examining attorney will issue a letter to applicant to inquire about the status of the reason for the suspension.  TMEP §716.05. 

 

No response required.  Applicant may file a response, but is not required to do so. 

 

 

/Ronald L. Fairbanks/

Ronald L. Fairbanks

Examining Attorney

Law Office 119

571-272-9405

ron.fairbanks@uspto.gov

 

 

 

United States Patent and Trademark Office (USPTO)

 

USPTO OFFICIAL NOTICE

 

Office Action (Official Letter) has issued

on January 08, 2020 for

U.S. Trademark Application Serial No. 88350889

 

Your trademark application has been reviewed by a trademark examining attorney.  As part of that review, the assigned attorney has issued an official letter.  Please follow the steps below.

 

(1)  Read the official letter.  No response is necessary.

 

(2)  Direct questions about the contents of the Office action to the assigned attorney below. 

 

/Ronald L. Fairbanks/

Ronald L. Fairbanks

Examining Attorney

Law Office 119

571-272-9405

ron.fairbanks@uspto.gov

 

Direct questions about navigating USPTO electronic forms, the USPTO website, the application process, the status of your application, and/or whether there are outstanding deadlines or documents related to your file to the Trademark Assistance Center (TAC).

 

 

 

GENERAL GUIDANCE

·       Check the status of your application periodically in the Trademark Status & Document Retrieval (TSDR) database to avoid missing critical deadlines.

 

·       Update your correspondence email address, if needed, to ensure you receive important USPTO notices about your application.

 

·       Beware of misleading notices sent by private companies about your application.  Private companies not associated with the USPTO use public information available in trademark registrations to mail and email trademark-related offers and notices – most of which require fees.  All official USPTO correspondence will only be emailed from the domain “@uspto.gov.”