Bayer Aktiengesellschaftv.Stamatos Mouratidis

Trademark Trial and Appeal Board

May 21, 2010

No. 91185473 (T.T.A.B. May. 21, 2010)

Mailed: May 21, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Bayer Aktiengesellschaft
v.
Stamatios Mouratidis
_____

Opposition No. 91185473
to application Serial No. 77208071
filed on June 17, 2007
_____

Jennifer Fraser and Christina M. Hillson of Connolly Bove
Lodge & Hutz LLP for Bayer Aktiengesellschaft.

Stamatios Mouratidis pro se.
______

Before Quinn, Kuhlke and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman Administrative Trademark Judge:

Bayer Aktiengesellschaft (“opposer”) filed an
opposition to the application of Stamatios Mouratidis
(“applicant”) to register the mark ORGANIC ASPIRIN on the
Principal Register, in standard character form, for “dietary
supplements for human consumption,” in International Class
5. As grounds for opposition, opposer asserted that the
mark ORGANIC ASPIRIN as applied to dietary supplements is
deceptive under Section 2(a) of the Trademark Act of 1946,
THIS OPINION IS NOT CITABLE
AS A PRECEDENT OF THE
T.T.A.B.
Opposition No. 91185473
2
15 U.S.C. §1052(a), and is deceptively misdescriptive under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.§1052(e)(1).
In its answer, applicant admitted that its dietary
supplements do not contain acetylsalicylic acid but
otherwise denied the salient allegations in the opposition.
The Record
By rule, the record includes applicant’s application
file and the pleadings. Trademark Rule 2.122(b),
37 CFR §2.122(b).
Only opposer introduced evidence. Opposer filed a
notice of reliance on the following items:
1. Certified copies of three federally-registered
marks, shown below, owned by opposer, prepared and issued by
the U.S. Patent and Trademark Office showing both the
current status of and current title to the registrations:
a. Registration No. 2063685 for the mark BAYER
and design for “pharmaceutical preparations,
namely anti-fungals, anti-infectives and
anti-hypertensives; vitamin and mineral
supplements; and diagnostic reagents for
medical use,” in Class 5;
b. Registration No. 2065441 for the mark BAYER
for “pharmaceutical preparations, namely
anti-fungals, anti-infectives and anti-
hypertensives; vitamin and mineral
Opposition No. 91185473
3
supplements; and diagnostic reagents for
medical use,” in Class 5; and
c. Registration No. 3345876 for the mark BAYER
NUTRITIONAL SCIENCES for “nutritional
supplements,” in Class 5.
2. Articles from printed publications purporting to
show the prevalence of organic supplements to which
consumers are exposed and which are made available in the
marketplace.
3. Articles from printed publications purporting to
show the health benefits of aspirin.1
4. Applicant’s response to opposer’s interrogatory
No. 11, applicant’s supplemental responses to opposer’s
interrogatory Nos. 2, 10, 14, 15, and 25, applicant’s
response to opposer’s interrogatory No. 54, and applicant’s
supplemental responses to opposer’s interrogatory Nos. 40
and 42.
5. Applicant’s responses to opposer’s requests for
admission Nos. 3-4, 7-10, 14-15, 29-4, 39, 41, 43, 44 and
53-78, applicant’s supplemental response to opposer’s
request for admission No. 80, and applicant’s responses to

1 Opposer submitted articles from two foreign sources: Hindustan
Times (B00420-423) and PR Newswire Europe (B00430-432). Because
opposer offered no testimony regarding why consumers in the U.S.
would encounter these foreign sources, we have not given them any
consideration.
Opposition No. 91185473
4
opposer’s requests for admission Nos. 86-91, 93-95, 98 and
100-104.
6. Excerpts from various websites including, but not
limited to, the Food and Drug Administration and applicant.
7. Dictionary definitions for the words “organic” and
“aspirin.”
Opposer also submitted excerpts from the 1991-2008
Physicians Desk Reference for Nonprescription Drugs
purporting to “show the presence of aspirin and non-aspirin
over-the-counter products in the market place.” However,
the excerpts from the Physicians Desk Reference for
Nonprescription Drugs are evidence only that the products
have been included in the book, not that the products have
been sold or that consumers are aware of the products.
Likewise, the articles from printed publications and
websites have limited probative value because such materials
are probative only for what they show on their face, not for
the truth of matters contained therein. Safer Inc. v. OMS
Investments Inc., 94 USPQ2d 1031, 1040 (TTAB 2010); Syngenta
Crop Protection Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1117
n.7 (TTAB 2009).
The parties have made the following stipulations:
1. Applicant’s goods do not contain acetylsalicylic
acid; and
2. Acetylsalicylic acid is a synthetic compound.
Opposition No. 91185473
5
Standing
As indicated above, opposer has made its federally-
registered marks for, inter alia, vitamin, mineral and
nutritional supplements of record. The registrations
suffice to establish opposer’s commercial interest in this
proceeding and, thus, its standing. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000).
Elements for Proving a Mark is
Deceptive and Deceptively Misdescriptive

Opposer contends that applicant’s mark ORGANIC ASPIRIN
is deceptive and deceptively misdescriptive. The Court of
Appeals for the Federal Circuit has articulated the
following test for whether a mark consists of or comprises
deceptive matter:
1. Is the term misdescriptive of the character,
quality, function, composition or use of the goods?
2. If so, are prospective purchasers likely to
believe that the description actually describes the goods?
3. If so, is the misdescription likely to affect a
significant portion of the relevant consumers’ decision to
purchase?
In re Budge Mfg. Co. Inc., 857 F.2d 773, 8 USPQ2d 1259, 1260
(Fed. Cir. 1988), aff’g 8 USPQ2d 1790 (TTAB 1987).
If the first two questions are answered affirmatively,
the mark is deceptively misdescriptive of the goods under
Opposition No. 91185473
6
Section 2(e)(1) of the Trademark Act. In re Quadry Winery
Inc., 221 USPQ 1213, 1214 (TTAB 1984). The third question,
whether the misdescription is likely to affect the decision
to purchase, distinguishes marks that are deceptive from
marks that are merely deceptively misdescriptive. Id; see
also In re Shniberg, 79 USPQ2d 1309, 1311 (TTAB 2006) (“If
the misdescription is more than simply a relevant factor
that may be considered in purchasing decisions but is a
material factor, the mark would also be deceptive”)
(emphasis in the original).
A. Whether the mark ORGANIC ASPIRIN is misdescriptive of
the character, quality, function, composition or use of
dietary supplements?

Aspirin is “[a] white, crystalline compound … derived
from salicylic acid and commonly used in tablet form to
relieve pain and reduce fever and inflammation. It is also
used as an antiplatelet agent. Also called acetylsalicylic
acid.” (Emphasis in the original).2 In its brief,
applicant concedes that “aspirin is a generic term for the
chemical acetylsalicylic acid.3
“Organic” has the following relevant definitions:
1. Of, relating to, or derived from
living organisms: organic matter.

* * *

2 The American Heritage Dictionary of the English Language,
p. 107 (4th ed. 2000) attached to opposer’s notice of reliance;
see also applicant’s supplemental response to interrogatory No.
15.
3 Applicant’s Brief, p. 4.
Opposition No. 91185473
7
3b. Raised or conducted without the use
of drugs, hormomes, or synthetic
chemicals: organic chicken; organic
cattle farming.4

In his brief, applicant succinctly defines the word
“organic” as “producted without synthetic chemicals.”5
As a starting point for analysis, we observe that for a
term to misdescribe goods, the term must be merely
descriptive of a significant aspect of the goods which the
goods could plausibly possess but in fact do not. In re
Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1051 (TTAB 2002).
We find that it is plausible that dietary supplements could
contain aspirin for its cardiovascular and other health
benefits. See the discussion below. Applicant’s dietary
supplements do not contain acetylsalicylic acid otherwise
known as aspirin.6 Thus, the term “Aspirin” is
misdescriptive of applicant’s goods. See In re ALP of South
Beach Inc., 79 USPQ2d 1009, 1010 (TTAB 2006) (CAFETERIA used
in connection with restaurant services that explicitly
excludes cafeterias is misdescriptive); In re Shapely, Inc.,
231 USPQ 72, 73 (TTAB 1986) (“There is no question that the
presence of the noun ‘silk’ as a prefix renders the mark

4 The American Heritage Dictionary of the English Language,
p. 1239 (4th ed. 2000) attached to opposer’s notice of reliance;
see also applicant’s supplemental response to interrogatory No.
25.
5 Appicant’s Brief, p. 7.
6 Stipulation No. 1; applicant’s supplemental response to
interrogatory No. 2; applicant’s response to request for
admission No. 43.
Opposition No. 91185473
8
SILKEASE misdescriptive of appellant’s blouses and dresses
which contain no silk fibers”).
B. Whether prospective purchasers are likely to believe
ORGANIC ASPIRIN describes applicant’s goods?

Reasonably prudent consumers are likely to believe that
applicant’s ORGANIC ASPIRIN dietary supplements contain
aspirin derived without synthetic chemicals. In fact,
excerpts from applicant’s website, shown below, liken its
product to aspirin, thus, leading consumers to mistakenly
believe that applicant’s dietary supplements include a
naturally occurring aspirin (emphasis added).
Studies have shown that aspirin
(acetylsalicylic acid) consumption
benefits the heart. Salicylates like
aspirin have been used in various forms
since antiquity. Actually, the first
salicylates consumed were all botanical.
The use of naturally occurring
salicylates from plant extracts prompted
the chemical synthesis of aspirin.
Today, all aspirin is synthesized
industrially from phenol (a byproduct or
coal of benzene).

* * *

Organic Aspirin capsules provide you
with salicylates for your heart’s
protection. … Organic Aspirin products
contain exclusively naturally occurring
phytochemicals and salicylates which
later convert into salicylic acid in our
bodies and allow for gentler digestion
than harsher synthetic medications while
at the same time providing a wider range
of benefits.

* * *

Opposition No. 91185473
9
Our products contain salicin from both
botanical forerunners of aspirin.7

History of aspirin (acetylsalicylic
acid, ASA)

Aspirin: Initially people relied on
botanical extracts for their aches and
pains. It was thanks to the healing
properties of a few salicin containing
plants that people realized the value of
salicylates. We sure have come a long
way, and along the way our approach and
reliance to nature has changed. Today,
many medications, including aspirin, are
synthesized from petroleum byproducts.8

Botanical Sources of Organic Aspirin
Products

Organic Aspirin capsules are formulated
to contain salicylates (aspirin-like
phytochemicals), flavonoids, tannins and
heparin from biodiverse sources.9

Applicant’s website also presents the following
comparison of ingredients between ORGANIC ASPIRIN and
synthetic aspirin, thus, implying that there are two types
of aspirin.10

7 Notice of reliance (B00063).
8 Notice of reliance (B00068).
9 Notice of reliance (B00074).
10 Notice of reliance (B00078-79).
Opposition No. 91185473
10

Finally, applicant advertises that its ORGANIC ASPIRIN
is similar to a botanical predecessor of aspirin.
Organic Aspirin capsules contain salicin
from both forerunners of aspirin and
should not be used by those who are
allergic to aspirin, have a
gastrointestinal disorder, tinnitus, are
pregnant, and/or breast-feeding.

* * *

Organic Aspirin capsules contain
naturally occurring salicin, calcium and
phytochemicals, including heparin-like
compounds and tannins.11

Applicant argues to the contrary that ORGANIC ASPIRIN
is not misdescriptive and not deceptively misdescriptive

11 Applicant’s response to request for admission No. 98 (Document
OA0002).
Opposition No. 91185473
11
because the combination of the words “Organic” and “Aspirin”
is incongruous, thus, creating an inherently distinctive
mark.12 This argument is based on the facts that there is
no such thing as organically grown aspirin, that the term
ORGANIC ASPIRIN is not synonymous with aspirin, and that
ORGANIC ASPIRIN has no meaning.13
However, we find that the term ORGANIC ASPIRIN conveys
the literal commercial impression that applicant’s products
are, or contain, a natural aspirin product. The text of
applicant’s websites and advertising noted above reinforces
this commercial impression by contrasting applicant’s
products with synthetic aspirin. As we noted above,
applicant’s advertising leads consumers to believe that
there are two types of aspirin: organic and synthetic.
Furthermore, we do not agree with applicant’s argument
that the incongruous combination of the words “Organic” and
“Aspirin” to form ORGANIC ASPIRIN “reliably dissuades
consumers from believing the goods are made of aspirin,
since such a belief is not plausible.”14 Applicant’s
conclusion is based on the premise that consumers know that
there is no such thing as organic aspirin. Presumably,
dietary supplements are available to all consumers some of
whom may not know that there is no such thing as organic

12 Applicant’s Brief, p. 7.
13 Applicant’s Brief, p. 6.
14 Applicant’s Brief, p. 7.
Opposition No. 91185473
12
aspirin. Moreover, because applicant is advertising that
its dietary supplements are naturally occurring
phytochemicals and salicylates which form salicylic acid and
that they contain salicin from botanical forerunners of
aspirin, applicant is leading consumers to mistakenly
believe that its product is, or contains, aspirin derived
from natural products.
Applicant contends that ORGANIC ASPIRIN is similar to
the facts in In re Robert Simmons, Inc., 192 USPQ 331 (TTAB
1976) where that applicant sought to register the mark WHITE
SABLE for artist’s paint brushes. According to applicant,
“[t]he terms ‘WHITE’ and ‘SABLE’ are similarly at odds with
each other, and the term ‘WHITE SABLE’ is not deceptive on
artist’s paint brushes, in view of the fact that [the]
characteristic color of sable fur is black and the brush is
made of synthetic brush filament.”15 However, in Simmons,
the Board found that the word “sable” when used in
connection with artist’s paint brushes does not “mean
literally a brush whose bristles are made from the hair or
fur of a sable animal.” 192 USPQ at 333. Thus, the term
“White Sable” would not deceive consumers because they do
not believe that brushes would be made from sable fur. In
other words, the Board found that by merely contemplating
the goods involved [paint brushes], consumers reasonably

15 Applicant’s Brief, p.7.
Opposition No. 91185473
13
would be able to draw a correct conclusion about the nature
of the goods. See In re ALP of South Beach Inc.,
79 USPQ at 1012. In this case, however, we find that when
consumers consider applicant’s goods [dietary supplements],
they will believe that applicant’s products contain aspirin
and, thus, the term ORGANIC ASPIRIN mistakenly leads
consumers to believe that applicant’s dietary supplements
contain aspirin derived without the use of synthetic
chemicals.
C. Whether the use of term ORGANIC ASPIRIN is likely to
affect the purchasing decision?

We find that the use of the term “aspirin” in
applicant’s mark ORGANIC ASPIRIN is likely to affect the
purchasing decision because consumers will purchase
applicant’s dietary supplements in the mistaken belief that
the products contain aspirin and, thus, provide the health
benefits of aspirin. The heart-health and cancer preventing
benefits of aspirin have been reported in the Kansas City
Star,16 Obesity, Fitness & Wellness Week,17 and USA Today.18
Also, the U.S. Food and Drug Administration notes that
aspirin may be recommended for treating heart attack,
stroke, certain other cardiovascular conditions,

16 Notice of reliance (B00424).
17 Notice of reliance (B00433) and (B00439)
18 Notice of reliance (B00444). Opposer also introduced articles
from the Medical Letter on the CDC & FDA and the Drug Industry
Daily. However, it is unlikely that consumers for applicant’s
products read these publications and are influenced by them.
Opposition No. 91185473
14
rheumatologic diseases, and for pain relief.19 Applicant
advertises its ORGANIC ASPIRIN as providing anti-
inflammatory and cardiovascular benefits without the
gastrointestinal problems that aspirin can cause.20
Accordingly, the use of the term ORGANIC ASPIRIN to identify
applicant’s dietary supplements is likely to affect the
purchasing decision of consumers who want the benefits of
aspirin from a natural source, as opposed to synthetic
chemicals, without the problems that traditional aspirin may
cause.
In view of the foregoing we find that applicant’s mark
ORGANIC ASPIRIN for dietary supplements for human
consumption is both deceptively misdescriptive under Section
2(e)(1) and deceptive under Section 2(a).
Decision: The opposition is sustained and registration
to applicant is refused.

19 Notice of reliance (B0001).
20 Applicant’s response to request for admission No. 98 (Document
OA0002); Notice of reliance (B00063, 66, 72, 84, and 89).