Canine Caviar Pet Foods, Inc.

Trademark Trial and Appeal Board

Jun 28, 2018

No. 85933157 (T.T.A.B. Jun. 28, 2018)

Mailed: June 28, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Canine Caviar Pet Foods, Inc.
________

Serial No. 85933157

_______

Lindsay J. Hulley of Rutan & Tucker, LLP
for Canine Caviar Pet Foods, Inc.

Brian Pino, Trademark Examining Attorney, Law Office 114
K. Margaret Le, Managing Attorney.
_______

Before Bergsman, Ritchie, and Hightower,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Canine Caviar Pet Foods, Inc. (“Applicant”) seeks registration on the
Principal Register of the mark CANINE CAVIAR, and design, shown below,
for “animal foodstuffs, pet foods, edible pet treats,” in International Class 31:1

1 Application Serial No. 85933157 was filed on May 15, 2013, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging dates of first use and first use in
commerce in February 1997. The mark consists of the stylized wording “CANINE
CAVIAR” and the stylized design of a dog and cat within a circle with the dog wearing
a hat and carrying a covered tray with cloth containing the stylized letters “CC.”
This Opinion Is Not a
Precedent of the TTAB

Serial No. 85933157
2

Applicant includes a disclaimer of “CANINE” in the alternative. The
Examining Attorney has refused registration under Section 2(a) of the
Trademark Act of 1946, 15 U.S.C. § 1052(a), on the ground that the mark
sought to be registered is deceptive in relation to the identified goods. The
Examining Attorney also required a disclaimer of the terms “CANINE” and
“CAVIAR” under Sections 6(a) and 2(e)(1) of the Trademark Act, 15 U.S.C.
§§ 1056(a) and 1052(e)(1), arguing that the terms are either merely descriptive
or deceptively misdescriptive of Applicant’s goods.
When the refusals were made final, Applicant filed an appeal. Applicant
and the Examining Attorney each filed briefs, and Applicant filed a reply brief.
We note at the outset that in a prior decision addressing Section 2(a) and
Section 2(e)(1) refusals and a requirement for a disclaimer of the term
“CANINE,” in Applicant’s mark CANINE CAVIAR, in standard characters
rather than composite form, for the same goods identified in the application
now before us, the Board reversed the Section 2(a) and Section 2(e)(1) refusals,
and affirmed the requirement for the disclaimer. In re Canine Caviar Pet
Foods, Inc., 126 USPQ2d 1590 (TTAB 2018).
A. Section 2(a) Deceptiveness
In accordance with Section 2(a) of the Trademark Act, registration must be
refused if a mark is deceptive in relation to the identified goods. The
Serial No. 85933157
3
Examining Attorney contends, specifically, that the term “CAVIAR” in
Applicant’s mark would be understood by consumers to refer to a type of food
or ingredient which is not in fact included in Applicant’s “animal foodstuffs,
pet foods, edible pet treats.”
The Office has the initial burden of putting forth a prima facie case that a
trademark falls within the prohibition of Section 2(a). In re Budge Mfg. Co.,
857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988). The test for deceptiveness
is: 1) whether the mark misdescribes the goods; 2) if so, whether consumers
would be likely to believe the misrepresentation; and 3) whether the
misrepresentation would materially affect potential purchasers’ decisions to
purchase the product. Id.; see also In re California Innovations, Inc., 329 F.3d
1334, 66 USPQ2d 1853, 1854 (Fed. Cir. 2003); In re White Jasmine LLC, 106
USPQ2d 1385 (TTAB 2013); In re E5 LLC, 103 USPQ2d 1578 (TTAB 2012).
1. Whether the mark misdescribes the goods
In looking at the first element, we must decide whether the term “CAVIAR”
misdescribes the goods for which Applicant seeks registration. We note, in this
regard, that a mark may be held deceptive under Section 2(a) due to the
misdescriptiveness of one of the terms, as long as the mark is then analyzed as
a whole. See In re Budge, 8 USPQ2d at 1260 (LOVEE LAMB deceptive for
“automotive seat covers” that are “wholly made from synthetic fibers”); In re
E5 LLC, 103 USPQ2d at 1579 ( found 2(a) deceptive for “dietary
supplements” that do not contain copper).
Serial No. 85933157
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There are several definitions of “caviar” of record:
Caviar: 1. Processed salted roe of large fish (as sturgeon); 2.
Something considered too delicate or lofty for mass appreciation
– usually used in the phrase caviar to the general; 3. Something
considered the best of its kind.2

Caviar: The salted roe of sturgeon, esp. the beluga, usually
served as an hors d’oeuvre.3

We note that it is not clear whether the latter entry had further, alternative
definitions that were not included by the Examining Attorney, as the page
appears to be cut off. It is apparent from the submission by Applicant,
nevertheless, that there are several alternative definitions for “caviar.”
There is no dispute that Applicant’s goods do not contain caviar (fish roe).
Applicant confirmed in a request for information that “Applicant’s goods do not
contain fish roe.”4 The Examining Attorney therefore argues that the mark is
misdescriptive of the goods under the first prong of Section 2(a) of the
Trademark Act.
Applicant, however, argues that the term is not misdescriptive because the
relevant consumers, when viewing the mark as a whole, are likely to think of
CANINE CAVIAR not in reference to “fish roe” but rather under the

2 Merriam-Webster.com; attached to July 28, 2017 Response to Office Action, at 85.
3 Collinsdictionary.com/dictionary/English; attached to January 31, 2017 Office
Action, at 2. We note that Collins Dictionary offers a British and an American version.
This entry by the Examining Attorney is from the British version, which does not
necessarily evidence perceptions of the term by consumers in the United States. See
In re Manwin/RK Collateral Trust, 111 USPQ2d 1311, 1313 n.18 (TTAB 2014)
(finding such definitions from the British version of Collins Dictionary to be “of little
or no probative value”).
4 January 5, 2017 Request for Reconsideration; 9 TTABVUE 5.
Serial No. 85933157
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alternative definition of “the best of its kind.” In short, consumers viewing the
mark CANINE CAVIAR in relation to Applicant’s pet food products, rather
than thinking that it contains caviar as an ingredient, will think that it is “the
caviar of pet foods,” thus referring to a high quality product.
In support of this argument, Applicant submitted the declaration of an
expert linguist, Professor Robert A. Leonard. Professor Leonard emphasizes
that caviar has more than one common definition, as discussed above,
including that of “high quality” or “superior quality.”5 In this regard, he refers
to dictionary definitions, third-party registrations from which the term
“CAVIAR” is not disclaimed, and online sources.6 Professor Leonard notes that
the term “caviar” has taken on a “metaphorical” meaning, either meant to be
taken seriously or sometimes tongue in cheek, of “the caviar of . . .”.7 Some
examples he gives of online uses specifically in relation to food are Pimento
Dip: The Caviar of the South;8 The Caviar of Cantaloupe;9 The Caviar of Vegan
Treats;10 Bird’s Nest: The Caviar of the East;11 and ‘Caviar of protein’: Old Mill
Creek store stocks exotic meat.12 Additional examples from USPTO records

5 July 28, 2017 Response to Office Action, at 159.
6 Id. at 161-64.
7 Id. at 163-70.
8 Id. at 535.
9 Id. at 581.
10 Id, at 631.
11 Id. at 609.
12 Id. at 636.
Serial No. 85933157
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include THE CAVIAR OF MAINE; TEXAS CAVIAR; and WILD RICE: THE
CAVIAR OF GRAINS.13
Applicant’s mark is not, however, “THE CAVIAR OF PET FOOD,” or “THE
CAVIAR OF CANINES.” Rather, it is CANINE CAVIAR. In considering the
alternative definitions of “caviar,” and its placement in the mark, we consider
the relevant consumers, who would be consumers of the applied-for goods,
“animal foodstuffs, pet foods, edible pet treats,” or typical pet owners in the
United States. We find that some consumers would understand “caviar” to
mean “fish roe,” and based on this understanding of the word it misdescribes a
feature or ingredient of Applicant’s goods, because it refers to an ingredient
which is not in fact present in Applicant’s goods. We also find that other
consumers would understand “caviar” in the context of these goods to mean
something that is superior, which is not misdescriptive of Applicant’s goods.
We turn to the second prong of our analysis for further assessment of the
evidence presented by the parties.
2. Whether consumers would be likely to believe the misrepresentation
For the second prong of the deceptiveness analysis, we ask whether
consumers are likely to believe that the misdescription actually describes the
goods. The Examining Attorney submitted evidence that the applied-for goods,
“animal foodstuffs, pet foods, edible pet treats,” may contain caviar, and that

13 Id. at 188-527; Registration Nos. 2740509, 1607552, and 2511681.
Serial No. 85933157
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pet owners may give caviar to their pets. There are, however, two problems
with the submitted evidence.
First, several of the websites are “cached,” or stored, and Applicant objected
that the sites were not active. As we have noted, the caveat that Internet
printouts must include a date and source/URL applies equally to evidence
submitted by an Examining Attorney in an ex parte case as it does to parties
involved in inter partes cases. See In re Mueller Sports Medicine, Inc., 126
USPQ2d 1584, 1586 (TTAB 2018). Furthermore, an applicant may object to
submitted evidence where the URL is no longer active. See In re Canine Caviar
Pet Foods, 126 USPQ2d at 1595. Applicant here properly submitted evidence
that several of the cached websites relied upon by the Examining Attorney for
evidence were no longer active.14
The second problem with the Examining Attorney’s evidence is that several
of the websites submitted by the Examining Attorney refer to foreign use.15
While evidence of foreign use may in some cases be probative, in this case it
does not serve to tell us the norms specific to pet owners in the United States,
who are the relevant consumers. See In re Bayer Aktiengesellschaft, 82
USPQ2d 1828, 1835 (Fed. Cir. 2007) (“The probative value, if any, of foreign
information sources must be evaluated on a case-by-case basis.”); see also
Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 1208.03
(June 2017).

14 Attached to July 28, 2017 Response to Office Action, at 74, 81, and 83.
15 Attached to June 7, 2016 Final Office Action, at 29, 53.
Serial No. 85933157
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For its part, Applicant submitted declarations stating that the relevant
consumers would not expect caviar to be an ingredient in Applicant’s applied-
for “animal foodstuffs, pet foods, edible pet treats.” In support, Applicant
submitted the declaration of Robert E. Broyles, a long-term consultant in the
animal feed industry, with experience in the registration of products in
compliance with the rules and regulations of the Association of American Feed
Control Officials (AAFCO). Mr. Broyles states that “I am familiar with product
ingredients for pet foods marketed by various companies throughout the
United States. I am familiar with hundreds of ingredients that are used in pet
food.” He adds that “The use of caviar as an ingredient in pet food essentially
is non-existent.”16 Applicant also submitted declarations from two distributors
of Applicant, from the National Sales Director for Applicant, and from the Vice
President and one of the owners of Applicant. Each of these stated that they
are not aware of anyone being deceived or confused into thinking that
Applicant’s CANINE CAVIAR contains caviar, but rather that the mark is
understood as conveying a metaphor for high quality food.17
Despite arguments from the Examining Attorney regarding the nature of
the declarations, we accord them such probative value as they may have, and

16 Attached to July 28, 2017 Response to Office Action, at 100.
17 See Declaration of Sabrina Sierra, dated December 7, 2016, Declaration of Bob
Vella, dated December 6, 2016, Declaration of Gary Ward, dated December 6, 2016,
and Declaration of Brian Zeigler, dated December 7, 2016; attached to July 28, 2017
Response to Office Action, at 850-54.
Serial No. 85933157
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weigh them with the totality of the evidence.18 See Canine Caviar Pet Foods,
126 USPQ2d at 1597.
In analyzing the evidence as a whole, we acknowledge that there is at least
one company, and maybe a few, that offer caviar for pets as a special, luxury
item. However, this is overwhelmed by the countervailing evidence that caviar
is almost never used as an ingredient in pet food, and that after 20 years of use
of CANINE CAVIAR, consumers have not mistakenly believed it to contain
caviar. While we expect most pet owners to cherish their pets, we do not expect
that they consider it to be reasonable to spend over one hundred times the cost
of comparable pet food on a single meal for these treasured creatures.19
In conclusion, we have found with regard to the first prong that the relevant
consumers may understand CANINE CAVIAR to refer to a high quality
product or alternatively to refer to goods that contain caviar (fish roe). Given
the lack of evidence that “animal foodstuffs, pet foods, edible pet treats” is
likely to contain caviar, however, we find that those consumers who perceive
the word “caviar” in the mark CANINE CAVIAR to mean “fish roe” are not
likely to believe that Applicant’s goods contain caviar. Thus the mark is not
deceptive of Applicant’s applied-for goods under Trademark Act Section 2(a).

18 To the extent the declarations, including the declaration of Professor Robert E.
Leonard, contain legal conclusions, our precedent and statutory authority require us
to make our own legal determinations in each case.
19 Evidence of record shows that it may cost as much as “roughly $500 per serving” for
caviar. See Gourmet.com; Attached to January 31, 2017 Office Action, at 8. Applicant’s
specimen lists the “Suggested Retail” of its CANINE CAVIAR dog food at $2.99;
Attached to May 15, 2013 Application, at 4.
Serial No. 85933157
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B. Disclaimer Requirement
We next consider the requirement for Applicant to disclaim the terms
“CANINE” and “CAVIAR” apart from the mark as shown either because they
are merely descriptive or because they are deceptively misdescriptive under
Trademark Act Section 2(e)(1). Under Trademark Act Section 6(a), 15 U.S.C.
§ 1056(a), “[t]he Director may require the applicant to disclaim an
unregistrable component of a mark otherwise registrable,” under Trademark
Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1). TMEP § 1213.08(b) (October 2017);
see also In re Grass GmbH, 79 USPQ2d 1600, 1603 (TTAB 2006).
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the
goods or services. See In re Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987)); see also In re TriVita, Inc., 783 F.3d 872, 114
USPQ2d 1574, 1575 (Fed. Cir. 2015); In re Abcor Dev. Corp., 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978). Whether a term is merely descriptive is
determined not in the abstract, but in relation to the goods or services for which
registration is sought, the context in which it is being used on or in connection
with those goods or services, and the possible significance that the term would
have to the average purchaser of the goods or services because of the manner
of its use. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Serial No. 85933157
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That a term may have other meanings in different contexts is not
controlling. Id. Moreover, it is settled that “[t]he question is not whether
someone presented with only the mark could guess what the goods or services
are. Rather, the question is whether someone who knows what the goods or
services are will understand the mark to convey information about them.”
DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103
USPQ2d 1753, 1757 (Fed. Cir. 2012); In re Tower Tech Inc., 64 USPQ2d 1314,
1316-17 (TTAB 2002). On the other hand, if a mark requires imagination,
thought and perception to ascertain the nature of the goods or services, then
the mark is suggestive. DuoProSS, 103 USPQ2d at 1755 (citing In re Abcor
Dev. Corp., 200 USPQ at 218).
We note that the first two prongs of the Trademark Act Section 2(a)
deceptiveness analysis are the same as the test for whether a mark is
deceptively misdescriptive under Trademark Act Section 2(e)(1). See TMEP §
1203.02(c) (October 2017); In re Budge, 8 USPQ2d at 1260; In re White Jasmine
LLC, 106 USPQ2d at 1394. As discussed in the Section 2(a) deceptiveness
analysis above, we find that the term “CAVIAR” is neither merely descriptive
nor deceptively misdescriptive of the goods since, for the reasons stated above,
consumers are not likely to believe that Applicant’s applied-for “animal
foodstuffs, pet foods, edible pet treats” contains caviar. Thus, there is no need
for Applicant to disclaim the term “CAVIAR.”
Serial No. 85933157
12
As for the term “CANINE,” the Examining Attorney argues that “CANINE”
describes a feature or function of Applicant’s goods, namely that Applicant’s
“animal foodstuffs, pet foods, edible pet treats” includes food for canines, or
dogs.20 The Examining Attorney submitted the following definition of
“CANINE,” in relevant part:
Canine: Of or resembling a dog; doglike.21
Although this is from the “British” version of Collins Dictionary (see discussion
supra), Applicant also submitted a definition:
Canine: a dog.22
There is no dispute that Applicant’s “animal foodstuffs, pet foods, edible pet
treats” includes food for dogs. Indeed the specimen submitted by Applicant is
for dog food:

20 Applicant consented to entry of a disclaimer of the word “CANINE,” in the
alternative, in the event that we find it necessary to the registration of Applicant’s
mark. 14 TTABVUE 13. Thus, we may enter the disclaimer.
21 Collinsdictionary.com/dictionary/English; attached to January 31, 2017 Office
Action, at 9.
22 Dictionary.com; attached to July 28, 2017 Response to Office Action, at 85.
Serial No. 85933157
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Applicant argues nevertheless that, regardless of the meaning of
“CANINE,” the term need not be disclaimed because CANINE CAVIAR is a
unitary mark.23 To support this argument, Applicant submitted the expert
testimony of linguist Professor Robert A. Leonard, as also discussed above.
Professor Leonard testified that the mark is unitary because it is alliterative,
and that it would most readily be understood in the context of Applicant’s
applied-for goods as suggestively referring to high quality pet food. 24

23 14 TTABVUE 9.
24 July 28, 2017 Response to Office Action, at 160.
Serial No. 85933157
14
A mark is considered “unitary” if “the elements of a mark are so integrated
or merged together that they cannot be regarded as separable.” TMEP
§ 1213.05 (October 2017). As such, a unitary mark has a “single and distinct
commercial impression.” Dena Corp. v. Belvedere Int’l Inc., 950 F.2d 1555, 21
USPQ2d 1047, 1052 (Fed. Cir. 1991) (finding EUROPEAN FORMULA and
design for cosmetic products not unitary since “the elements are not so merged
together that they cannot be regarded as separate” and the proximity of the
words to the design feature “does not endow the whole with a single,
integrated, and distinct commercial impression”). Thus, a phrase is unitary “if
the whole is something more than the sum of its parts.” TMEP § 1213.05(b)
(October 2017); see also In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) (SUGAR & SPICE held not merely descriptive of bakery
products); In re Shutts, 217 USPQ 363 (TTAB 1983) (SNO-RAKE held not
merely descriptive of snow removal hand tool). Even Applicant and its
linguistic expert, however, do not argue that there is additional meaning to
CANINE CAVIAR beyond “luxury dog food,”25 or “something luxurious for dogs
(to eat)”26 which is simply the meaning of the two words in the context of
Applicant’s applied-for “animal foodstuffs, pet foods, edible pet treats.”
As for the argument that CANINE CAVIAR is unitary because it is
alliterative, the Examining Attorney submitted numerous examples of third-
party registrations on the Principal Register with CANINE as a term that are

25 Id. at 160.
26 Id. at 171.
Serial No. 85933157
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similarly alliterative and which are registered for similar pet food products,
but where CANINE is disclaimed.27 These include the following:
Mark Registration No. Relevant Goods Disclaimed Term
CANINE
CRUNCHER
3150010 “edible dog
treats”
CANINE
CANINE CARRY
OUTS
1671980 “pet food”

CANINE
CANINE
CATTLE
COMPANY, and
design
2102185 pet treats CANINE and
COMPANY
CANINE
CANDY
2156157 “pet food” CANINE
CANINE
COMPLETE
3533540 “dog food” CANINE
KARMIC
CANINE
4387653 “pet treats” CANINE
CANINE
CATTLE
CORRAL
4628348 “dog biscuits;
dog food”
CANINE
THE CANINE
CRUNCHERY
4567607 “dog biscuits;
dog food”
CANINE
CANINE
CRUMPETS,
and design
4726772 “dog treats” CANINE
CANINE
CROSSING
4816524 “pet food; pet
treats”
CANINE
CANINE CAFÉ 4955530 “pet food; pet
treats”
CANINE
DISHES FOR
DOGS CANINE
KITCHEN, and
design
4884638 “dog food; dog
treats”
FOR DOGS, and
CANINE
CAMP CANINE 4040482 pet products CANINE
CANINE
CORRECT
TABLEFOOD
FOR DOGS
4401026 “dog food” CANINE and
TABLEFOOD
FOR DOGS

27 Attached to December 20, 2016 Denial of Request for Reconsideration at 4-94.
Serial No. 85933157
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Considering the evidence and arguments, we have no doubt that the
relevant public will immediately understand the term “CANINE” as a
separable term to convey information about Applicant’s identified “animal
foodstuffs, pet foods, edible pet treats” (i.e., that the product is dog food), and
that it is merely descriptive thereof. The requirement to disclaim the term
“CANINE” is affirmed.
Decision: The 2(a) refusal to register is reversed. The requirement to
disclaim “CAVIAR” is also reversed.
The requirement to disclaim “CANINE” is affirmed. Because Applicant
consented to entry of a disclaimer in the alternative, the application will
proceed to publication in due course with a disclaimer of the term “CANINE,”
worded as follows: “No claim is made to the exclusive right to use ‘CANINE’
apart from the mark as shown.” See TMEP § 1213.08(a)(i) (October 2017).