Confectionery Arts International, LLC

Trademark Trial and Appeal Board

Sep 30, 2019

86925125 (T.T.A.B. Sep. 30, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed:
September 30, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

Confectionery Arts International, LLC
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Serial No. 86925125
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Daniel R. Cooper of Cooper & Kurz, for Confectionery Arts International, LLC

Erin M. Falk, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Heasley, Dunn, and Hudis,
Administrative Trademark Judges.

Opinion by Dunn, Administrative Trademark Judge:
Confectionery Arts International, LLC (“Applicant”) seeks registration on the
Principal Register pursuant to a claim of acquired distinctiveness under Trademark
Act Section 2(f), 15 U.S.C. 1052(f), of the proposed mark TYLOSE POWDER (in
standard characters, POWDER disclaimed) for “powdered food product in the nature
of a moisture absorbing agent in the nature of gum Arabic and carboxymethyl
cellulose for use in cake decorating applications to produce gum paste, convert
fondant to gum paste, and help sugar paste hold shape by controlling humidity” in
Application Serial No. 86925125
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International Class 30 (application Serial No. 86925125 filed March 1, 2016,
asserting May 1, 1994 as its date of first use anywhere and in commerce).
The Trademark Examining Attorney refused registration of Applicant’s proposed
mark TYLOSE POWDER on the ground that it is generic, and, in the alternative,
merely descriptive without sufficient evidence of acquired distinctiveness to support
registration. Trademark Act Sections 2(e)(1), (f), 45; 15 U.S.C. §§ 1052(e)(1), (f), and
1127.
After the Examining Attorney made the refusal final, Applicant filed a request for
reconsideration and an appeal. Following denial of the request for reconsideration,
the appeal was resumed. Applicant and the Examining Attorney filed briefs. We
affirm the refusal to register.
I. Genericness
A proposed mark is generic if it refers to the class or category of goods and/or
services on or in connection with which it is used. In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001) (citing H. Marvin Ginn
Corp. v. Int'l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed. Cir.
1986)(“Marvin Ginn”)). A generic term is, in fact, “the ultimate in descriptiveness.”
Marvin Ginn, 228 USPQ at 530 quoted in In re La. Fish Fry Prods., Ltd., 797 F.3d
1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015). Such a term can never attain
trademark status because “[t]o allow trademark protection for generic terms, i.e.,
names which describe the genus of goods being sold ... would grant the owner of the
mark a monopoly, since a competitor could not describe his goods as what they are.”
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In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1634 (Fed. Cir. 2016); In
re Merrill Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141,
1142 (Fed. Cir. 1987) quoted in Dial-A-Mattress, 57 USPQ2d at 1810.
Whether a particular term is generic is a question of fact. In re Hotels.com LP, 573
F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009). Resolution of that question
depends on the primary significance of the term to the relevant public. “The critical
issue in genericness cases is whether members of the relevant public primarily use
or understand the term sought to be protected to refer to the genus of goods or services
in question.” Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114
USPQ2d 1827, 1830 (Fed. Cir. 2015) (quoting Marvin Ginn, 228 USPQ at 530).
The genericness inquiry is a two-part test: “First, what is the genus of goods or
services at issue? Second, is the term sought to be registered ... understood by the
relevant public primarily to refer to that genus of goods or services?” In re Reed
Elsevier Props. Inc., 482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007) (quoting
Marvin Ginn, 228 USPQ at 530); see Luxco, Inc. v. Consejo Regulador del Tequila,
A.C., 121 USPQ2d 1477, 1483 (TTAB 2017).
A. Genus
The genus of goods or services may be defined by an applicant's identification of
goods or services. In re Cordua Rests., 118 USPQ2d at 1636; Magic Wand Inc. v. RDB
Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (“[A] proper genericness
inquiry focuses on the description of [goods or] services set forth in the [application
or] certificate of registration.”); In re Rosemount, Inc., 86 USPQ2d 1436, 1437 (TTAB
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2008); TMEP § 1209.01(c)(i). Where the identification of goods is amended to meet
examination requirements, the broader identification may remain the genus, with
the more narrow identification serving as the species. Real Foods Pty Ltd. v. Frito-
Lay N. Am., Inc., 906 F.3d. 965, 128 USPQ2d 1370, 1380 (Fed. Cir. 2018) (“While
recognizing that the amendment narrowed the identification of goods, the TTAB
failed to take into account in its determination of the genus under step one that the
Applications show that popped corn cakes and rice cakes are types of crispbread
slices, which, in turn, the record defines as types of crackers.”).
In this case, the original identification of goods filed by the Applicant was
“powdered food product in the nature of a moisture absorbing agent for use in cake
decorating applications to produce gum paste, convert fondant to gum paste, and help
sugar paste hold shape by controlling humidity”, and the Examining Attorney
required Applicant to amend the identification of goods to specify the type of food
product. As amended, Applicant’s goods are “powdered food product in the nature of
a moisture absorbing agent in the nature of gum Arabic and carboxymethyl cellulose
for use in cake decorating applications to produce gum paste, convert fondant to gum
paste, and help sugar paste hold shape by controlling humidity.”1 During
examination Applicant explained that the “typical consumers of Tylose Powder goods
are cake decorators, sugar professional, and the industrial food market that

1 Because the abbreviation recurs in the evidence, the Board notes that Applicant’s
information sheet for the goods lists CMC as an ingredient in lieu of carboxymethyl cellulose.
February 17 Response, TSDR 5. In a separate response, Applicant states “Those ingredients
are CMC, sugar, de[x]trin. CMC is carboxymethyl cellulose.” October 4, 2017 Response TSDR
2.
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manufactures gum paste, fondant, sugar paste and sugar decorations” and its goods
are “typically purchased at retail stores, though specialty distributors of cake
decorating supplies and decoration, specialty cake decoration supply stores, party
supply stores, pastry ingredients suppliers, and food manufacturing distributors.”
October 4, 2017 Response TSDR 4. The Board also notes Applicant’s further
information about the goods (September 4, 2018 Response, TSDR 13):
Specifically, Applicant's product forms a moisture-absorbing matrix that
provides food preparations, particularly sugar pastes, with enhanced pliability
and elasticity, which enable pastes to hold their form. It can be used to produce
gum paste, fondant and edible gum glue. Applicant's product is neither a gum
paste [nor] a fondant specifically, but is a product used to make gum paste,
fondant, and edible gum glue better and longer lasting.

With respect to defining genus for the purpose of the genericness determination,
the Examining Attorney defines the genus of Applicant’s goods as the amended goods,
which include the type of food product, including the ingredient carboxymethyl
cellulose.2 Applicant contends that this definition is too narrow; that “the genus at
issue is more properly defined by reference to what Applicant’s goods are, not what
they are made from;” and the proper genus of goods is “moisture absorbing agents for
use in the baking industry.”3 While we heed the Federal Circuit’s warning that genus
can be construed too narrowly when we use as the genus an identification of goods
amended to meet examination requirements, Applicant’s suggested genus does not

2 Examining Attorney’s Brief, 12 TTABVUE 7-8. The Trademark Status and Document
Retrieval (TSDR) and TTABVUE citations refer to the two locations on the USPTO website
where the appeal record and briefs can be found, namely the Trademark database for the
involved application and the Board’s electronic docket. All citations to the TSDR database
are to the downloadable .pdf version of the documents.
3 Applicant’s Brief, 10 TTABVUE 18-19.
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make clear the nature of the goods, and thus is too broad. That is, “moisture absorbing
agents for use in the baking industry” could cover a range of goods unrelated to food
products for cake decorating.
We define the genus of Applicant’s goods as a more succinct version of the way
that Applicant originally identified the goods – instead of “powdered food product in
the nature of a moisture absorbing agent for use in cake decorating applications to
produce gum paste, convert fondant to gum paste, and help sugar paste hold shape
by controlling humidity”, we define the genus as “powdered moisture absorbing food
product to make gum paste and sugar paste for cake decorating.” See In re Empire
Tech. Dev. LLC, 123 USPQ2d 1544, 1548 (TTAB 2017) (“We find that ‘flour made
from coffee cherry skins, pulp and pectin,’ a modified version of Applicant's suggested
genus, is more succinct and useful in our analysis under the second Marvin Ginn
inquiry than is the entire identification of the goods in the application, which also
includes language specifying how the goods are made and used.”); In re ActiveVideo
Networks, Inc., 111 USPQ2d 1581, 1600 (TTAB 2014) (“in determining the genus of
Applicant’s goods and services, we need to consider the central focus of Applicant’s
products and services without the confusion of a verbose recitation of the entire listing
of goods and services.”).
B. Public Perception of proposed mark TYLOSE POWDER
We next must determine whether the relevant public understands the proposed
mark TYLOSE POWDER primarily to refer to “powdered moisture absorbing food
product to make gum paste and sugar paste for cake decorating.” As explained by
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Applicant, the consumer of such products uses them to decorate cakes, and purchases
the goods at retail stores, through specialty distributors of cake decorating supplies
and decoration, specialty cake decoration supply stores, party supply stores, pastry
ingredients suppliers, and food manufacturing distributors. The relevant public is
ordinary consumers of “powdered moisture absorbing food product to make gum paste
and sugar paste for cake decorating.” In re Empire Tech. Dev. LLC, 123 USPQ2d at
1548 (“The record includes the various articles regarding cooking and baking with
Applicant's product discussed below, and on that basis we find that the relevant
purchasing public for the genus of flour made from coffee cherry skins, pulp and
pectin consists of persons who use flour for baking or as an ingredient in foods and
beverages, including retailers who sell foods and beverages, restaurants, bakeries,
producers and sellers of foods and beverages, and members of the public who cook
and bake.”).
Turning to the record evidence of public perception, Applicant’s product packaging
specimen puts the proposed mark TYLOSE POWDER in large capital letters on the
front of the goods:

Applicant's Specimen
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In response to the Examining Attorney’s requirement, Applicant provided the
following information about its mark and goods (August 19, 2016 response, TDSR 1):
1. What is Tylose?
It is a fine powder one can work into fondant to make a really quick transition
to gumpaste.
2. How is Tylose used in applicant's food products?
One can use 0.5% to 8.0% of tylose powder by weight with other food products
such as fondant.
3. What is the definition of “Tylose”?
Powdered food grade moisture absorbing agent.
4. Does “Tylose” have any meaning with respect to applicant's applied-for-goods?
No.

Applicant also provided the full label used on its goods.

Applicant's Full Label 1

Below are excerpts from a sample of the online specialty baking store and craft
store websites submitted by the Examining Attorney to show use of the proposed
mark TYLOSE POWDER to name goods that serve the same cake decorating function
as Applicant’s goods, and that demonstrate how potential purchasers encounter the
proposed mark TYLOSE POWDER:
Application Serial No. 86925125
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Tylose Powder Sale Display 1

September 19, 2016 Office Action, TSDR 5.

Application Serial No. 86925125
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Tylose Powder Sale Display 2
September 19, 2016 Office Action, TSDR 15.
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Tylose Powder Sale Display 3
September 19, 2016 Office Action, TSDR 17.

Tylose Powder Sale Display 4
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October 31, 2018 Office Action, TSDR 14.

Sale Display Describing Tylose Powder as “ brand name derivative of CMC powder” 5
October 31, 2018 Office Action, TSDR 17.
The Examining Attorney also included evidence of information available online
regarding the cake decorating applications of the proposed mark TYLOSE POWDER.
The first excerpt is a “Food & Drink” question to “Yahoo Answers” on the composition
of “Tylose powder”:

Online Tylose Powder Article 1
September 19, 2016 Office Action, TSDR 21.
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TYLOSE POWDER also is described in cake decorating blogs, glossaries, and
recipes available online:

Online Tylose Powder Article 2

June 6, 2018 Office Action, TSDR 9.
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Online Tylose Powder Article 3
June 6, 2018 Office Action, TSDR 35.

Online Tylose Powder Article 4
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June 6, 2018 Office Action, TSDR 11.

Online Tylose Powder Article 5
June 6, 2018 Office Action, TSDR 119.

Online Tylose Powder Article 6
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October 31, 2018 Office Action, TSDR 8.

Online Tylose Powder Article 7
October 31, 2018 Office Action, TSDR 22.
In assessing the primary significance of the proposed mark TYLOSE POWDER to
the relevant public, we pay particular attention to the use by Applicant, who asserts
more than 20 years (since 1994) of use of the proposed mark TYLOSE POWDER in
connection with its goods. As set forth above, Applicant uses its proposed mark
TYLOSE POWDER in bold letters on the front of its container as the name of the
goods. This use of the proposed mark TYLOSE POWDER as the name of the goods is
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reinforced by its full label, which twice uses the term “tylose powder” generically,
instructing purchasers that the ingredients for TYLOSE GUM PASTE RECIPE
require “4 tablespoons of CAI Tylose Powder” and, after whipping egg whites and
sugar, instructing to “while mixing add the tylose powder slowly until the mixture
becomes thick.” To be clear, we find that Applicant’s use of the proposed mark
TYLOSE POWDER with the prefatory abbreviation CAI, a shorthand reference to
Applicant Confectionery Arts International LLC, does not indicate proprietary rights
in the proposed mark TYLOSE POWDER.
Instead, the term “CAI Tylose Powder” indicates that Applicant’s trade name also
is its trademark, and “tylose powder” is the name of the goods. In re Gould Paper
Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (Fed. Cir. 1987) (“Gould’s own
submissions provided the most damaging evidence that its alleged mark is generic
and would be perceived by the purchasing public as merely a common name for its
goods rather than a mark identifying the good’s source.”); In re Empire Tech., 123
USPQ2d at 1553 (“While it uses ‘coffee flour’ in prominent stylized lettering, in the
position and manner of a trademark, no separate generic term for the product
accompanies the putative mark.”).
Applicant contends that the term “tylose” was coined by Applicant, and does not
appear in the dictionary, submitting “negative evidence” in the form of dictionary
excerpts which lack an entry for TYLOSE. While a dictionary listing supports a
genericness refusal, the absence of a dictionary definition does not preclude a
genericness refusal. “No dictionary is complete or completely up to date, or tracks the
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language of the marketplace perfectly. A number of generic terms are not found in
dictionaries.” Continental Airlines, Inc. v. United Air Lines, Inc., 53 USPQ2d 1385,
1393 (TTAB 1999) (finding E-TICKET generic for “computerized reservation and
ticketing of transportation services.”).
With respect to the evidence of third party use of “tylose powder” as a kind of CMC
moisture-absorbing powder used in cake decorating, Applicant argues that the
evidence either points to Applicant, is an infringing use, or is not entitled to much
probative weight. Brief, 8 TTABVUE 21. On this first point, when third party use of
“tylose powder” is accompanied by a link to Applicant, the record does not
demonstrate that this is a recognition that “tylose powder” is Applicant’s mark.
Instead, such third party use is a recognition that “tylose powder” is an item that may
be purchased from Applicant. The occasional third party recognition of “tylose
powder” as a “brand name for CMC” is greatly outweighed by the third party generic
references to “tylose powder” as a type of cake decorating food product available from
multiple sources.
Applicant’s characterization of online retailers selling “tylose powder” as
infringers, and its perfunctory dismissal of the evidence of public perception, is not
well taken. Brief, 8 TTABVUE 6, 10, 24-25. Infringement is unproven. While
Applicant states that it has issued four cease and desist letters, the record does not
indicate whether those letters had any impact, resulting in any competitor or court
recognition of Applicant’s asserted rights. See also In re Wella Corp., 565 F.2d 143,
196 USPQ 7, 8 n.2 (CCPA 1977) (evidence competitors may have agreed to
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discontinue use of a term upon threat of legal action shows a desire by those
competitors to avoid litigation, rather than distinctiveness of the term). In addition,
competitor use may be evidence of genericness. See BellSouth Corp. v. DataNational
Corp., 60 F.3d 1565, 35 USPQ2d 1554, 1558 (Fed. Cir. 1995) (“The cases have
recognized that competitor use is evidence of genericness.”) (citing Remington Prods.,
Inc. v. N. Am. Philips Corp., 892 F.2d 1576 , 13 USPQ2d 1444, 1446 (Fed. Cir. 1990));
Continental Airlines, Inc. v. United Air Lines, Inc., 53 USPQ2d at1395 (use of term
“e-ticket” by media and competitors indicates term is generic for electronic tickets);
Philip Morris Inc. v. Brown & Williamson Tobacco Corp., 230 USPQ 172, 176 (1986)
(evidence that competitors have used a particular word as the name of their goods is
persuasive evidence of genericness).
We disagree with Applicant’s contention that the evidence of third party online
use of “tylose powder” from non-retailers is entitled to little probative weight because
it is “unverified, anonymous, or pseudonymous weblog (blog) posts and comments.”
(Applicant’s brief, 10 TTABVUE 23.) The evidence is offered to show how the relevant
public perceives the term “tylose powder.” Applicant does not dispute that the third
party uses included in this opinion are available to the public. “Evidence of the
public's understanding of the term may be obtained from any competent source, such
as purchaser testimony, consumer surveys, listings in dictionaries, trade journals,
newspapers, and other publications.” In re Merrill Lynch, Pierce, Fenner & Smith
Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987). Accordingly, we find the
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online evidence of the use of “tylose powder” in recipes, decorating instructions,
decorating glossaries is probative of the significance of the term to the relevant public.
In fact, we find that the third party evidence shows use of “tylose powder” by cake
decorators, sugar professionals, and the industrial food market— the very prospective
purchasers Applicant described. In the market for cake decorating supplies, the
evidence shows that Applicant is a source for “tylose powder.” However, we find the
preponderance of the evidence makes clear that the relevant public regards “tylose
powder” as a variation on the CMC powder used to create a gum or paste for cake
decorating, and correctly believes that “tylose powder” is available from multiple
sources.
This public perception that “tylose powder” is the name of a powdered moisture
absorbing food product for cake decorating applications has been reinforced by
Applicant’s own use of the term “tylose powder” on its labels as the name of the goods.
In view of all of the evidence of record this evidence, we find that the Examining
Attorney has carried her burden of demonstrating that members of the relevant
public primarily use or understand “tylose powder” to refer to “powdered moisture
absorbing food product to make gum paste and sugar paste for cake decorating.” See
In re Cent. Sprinkler Co., 49 USPQ2d 1194, 1199 (TTAB 1998) ([T]his term is generic
and should be freely available for use by competitors.”).
The refusal of registration on the ground that the proposed mark TYLOSE
POWDER is generic as applied to Applicant’s goods is affirmed.

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II. Descriptiveness and Acquired Distinctiveness
A. Descriptiveness
For the sake of completeness, we also address the refusal to register based on
mere descriptiveness. Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), provides
that a mark is unregistrable on the Principal Register if, “when used on or in
connection with the goods of the applicant [it] is merely descriptive or deceptively
misdescriptive of them ....” A term is 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. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217,
1219 (Fed. Cir. 2012); In re Well Living Lab Inc., 122 USPQ2d 1777, 1779 (TTAB
2017). “[A] word which describes or is the name of an ingredient of a product is merely
descriptive of the product itself within the meaning of Section 2(e)(1) of the Statute.”
In re Westbrae Natural Foods, Inc., 211 USPQ 642, 643 (TTAB 1981) (finding
TAMARI, the Japanese equivalent of “soy sauce”, merely descriptive of one of the two
ingredients in applicant’s product).
On August 19, 2016, Applicant amended its application to disclaim the term
POWDER, and on October 14, 2016, Applicant amended its application to seek
registration pursuant to a Sec. 2(f) claim, asserting its use in commerce since 1994.
A claim of distinctiveness under Sec. 2(f), whether made in the application as filed or
in a subsequent amendment, is construed as conceding that the matter to which it
pertains is not inherently distinctive and, thus, not registrable on the Principal
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Register absent proof of acquired distinctiveness. See Cold War Museum, Inc. v. Cold
War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009)
("Where an applicant seeks registration on the basis of Section 2(f), the mark’s
descriptiveness is a nonissue; an applicant’s reliance on Section 2(f) during
prosecution presumes that the mark is descriptive."); Yamaha International Corp. v.
Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988)
(“Where, as here, an applicant seeks a registration based on acquired distinctiveness
under Section 2(f), the statute accepts a lack of distinctiveness as an established
fact.”).
B. Acquired Distinctiveness
In general, to establish that a term has acquired distinctiveness, an applicant
must show that in the minds of the public, the primary significance of a product
feature or term is to identify the source of the product rather than the product itself.
In re La. Fish Fry Prods., Ltd., 797 F3d 1332, 116 USPQ2d 1262, 1265 (Fed. Cir.
2015). In determining whether an applicant has demonstrated acquired
distinctiveness of the proposed mark for its goods, the Board will examine the
evidence of record, including any evidence of advertising expenditures, sales success,
length and exclusivity of use, unsolicited media coverage, and consumer studies. No
single fact is determinative. In re Tires, Tires, Tires Inc., 94 USPQ2d 1153, 1157
(TTAB 2009). Typically, more evidence is required where a mark is so highly
descriptive that purchasers seeing the matter in relation to the named goods or
services would be unlikely to believe that it indicates source in any one entity. Id.
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In support of its claim of acquired distinctiveness, Applicant relies on its evidence
of sales and product reviews. The sales evidence is invoices for the sale of “Tylose
Powder” and the total purchase amount for the years 2016-2018. January 1, 2019
Response, TSDR 17-64. Each page essentially is identical, varying only in date and
total sale amount.

Sample Applicant Invoice
We give the product reviews little probative weight, as most of them make no
mention of the proposed mark TYLOSE POWDER and are so brief that it is not clear
what the reviewer refers to:
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Review of Applicant's Goods 1
Those few reviews that include “tylose” or “tylose powder” make no reference to
the term as a source indicator:

Review of Applicant's Goods 2
Considering all the evidence of record, we are not persuaded that Applicant’s mark
has acquired distinctiveness. The success of Applicant’s product as shown by
consistent sales over three recent years does not necessarily evince consumers’
recognition of its proposed mark as a source indicator. Mini Melts, Inc. v. Reckitt
Benckiser LLC, 118 USPQ2d 1464, 1480-81 (TTAB 2016). Applicant’s sales evince its
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product’s popularity, not the public’s recognition of its proposed mark as an indication
of origin. In re Bongrain Int'l (Am.) Corp., 894 F.2d 1316, 13 USPQ2d 1727, 1729
(Fed. Cir. 1990). The reviews either do not refer to Applicant’s goods in any way, or
refer to “tylose” or “tylose powder” as the name of the goods; and so do not
demonstrate that the proposed mark TYLOSE POWDER has acquired
distinctiveness as a mark.
The test in determining whether a designation has acquired distinctiveness is
Applicant’s success, rather than its efforts, in educating the public to associate the
proposed mark with a single source. In re LC Trademarks, Inc., 121 USPQ2d 1197,
1208 (TTAB 2016). As the evidence shows, Applicant has undermined its own efforts
by repeatedly using the term “tylose powder” descriptively, even generically, in its
packaging and invoices. Those product reviews that include “tylose powder” use the
term as the name of the goods. Applicant has not carried its burden of showing that
in the minds of the public, the primary significance of its applied-for mark is to
identify the source of the product, rather than the product itself. Accordingly, we find
that Applicant has failed to demonstrate that its applied-for mark has acquired
distinctiveness under Section 2(f) of the Act.
III. Decision
The refusal to register Applicant's proposed mark TYLOSE POWDER on the
ground of genericness is affirmed, as is the alternative refusal on the ground of mere
descriptiveness and an insufficient showing of acquired distinctiveness.