David Dodart

Trademark Trial and Appeal Board

Feb 7, 2002

No. 75469963 (T.T.A.B. Feb. 7, 2002)

2/7/02 Paper No. 12
ejs

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re David Dodart
________

Serial No. 75/469,963
_______

K. S. Cornaby of Jones, Waldo, Holbrook & McDonough for
David Dodart

Kelley L. Wells, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney)
_______

Before Seeherman, Rogers and Drost, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

David Dodart has appealed from the final refusal of
the Trademark Examining Attorney to register SBO as a
trademark for “dietary food supplements.”1 Registration has
been refused pursuant to Section 2(e)(1) of the Trademark
Act, 15 U.S.C. 1052(e)(1), on the ground that the term for
which registration is sought is merely descriptive of the

1 Application Serial No. 75/469,963, filed April 20, 1998, and
asserting first use and first use in commerce on August 31, 1995.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/469,963
2
identified goods, and pursuant to Sections 1, 2 and 45 of
the Act, 15 U.S.C. 1051, 1052 and 1127, on the ground that
the term does not function as a trademark.
Applicant and the Examining Attorney have filed
briefs. Applicant originally requested an oral hearing,
but subsequently withdrew that request.
Before turning to the refusals, we must address an
evidentiary issue. With his response to the first Office
action, filed June 24, 1999, applicant stated that he was
submitting additional specimens. In the next (and final)
Office action, the Examining Attorney advised applicant
that no specimens had been included with the response.
Applicant then, with his appeal brief, submitted three
labels, stating that they had previously been submitted
with the June 24, 1999 response. Normally we would accept
these replacement labels. However, with her appeal brief,
the Examining Attorney has objected to these labels,
stating that “as evidenced by the record these are not the
same specimens which were submitted with the Applicant’s
December 31, 1998 [sic] response.”2 It is not clear how the
Examining Attorney would know that the specimens were not

2 The Examining Attorney apparently misidentified the date; the
Office action to which applicant had responded was dated
December 31, 1998.

Ser No. 75/469,963
3
the same, since in the July 31, 2000 Office action she
stated that no specimens had been submitted. We cannot, on
review of the file, definitively state that the labels
submitted by applicant were not the same as those said to
have been previously submitted. It is possible that they
were submitted but not associated with the file, in which
case the Examining Attorney’s objection that they represent
an impermissible addition to the record would be
inapposite. Accordingly, we have considered them.
We turn first to the refusal on the ground that the
term sought to be registered, SBO, is merely descriptive of
dietary food supplements. In support of this refusal, the
Examining Attorney has made of record printouts from
various websites, including some which, according to
applicant, are “references generated by Applicant and/or
his authorized representatives/sales people/distributors”
(response filed June 24, 1999). The following are excerpts
from these websites:
What are Soil-Based Organisms
SBO’s, or soil-based organisms, are
tiny microbes that live in soil.
According to medical research scientist
Dr. William C. Bryce, M.D., Phd, among
other functions, SBO’s produce and
release powerful enzymes that sterilize
the soil of putrefactive organisms, and
thereby help prepare the soil to
support new plant growth. Without
SBO’s, such plant growth could not take
Ser No. 75/469,963
4
place because the soil would be too
contaminated with yeasts, molds, fungi,
candida and other harmful organisms
that are antagonistic to plant growth
and reproduction. The enzymes produced
by the SBO’s solve this problem by
helping kill off huge amounts of the
harmful elements in the soil.

Most American don’t realize it, but
many forms of SBO’s, as well as their
enzyme, hormone and nutrient by-
products, are unknowingly ingested into
the human system – with very beneficial
effects – when all fresh fruits and
vegetables are eaten. ... Today,
however, human ingestion of SBO’s and
their beneficial by-products is far
less common. This is because modern
agricultural techniques ... tend to
kill off SBO’s on fruits and
vegetables. Nonetheless, SBO’s still
manage to find their way into the human
system today, though in this country
with far less frequency than times
past.
www.naturesbiotics.com
***

In the late 1970’s, an American
scientist named Peter Smith began
conducting phased studies on huge
colonies of soil-based organisms
(SBO’s). Soil-based organisms are
minute microbes that live in soil.
They produce and release powerful
enzymes that prepare and purify soil to
support plant growth. Additionally,
SBO’s simultaneously produce and
release specific nutrients necessary to
accelerate plant development and
reproduction. Many forms of SBO’s, as
well as their enzyme and nutrient by-
products, are consumed when humans eat
fresh, organically grown fruits and
vegetables.
www2.upwardquest.com
Ser No. 75/469,963
5
***

Most health professionals recommend a
blend of varying species of probiotics
that include lactobacillus and
bifidophilus in amounts of from two to
seven billion micro-organisms. More
recently, a variety of soil based
organism (SBO’s) have been discovered
to be extremely beneficial for those
with severe gastrointestinal distress
and compromised immune systems. SBO’s
enhance nutrient absorption by as much
as 50%, and have the ability to get
behind putrefaction that has stuck to
the colon wall and devour it away....
Perhaps the most exciting
characteristic of SBO’s is their
stimulation of the production of
sixteen strains of natural alpha
interferon which are key regulators of
the immune system.
[excerpted from an article entitled
“Probiotics: Friendly Bacteria That Are
Essential to Health,” by Terri L.
Saunders]
http://inannareturns.com

In addition, the Examining Attorney has submitted
pages from a third-party website and an article taken from
the NEXIS database, excerpts of which follow:
ELIXA
...
Our FRIENDLY COLONIZER is a synergistic
formulation in which all ingredients
have been chosen for their ability to
work together to enhance our intestinal
terrain. The foundation for our
FRIENDLY COLONIZER are soil-based
microorganisms. The availability of
beneficial soil-based microorganisms
(SBOs) in our diet has been greatly
reduced through modern agricultural
techniques. SBOs are ingested when we
Ser No. 75/469,963
6
eat fresh, raw, organic plant life
grown in rich soils, which is not all
that common today. Our SBOs have been
selectively breed [sic] to produce
internally the rich, balanced “soil”
that we so often lack.
...
SBOs also stimulate the body’s own
production of alpha-interferon, a key
regulator of our immune response. ...
www.elixa.com

Soil-based Organisms (SBO’s) – This
culture of non-pathogenic bacteria is
native to the human intestines and
absolutely essential in maintaining
good health. These friendly intestinal
flora feed on putrefaction and waste,
fungi, harmful bacteria ....
[taken from a listing of items that
boost the immune system]
“Healthy & Natural Journal,”
December 11, 1998

A mark is merely descriptive, and therefore prohibited
from registration by Section 2(e)(1) of the Trademark Act,
if it immediately conveys knowledge of the ingredients,
qualities, or characteristics of the goods with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987).
We find that SBO is merely descriptive in that it
immediately conveys to purchasers knowledge of an
ingredient of applicant’s dietary food supplements. A
review of the material of record shows that SBO would
immediately be recognized by the relevant public as the
equivalent of “soil based organisms.” Applicant himself
Ser No. 75/469,963
7
has acknowledged that “soil based organisms” are
ingredients in dietary food supplements. “It is clearly
recognized that Appellant was the first to recognize and
identify soil based organisms and to use them in dietary
food supplements.” Brief, p. 3. Although applicant states
that it coined the term “soil based organisms,” the manner
in which it has been used by applicant, his affiliates, and
third parties, is as the common name for the micro-
organisms. Moreover, the term SBO is used by applicant,
his affiliates and third parties as an equivalent term to
“soil based organisms.” Although applicant argues that any
recognition by the industry of the term SBO came about as a
result of applicant’s “legitimate use of its [sic] mark SBO
in commerce as a Mark for any [sic] ingredient in its
Dietary Food Supplement, identified as NATURE’S BIOTICS®,”
brief, p. 2, we disagree. It is clear from the submitted
material that the manner in which applicant and/or his
distributors and marketers use SBO is not as a trademark,
but as an abbreviation for the phrase “soil based
organisms.” Just as the term “soil based organisms” would
be merely descriptive of an ingredient in a dietary food
supplement, the term SBO, its equivalent, is similarly
merely descriptive.3

3 The Examining Attorney did not raise the question as to
Ser No. 75/469,963
8
The second ground for refusal is that SBO, as used by
applicant, fails to function as a trademark for dietary
food supplements. In order to determine whether a term
functions as a trademark, we must consider how it would be
perceived by the consuming public. To do that, we must
look to the manner in which applicant is using the asserted
mark. In re Volvo Cars of North America Inc., 46 USPQ2d
1455 (TTAB 1998).
Applicant has furnished three sets of specimens, all
of which are labels for “A Dietary Supplement” on which the
trademark NATURE’S BIOTICS appears most prominently. Above
that trademark is the trade name “Life Science Products,
Inc.” On one side of the box bearing this mark and trade
name are two paragraphs indicating “Suggested Use.” On the
other side is a list of ingredients, which bears the
caption, “INGREDIENTS.” These ingredients are printed in
type so small that many people would have difficulty making
out the words. A photocopy of the label applicant
submitted with his appeal brief is reproduced below in
actual size.4

whether applicant’s identification of goods as “dietary food
supplement,” rather than “ingredient in a dietary food
supplement” was correct, and therefore this issue is not before
us on appeal.
4 There are two other sets of labels on the specimen page of the
application, showing slightly different versions of the label.
It is likely that one set was submitted with the original
Ser No. 75/469,963
9

Under the word “INGREDIENTS” appears the following
list: “Lactobacillus Acidophilus, Bifidobacterium Bifidim,
Bacillus Lichenformis, Bacillus Subtilis, Lactobacillus
Lactis, Lactobacillus Bulgaricus, symbiotized in a
proprietary SBO host medium of minerals and trace
elements.
This usage by applicant does not show SBO as a
trademark. Not all words or symbols used in the sale of
goods function as trademarks. To function as a trademark,
a term must be used in a manner which projects to

application, and possible that the other set was submitted by
applicant with his response filed June 24, 1999, and detached by
clerical staff at the United States Patent and Trademark Office
from the response and transferred to the specimen page, which
would explain why the Examining Attorney reported, in the
July 31, 2000 Office action, that she was unable to find
specimens with the response. In any event, one set of these
other labels is identical to the labels submitted with
applicant’s appeal brief, except that they do not have a TM
symbol placed next to the term SBO. The other set is extremely
similar to the other two, except that it does not contain a table
of nutrition facts, and the ingredients therefore are more spread
out. This set, too, does not display a TM next to SBO.
Ser No. 75/469,963
10
purchasers a source of the goods. In re Morganroth, 208
USPQ 284 (TTAB 1980).
As shown in applicant’s labels, which are the only
evidence we have of applicant’s asserted trademark use, the
term SBO is barely noticeable. Rather, it is virtually
hidden in the list of ingredients. Even assuming that
consumers would read the list and persevere long enough to
reach the reference to SBO, they will not regard SBO as a
trademark for dietary food supplements. Instead, the term
SBO appears in an informational manner, and advises
consumers as to the manner in which the ingredients are
combined, i.e., they are symbiotized in a proprietary SBO
host medium of minerals and trace elements. Because SBO
means soil-based organism, and the consumers for this
product would be aware of this meaning, they would regard
SBO as simply indicating that a unique or proprietary mix
is the host medium used to symbiotize the soil based
organisms which are the ingredients in applicant’s product.
The fact that applicant uses the word “proprietary” and the
TM symbol in connection with SBO does not cause SBO to be
viewed as a trademark for his dietary food supplement, or
even for an ingredient in his dietary food supplement. The
word “proprietary” modifies “SBO host medium,” such that
Ser No. 75/469,963
11
while the medium may be seen as a creation of applicant,
the acronym SBO will not be.
Applicant points out that SBO is depicted in all
capital letters on the label. Although this is true, and
it is also true that trademarks are generally depicted in
capital letters, it does not follow that all terms depicted
in capital letters will be viewed as a trademark. Terms
that are acronyms, as SBO is an acronym for soil based
organisms, are generally depicted in all capital letters
too. The same is true with respect to applicant’s use of
the TM symbol. The mere addition of a TM symbol does not
magically transform into a trademark a descriptive term
which appears in a list of ingredients.
Decision: The refusals on the grounds that the term
sought to be registered is merely descriptive and does not
function as a mark are affirmed.