No. 85391121 (T.T.A.B. May. 30, 2013)

Dynamic Sports Nutrition, LLC

Trademark Trial and Appeal BoardMay 30, 2013

No. 85391121 (T.T.A.B. May. 30, 2013)

Mailed: May 30, 2013 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Dynamic Sports Nutrition, LLC ________ Serial No. 85391121 _______ John S. Egbert of Egbert Law Offices PLLC, for Dynamic Sports Nutrition, LLC. John D. Dalier, Trademark Examining Attorney, Law Office 106 (Mary I Sparrow, Managing Attorney). _______ Before Quinn, Ritchie, and Gorowitz, Administrative Trademark Judges. Opinion by Ritchie, Administrative Trademark Judge: Dynamic Sports Nutrition, LLC (“applicant”) filed an application to register on the Principal Register the mark PROVIRON for “dietary and nutritional supplements,” in International Class 51. The examining attorney refused registration of the application under Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a), on the ground 1 Application Serial No. 85391121 was filed on August 5, 2011, pursuant to 15 U.S.C. § 1052(b), alleging a bona fide intent to use in commerce. THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Serial No. 85391121 2 that the mark sought to be registered consists of deceptive matter in relation to the identified goods. When the refusal was made final, applicant filed an appeal. Applicant and the examining attorney each filed briefs, and applicant filed a reply brief. In accordance with Section 2(a) of the Trademark Act, registration must be refused if a mark is deceptive of a feature or an ingredient of a mark. In re Budge, 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988) (LOVEE LAMB deceptive for “automotive seat covers”). The test 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. at 1260. See also In re E5 LLC, 103 USPQ2d 1578 (TTAB 2012); In re White Jasmine LLC, 106 USPQ2d 1385 (TTAB 2013). In looking at the first element, the examining attorney contends that the letters “i-r-o-n” in applicant’s mark would be understood by consumers to refer to the chemical element “iron,” which is not in fact included in applicant’s “dietary and nutritional supplements.” Applicant has admitted in its March 27, 2012 Response to Office Action, “Applicant notes for the record that the Serial No. 85391121 3 goods in the application do not consist of dietary supplements that contain iron.” Again in its August 8, 2012 Response to Office Action, applicant stated: “Applicant notes, once again for the record that the goods in the application do not consist of dietary supplements that contain iron.” The examining attorney contends that applicant’s admissions are sufficient to satisfy the first prong of the test set forth in In re Budge, showing that applicant’s mark is misdescriptive of its applied-for goods since the mark contains the letters “i-r-o-n” but the goods identified do not contain “iron.” In this regard, the examining attorney argues that consumers would likely pronounce the mark as “PROV-IRON” or “PRO-V-IRON.” Applicant, on the other asserts that it is irrelevant that the goods do not contain “iron,” and as to pronunciation, the mark is a “coined term” that consumers would be more likely to pronounce as “PRO-VI-RON” OR “PRO-VIRON.” It is settled law that there is no correct pronunciation of a trademark. In re Teradata Corp., 223 USPQ 361, 362 (TTAB 1984). In this regard, we note that with a standard character mark that may be displayed in any number of ways, applicant may, indeed, display the mark in such a manner as to emphasize the letters “i-r-o-n.” See In re Viterra Serial No. 85391121 4 Inc., 671 F.3d 1358, 101 USPQ2d 1905 (Fed. Cir. 2012), citing Citigroup Inc. v. Capital City Bank Group Inc., 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (“If the registrant ... obtains a standard character mark without claim to ‘any particular font style, size or color,’ the registrant is entitled to depictions of the standard character mark regardless of font, style, size, or color.”). In this way, consumers would be likely to pronounce applicant’s mark like the chemical element “iron.” This seems particularly so, given the nature of the goods at issue, dietary and nutritional supplements. See In re E5 LLC, 103 USPQ2d 1578 (TTAB 2012) (“We note in this regard that how consumers will understand the meaning of the term ‘CU’ must be evaluated in relation to the goods for which registration is sought.”) We find, therefore, that the mark is misdescriptive of the goods, and the first prong has been satisfied. For the second prong of the deceptiveness analysis, we ask whether consumers are likely to believe that the misdescription actually describes the goods. In this regard, the examining attorney submitted the following evidence that the chemical element iron is often included as an ingredient of dietary and nutritional supplements, or is itself a supplement. Serial No. 85391121 5 WebMD: Dietary Iron and Iron Supplements: Why do people take iron? Iron supplements are most often used for certain types of anemia. Anemia is a low level of red blood cells that can cause fatigue and other symptoms. WebMD. Attached to April 23, 2012 Office Action, p.4. Iron Supplement: Iron is a mineral that the body needs to produce red blood cells. When the body does not get enough iron, it cannot produce the number of normal red blood cells needed to keep you in good health. This condition is called iron deficiency (iron shortage) or iron deficiency anemia. . . . This product is available in the following dosage forms: Tablet, chewable; Liquid; Tablet; Capsule; Solution . . . Mayo Clinic. Attached to April 23, 2012 Office Action, p.3. Iron supplements are recommended by doctors when dietary intake of iron cannot restore a person’s iron levels to normal in a satisfactory timeframe. However, the dose of iron your physician prescribes depends on your current storage level of iron, hemoglobin and the type of iron they want you to take. Attached to September 12, 2012 Office Action, p.2. Alibaba.com. Attached to September 12, 2012 Office Action, p.4 [image from webstie below] Serial No. 85391121 6 We find that the evidence shows consumers would be likely to believe the misdescription, and the second prong has been satisfied. For the third prong of the deceptiveness analysis, we ask whether the misdescription is material to consumers’ decisions to purchase the goods. See In re Budge, 8 USPQ2d at 1260. The examining attorney has submitted the following evidence to show that the intake of the chemical element iron is necessary for a person’s health: What is iron and why do we need it?: Iron is a mineral needed by our bodies. Iron is a part of all cells and does many things in our bodies. For example, iron (as part of the protein hemoglobin) carries oxygen from our lungs throughout our bodies. Having too little hemoglobin is called anemia. Iron also helps our muscles store and use oxygen. Centers for Disease Control and Prevention. Attached to September 12, 2012 Office Action, p.3. Dietary Supplement Fact Sheet: Iron, one of the most abundant metals on Earth, is essential to most life forms and to normal human physiology. Iron is an integral part of many proteins and enzymes that maintain good health. Office of Dietary Supplements: National Institutes of Health; Attached to November 19, 2011 Office Action, p.2. Iron Nutrition and Exercise: Iron deficiency is the most common single deficiency disease in the world and is a major concern for approximately 15 percent of the world’s population. . . . Clearly, iron intake is dependent on food composition and Serial No. 85391121 7 quantity of iron therein, with a number of inhibitors and a smaller number of enhancers of iron absorptions now known to exist. Healthy.net. Attached to April 23, 2012 Office Action, p.6. Accordingly, we find the misdescription to be material. In conclusion, with all prongs of the In re Budge test satisfied, we find applicant’s PROVIRON mark to be deceptive within the meaning of Section 2(a). Decision: The 2(a) refusal to register is affirmed.