Earth Animal Ventures LLC

Trademark Trial and Appeal Board

Apr 23, 2018

No. 87006211 (T.T.A.B. Apr. 23, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 23, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Earth Animal Ventures LLC
_____

Serial No. 87006211
_____

Steven J. Grossman and Abigail R. Zeller and of Grossman, Tucker, Perreault &
Pfleger, for Earth Animal Ventures LLC.

Zhaleh Delaney, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Zervas, Bergsman and Lynch,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Earth Animal Ventures LLC (“Applicant”) seeks registration on the Principal
Register of the mark COMPOSITE CUBES (in standard characters) for “nutritional
supplements for pets,” in Class 5.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that

1 Application Serial No. 87006211 was filed on April 19, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
Serial No. 87006211
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the mark COMPOSITE CUBES for “nutritional supplements for pets” is merely
descriptive. According to the Examining Attorney, COMPOSITE CUBES directly
imparts to consumers that the nutritional supplements for pets are a composite of
more than one element or ingredient in the form of a cube.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address an evidentiary matter.
Based on the content of the web pages or their Internet addresses, we find that many
of the websites submitted by the Examining Attorney are from entities located
outside of the United States.3 In appropriate circumstances, web pages posted abroad
may be probative on how a term is perceived. See In re Remacle, 66 USPQ2d 1222,
1224 n.5 (TTAB 2002) (Board found that professionals in certain fields, such as

2 Examining Attorney’s Brief (11 TTABVUE 7).
3 Citations to the TSDR database are to the downloadable .pdf format.
Mossop Natural Remedies (mynaturalhealthmarketplace.com) (August 5, 2016 Office Action
at TSDR 17) is a website from the United Kingdom with prices posted in English pounds;
WorldOfInternetCafes.de (August 5, 2016 Office Action at TSDR 20) is a German website in
English with prices posted in Euros;
Pet Connection (petconnection.ie) (September 6, 2017 Denial of the Request for
Reconsideration at 5 TTABVUE 15) is an Irish website with prices posted in English pounds;
Your Pet Store (pet.kiwi) (September 6, 2017 Denial of the Request for Reconsideration at 5
TTABVUE 17) is a New Zealand website; and
Facebook posting from Global Pet Foods, a company located in Calgary, Canada (September
6, 2017 Denial of the Request for Reconsideration at 6 TTABVUE 10).
Serial No. 87006211
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medicine, engineering, computers and telecommunications would be likely to monitor
developments in their fields without regard to national boundaries, and that the
Internet facilitates such distribution of knowledge, so evidence from an English
language web site in Great Britain held admissible); cf. In re Cell Therapeutics, Inc.,
67 USPQ2d 1795, 1797-98 (TTAB 2003) (relying on NEXIS® items from foreign wire
services to support a refusal and distinguishing earlier decisions that accorded such
evidence little probative value given the sophisticated public and the widespread use
of personal computers that increase access to such sources). In this case, we find no
basis to conclude that the foreign websites, even if in English, would be encountered
by the relevant consumers in the United States. See Stuart Spector Designs, Ltd. v.
Fender Musical Instruments Corp., 94 USPQ2d 1549, 1552 (TTAB 2009) (striking
from evidence excerpts from foreign publications which were not shown to be in
general circulation in the United States). The Examining Attorney provided no
evidence or explanation as to why, or the circumstances under which, a U.S.
consumer would access one of the foreign websites to purchase nutritional
supplements for pets or whether the consuming public in the United States is likely
to have been exposed to the foreign websites. Moreover, it is not clear whether such
products may be imported into the United States. Accordingly, we have not
considered the foreign websites in our analysis.
Serial No. 87006211
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Also, the Examining Attorney submitted the same evidence multiple times.4
Submitting the same evidence a second time is not necessary because the evidence is
already in the record.
II. Applicable Law
A mark is merely descriptive of goods 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. In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); see also, In re Gyulay, 820 F.2d 1216,
3 USPQ2d 1009 (Fed. Cir. 1987). Whether a mark is merely descriptive is determined
in relation to the goods for which registration is sought and the context in which the
mark is used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp.,
588 F.2d 811, 200 USPQ2d 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222,
1224 (TTAB 2002). In other words, we evaluate whether someone who knows what
the goods 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). A mark need not immediately convey an idea of each and every
specific feature of the goods in order to be considered merely descriptive; it is enough
if it describes one significant attribute, function or property of the goods. See In re

4 Serrapeptase Online website (serrapeptase.com) attached to the August 15, 2016 Office
Action (TSDR 14) and the February 12, 2017 Office Action (TSDR 18); and
Mossop Natural Remedies (mynaturalhealthmarketplace.com) attached to the August 5,
2016 Office Action (TSDR 17) and the February 12, 2017 Office Action (TSDR 24).
Serial No. 87006211
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Gyulay, 3 USPQ2d at 1010; In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); In
re MBAssociates, 180 USPQ 338, 339 (TTAB 1973).
When two or more merely descriptive terms are combined, the determination of
whether the combined mark is also merely descriptive turns on whether the
combination of terms evokes a non-descriptive commercial impression. If each
component retains its merely descriptive significance in relation to the goods or
services, the combination results in a composite that is itself merely descriptive. In
re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004)
(quoting Estate of P.D. Beckwith, Inc. v. Commr., 252 U.S. 538, 543 (1920)); see also
In re Tower Tech, Inc., 64 USPQ2d 1314, 1318 (TTAB 2002) (SMARTTOWER merely
descriptive of commercial and industrial cooling towers); In re Sun Microsystems Inc.,
59 USPQ2d 1084, 1087 (TTAB 2001) (AGENTBEANS merely descriptive of computer
programs for use in developing and deploying application programs).
On the other hand, a mark comprising a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
non-descriptive meaning, or if the composite has an incongruous meaning as applied
to the goods or services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ 363,
365 (TTAB 1983) (SNO-RAKE for “a snow removal hand tool having a handle with a
snow-removing head at one end, the head being of solid uninterrupted construction
without prongs”). In this regard, “incongruity is one of the accepted guideposts in the
evolved set of legal principles for discriminating the suggestive from the descriptive
Serial No. 87006211
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mark.” In re Shutts, 217 USPQ at 365; see also In re Tennis in the Round, Inc.,
199 USPQ 496, 498 (TTAB 1978) (the association of applicant’s mark TENNIS IN
THE ROUND with the phrase “theater-in-the-round” creates an incongruity because
applicant’s services do not involve a tennis court in the middle of an auditorium).
Thus, we must consider the issue of descriptiveness by looking at the mark in its
entirety.
It is the Examining Attorney’s burden to show, prima facie, that a mark is merely
descriptive of an applicant’s goods or services. In re Gyulay, 3 USPQ2d at 1010; In re
Accelerate s.a.l., 101 USPQ2d 2047, 2052 (TTAB 2012). If such a showing is made,
the burden of rebuttal shifts to the applicant. In re Pacer Tech., 338 F.2d 1348,
67 USPQ2d 1629, 1632 (Fed. Cir. 2003). The Board resolves doubts as to the mere
descriptiveness of a mark in favor of the applicant. In re Stroh Brewery Co.,
34 USPQ2d 1796, 1797 (TTAB 1994).
First, we examine the evidence to determine the meanings ascribed to the
components of Applicant’s mark – the words “Composite” and “Cubes” – and then we
examine the evidence to determine the meaning of the mark COMPOSITE CUBES
in its entirety when it used in connection with Applicant’s goods. “[I]t is entirely
acceptable to consider the component parts of a composite mark when divining the
likely perception of the composite.” In re Petroglyph Games Inc., 91 USPQ2d 1332,
1336-37 (TTAB 2009).
Serial No. 87006211
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The word “Composite” is defined, inter alia, as “made up of various parts or
elements.”5 The evidence discussed below shows that third parties use the word
“Composite” in keeping with its dictionary meaning in the context of nutritional
supplements. (Emphasis added).
• True Fitness website (shop.truefitness.com)
A basic introduction to common workout supplements
(November 24, 2014)
* * *
Glutamine is included in many composite supplements
and is found in adequate amounts in most balanced diets,
but can also be bought as an isolated formula.6
• Serrapeptase Online website (serrapeptaseonline.com) advertises
Blockbuster AllClear, a “Composite Serrapeptase Supplement.”7
• NUTRIENTCOR website (nutrientcor.com) advertising Joint Advantage
Gold, “a composite supplement formula” that “contains seven major
groups of ingredients.”8
• Nutra Ingredients-USA.com website
Composite of turmeric and mulberry may aid arthritis,
rat study (February 4, 2016)
An independent study conducted by botanical supplements
manufacturer Unigen found that pain and inflammation in

5 Oxford Dictionaries (oxforddictionaries.com) (TSDR 5) attached to the August 15, 2016
Office Action.
6 August 15, 2016 Office Action (TSDR 13).
7 August 15, 2016 Office Action (TSDR 14).
8 February 12, 2017 Office Action (TSDR 22).
Serial No. 87006211
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rats with paw edema were alleviated with a turmeric and
mulberry composite supplement.
The composite UP1304 is made out of ethanol extracts of
Curcuma longa (turmeric root) and Morus alba (white
mulberry) root bark, one of Unigen’s proprietary
combinations patented as Romatol.9
• Three third-party registrations consisting in part of the word
“Composite[s]” for nutritional supplements registered on the Supplemental
Register or where the registrant disclaimed the exclusive right to use the
word “Composite.”10
Registration No. 3728368 for the mark HPP 24-7 COMPOSITE-BAR for
“vitamin and mineral supplement formed and packaged as bars” with a
disclaimer of “Composite-Bar”;

Registration No. 4381421 for the mark INTEGRATED NUTRITIONAL
COMPOSITES for “dietary and nutritional supplements” on the
Supplemental Register; and

Registration No. 4389830 for the mark MULTI RELEASE NUTRITIONAL
COMPOSITES for “dietary and nutritional supplements” registered on the
Supplemental Register.

Third-party registrations can be used in the manner of a dictionary to illustrate how
a term is perceived. Institut Nat’l Des Appellations D’Origine v. Vintners Int’l Co., 958
F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992) (“Such third party registrations
show the sense in which the word is used in ordinary parlance and may show that a
particular term has descriptive significance as applied to certain goods or services.”);
Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 198 USPQ 151,

9 February 12, 2017 Office Action (TSDR 27).
10 February 13, 2017 Office Action (TSDR 9-17).
Serial No. 87006211
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153 (CCPA 1978) (“we find no error in the citation of nine third-party registrations
‘primarily to show the meaning of * * * [‘zing’] in the same way that dictionaries are
used’”) (quoting Conde Nast Publn’s, Inc. v. Miss Quality, Inc., 507 F.2d 1404, 184
USPQ 422, 425 (CCPA 1975)).
We find that “Composite” describes a feature of nutritional supplements,
including nutritional supplements for pets, namely that the nutritional supplements
are composed of more than one ingredient.
The word “Cube” is defined, inter alia, as “a symmetrical three-dimensional shape,
either solid or hollow, contained by six equal squares.”11 The evidence discussed below
shows that third parties use the word “Cubes” in the context of nutritional
supplements or animal feed in its dictionary sense. (Emphasis added).
• Big Tex Feed & Pet Supply website (bigtexfeed.com)
Big Tex Feed Alfalfa Cubes

Overview
Alfalfa cubes is [sic] Alfalfa Hay but it [sic] hydrated and
then dehydrated into a cube for convenience. Alfalfa cubes

11 Oxford Dictionaries (oxforddictionaries.com) attached to the August 15, 2016 Office
Action (TSDR 7).
Serial No. 87006211
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can be bought in various sizes and can be used on almost
all livestock.12
• State Wide Service Center website (statesideservicecenter.com) advertises
Manzanola Alfalfa Cubes.13
Alfalfa hay is unsurpassed in its nutritional value of
perennial forages. Supplemented with the proper minerals,
alfalfa meets the daily nutritional requirements of most
horses.14
• Petfood Industry magazine website (petfoodindustry.com) has a pet food
product database. Burgess Pet Care, a United Kingdom Company,
advertises its Excel Complete Food Cubes.15
Burgess Pet Care offers Excel Complete Food Cubes for
rabbits and guinea pigs. Excel Complete Food Cubes
consist of compressed cubes of long fiber Timothy hay for
dental and digestive health. …
• Pet Supermarket website (petsupermarket.com) advertises the sale of
“Kaytee Timothy Hay Cubes.”16 A package of Kaytee Timothy Hay Cubes
is reproduced below:

12 September 6, 2017 Denial of the Request for Reconsideration (5 TTABVUE 11).
13 September 6, 2017 Denial of the Request for Reconsideration (5 TTABVUE 13).
14 Id.
15 September 6, 2017 Denial of the Request for Reconsideration at (6 TTABVUE 3-4). Based
on the directory of contents posted at 6 TTABVUE 5 (e.g., Market Information, Nutrition,
Blogs, etc.), Petfood Industry magazine is a pet food industry magazine. Petfood
manufacturers, wholesalers, and retailers in the United States have access to the publication
could encounter the advertisement from foreign companies. Accordingly, we consider the
excerpt from this website for whatever probative value it has.
16 September 6, 2017 Denial of the Request for Reconsideration (5 TTABVUE 22).
Serial No. 87006211
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Product Description
Kaytee Timothy Cubes are compressed blocks of
nutritious sun-cured timothy hay that are ideal as a
natural treat for rabbits. High quality hay aids the natural
digestive process of rabbits by providing fiber.
• Brown’s website (fmbrown.com) advertises the sale of “Brown’s® Timothy
Hay Cubes.”17 The website states that “[t]hese cubes are natural, daily
nutritional supplements made from filler-free, western-cut timothy hay, a
daily dietary requirement for small herbivores.” A package of Brown’s
Timothy Hay Cubes is reproduced below and states that it is a nutritional
supplement:

17 September 6, 2017 Denial of the Request for Reconsideration (5 TTABVUE 25).
Serial No. 87006211
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• BioStar Whole Food Supplements website (biostarus.com) advertises the
sale of Optimum K9 whole food multivitamin for dogs “Available in 60
Cubes, 120 Cubes, or Powder.”18 The directions for use are reproduced
below:

• ADM Animal Nutrition website (admanimalnutrition.com) advertises “Beef
Cubes.”19
ADM Animal Nutrition’s Range Cubes fit well into any
operation. … ADM Animal Nutrition offers a variety of
cube formulations to bridge the nutritional gap between
the animals’ requirements and that of the base diet.
We find that “Cubes” describes a feature of nutritional supplements, including
nutritional supplements for pets (i.e., the shape of the nutritional supplements).
We now turn to whether the composite term COMPOSITE CUBES is merely
descriptive of a feature of nutritional supplements for pets. First, there is no evidence
that the use of “Composite Cubes” as a whole that suggests that the combination
creates a term with a non-descriptive meaning or an incongruous meaning when
applied to nutritional supplements for pets. Second, based on the evidence discussed

18 September 6, 2017 Denial of the Request for Reconsideration (6 TTABVUE 6).
19 September 6, 2017 Denial of the Request for Reconsideration (6 TTABVUE 9).
Serial No. 87006211
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above, we find that the components of the mark COMPOSITE CUBES retain their
descriptive significance when used in connection with Applicant’s products.
Applicant uses the term “Composite Cubes” descriptively to advertise that its
WISDOM dog food contains multiple ingredients in a cube form. Applicant’s website
(earthanimal.com) featuring Applicant’s WISDOM dog food packaging is reproduced
below: 20

The package displays “Dr. Bob’s Composite Cubes” as a component of the dog food
with an accompanying explanation that the Composite Cubes are “Made with
Vitamins, Minerals & Antioxidants.” An arrow points to cube-shaped products. “Dr.

20 February 11, 2017 Office Action (TSDR 5).
Serial No. 87006211
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Bob’s Composite Cubes” is displayed in the same manner as the generic terms for
other ingredients, “Shredded Turkey” and “Dehydrated Fruits & Vegetables.”
An excerpt from Applicant’s website displaying “Dr. Bob’s Composite Cubes” in
the same fashion as shown on the packaging is reproduced below:21

Consumers will perceive “Dr. Bob’s” as the source and “Composite Cubes” as
describing the product because “Composite Cubes” is presented in a list of ingredients
with the generic terms “Organic Fruits & Vegetables & Sprouts” and “Shredded
Protein.” We also note that the informational text uses “cubes” in a generic manner
and explains that they are made of protein, vitamins, seeds, and minerals (i.e., a
composite).

21 September 6, 2017 Denial of the Request for Reconsideration (7 TTABVUE 7).
Serial No. 87006211
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Finally, the Examining Attorney submitted one third-party website referring to
“Composite Cubes” descriptively. Although the website does not refer to nutritional
supplement for pets, it shows that in the context of animal feed, at least one person
in that field used the term “composite cubes” to refer to a multiple-ingredient animal
feed in the shape of a cube.
Hereford Talk website (herdfordtalk.com)22
“Let’s talk selling bulls,” a chat thread.
May 11, 2011
John, How are you developing bulls now?
This is the first year I feed very much feed and sold what
yearlings I had. I fed medium quality hay free choice and
about 12.5 lbs. per head per day of a 14% protein pellet in
a dry lot.
I have talked with a local breeder who is feeding alfalfa
“composite” cubes to his bulls free choice in the pasture.
The bulls look good but not fat. He does not weigh his bulls
but believes they gain around 2 pounds a day from weaning
to 18 months old when he sells most of them. The “cubes”
are really just compressed alfalfa and prairie hay with
enough moisture to hold them together they are 15% CP.23
Applicant argues that “COMPOSITE CUBES does not readily tell consumers that
Applicant is offering the goods or ‘nutritional supplements for pets.’”24 As indicated
above, because the issue of whether a mark is merely descriptive is determined in
relation to the goods and not in the abstract or on the basis of guesswork, we evaluate

22 August 15, 2016 Office Action (TSDR 9-12).
23 Id. at TSDR 12.
24 Applicant’s Brief, p. 5 (11 TTABVUE 6).
Serial No. 87006211
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whether someone who knows what the goods are will understand the mark to convey
information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 103
USPQ2d at 1757. Based on the evidence discussed above, a consumer for “nutritional
supplements for pets” will understand the term “Composite Cubes” as describing that
those products are a combination of ingredients in a cube form. Applicant itself uses
“Composite Cubes” in close proximity to representations of its cube-shaped product,
refers to this ingredient using “cubes” in a generic sense, and displays “Composite
Cubes” in the same way it displays “Organic Fruits & Vegetables & Sprouts,”
“Shredded Protein,” “Shredded Turkey,” and “Dehydrated Fruits & Vegetables.”
Also, Applicant contends that “COMPOSITE CUBES is an incongruous or strange
way to identify ‘nutritional supplements for pets,’ in that the mark COMPOSITE
CUBES does not identify what the product consists of, or that it is specifically
intended for pets.”25 To the contrary, COMPOSITE CUBES directly conveys to
consumers that Applicant’s product consists of multiple ingredients in a cube shape.
A mark need not immediately convey an idea of each and every specific feature of the
goods in order to be considered merely descriptive; it is enough if it describes one
significant attribute, function or property of the goods. See In re Gyulay, 3 USPQ2d
at 1010; In re H.U.D.D.L.E., 216 USPQ at 359; In re MBAssociates, 180 USPQ at 339.
Prospective users of Applicant’s products, when confronted with COMPOSITE
CUBES used in conjunction with nutritional supplements for pets, would, without
the need of thought, imagination or perception, be immediately apprised of a

25 Id. at 7 (11 TTABVUE 8).
Serial No. 87006211
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significant characteristic or attribute of Applicant’s goods (i.e., that the nutritional
supplements are cube-shaped products consisting of multiple components). Suffice it
to say that we reject Applicant’s unsupported argument that “COMPOSITE CUBES”
creates a unique commercial impression independent of its constituent parts.26

Decision: The refusal to register Applicant’s mark COMPOSITE CUBES for
nutritional supplements for pets is affirmed.

26 Applicant’s Brief, p. 6 (11 TTABVUE 7).