Essiac Products, Inc.v.Essiac Products Services, Inc.

Trademark Trial and Appeal Board

Apr 5, 2019

CANC (T.T.A.B. Apr. 5, 2019)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: April 5, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Essiac Products, Inc.
v.
Essiac Products Services, Inc.
_____

Cancellation No. 92059498
_____

Kieran G. Doyle of Cowan, Liebowitz & Latman, P.C.
for Performance Open Wheel Racing, Inc.

Essiac Products Services, Inc., by its President Pierre Gaulin.
_____

Before Bergsman, Ritchie and Lynch, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Essiac Products Services, Inc. (Respondent) is the owner of the registration for
the mark ESSIAC (in typed drawing form) registered on the Principal Register for
“food supplements,” in Class 5.1
Essiac Products, Inc. (Petitioner) filed a petition to cancel the registration of
Respondent’s mark on the ground that ESSIAC for “food supplements” is generic.

1 Registration No. 1625600, registered December 4, 1990; second renewal.
Cancellation No. 92059498

2

In its Answer, Respondent denied the salient allegations in the Petition for
Cancellation.
Only Petitioner introduced testimony and evidence and filed a brief.
Pursuant to the Board’s October 6, 2016 order, Petitioner’s testimony period
closed February 5, 2017 and Respondent’s testimony period closed April 6, 2017.2 As
noted above, Petitioner introduced testimony and evidence but Respondent did not.
After Petitioner filed its brief, Respondent filed a document captioned “Partial
Response to Petitioner’s Trial Brief” on September 19, 2017,3 over three weeks after
Respondent’s brief was due pursuant to the Board’s October 6, 2016 order.4 Moreover,
Respondent’s “Brief,” a paper submission, was not properly filed inasmuch as it was
not submitted by means of the Electronic System for Trademark Trials and Appeals
(“ESTTA”), as required by Trademark Rules 2.126(a) and 2.191, 37 C.F.R. §§ 2.126(a)
& 2.191, and did not reference the correct proceeding number. Trademark Rule 2.194,
37 C.F.R. § 2.194; see also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) (2018) § 106.01. Nor did the submission include a “written
explanation of [the] technical problems or extraordinary circumstances” that
necessitated the paper submission, as required by Trademark Rule 2.126(b),
37 C.F.R. § 2.126(b). Further, Respondent’s submission also failed to include proof of
service of a copy of the submission upon Petitioner, signed by Respondent’s

2 41 TTABVUE; see also 43 TTABVUE.
3 71 TTABVUE.
4 41 TTABVUE; see also 43 TTABVUE.
Cancellation No. 92059498

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authorized representative, clearly stating the date on which service was made, as
required by Trademark Rule 2.119(a) 37 C.F.R. § 2.119(a); see also TBMP § 111.02(g)
(a certificate of mailing is not the equivalent of a certificate of service). Also, pursuant
to the Board’s October 6, 2016 order, service must be made via overnight courier, not
First Class mail.5 Finally, Respondent did not obtain permission to file its trial brief
in violation of the Board’s December 5, 2016 order.6 In view thereof, Respondent’s
purported trial brief was stricken.7
On March 20, 2018, Respondent submitted via First Class Mail thirteen
documents as testimony or responses to Petitioner’s testimony. On June 6, 2018,
Respondent filed a paper submission entitled “Registrant Declaration.” None of the
purported testimony includes proof of service on Petitioner. Moreover, Respondent
did not seek or obtain Board permission to file the March 20, 2018 and June 6, 2018
submissions. Respondent’s purported testimony is untimely and is given no
consideration.8
From the beginning of this proceeding, the Board noted that Respondent was
representing itself through its President Pierre Gaulin and, accordingly, the Board
advised Respondent to secure the services of an attorney who is familiar with

5 Although the filings include an ESTTA cover sheet, they are in fact paper submissions, and
do not include a written explanation of the technical problems or extraordinary
circumstances that necessitated the paper submission. Trademark Rule 2.126.
6 46 TTABVUE.
7 73 TTABVUE.
8 94 TTABVUE.
Cancellation No. 92059498

4

proceedings before the Board.9 In our November 7, 2018 Order, the Board reviewed
Respondent’s history of missteps in this proceeding, explained that the trial and
briefing periods closed, that the case has been set for final decision, and that the
Board would not consider Respondent’s March 20, 2018 and June 6, 2018 filings.10
While we are mindful that representation involves legal fees, a party that chooses not
to retain counsel nonetheless must familiarize itself with the rules governing our
proceedings and strictly comply with the Trademark Rules of Practice, and where
applicable the Federal Rules of Civil Procedure.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Respondent’s registration file. Petitioner introduced the
testimony and evidence listed below:
A. Testimony declaration of Kevin Mahoney, Petitioner’s President;11
B. Testimony declaration of Mary Coleman, owner of Herbs by Merlin;12
C. Testimony declaration of Marlys S. Roberts, owner of Kali’s Essentials;13
D. Testimony declaration of Santosh Krinsky, President of Lotus Press;14

9 5 TTABVUE 2; see also 8 TTABVUE 1 n.1, 33 TTABVUE 3, 41 TTABVUE 2, and
43 TTABVUE 4.
10 94 TTABVUE.
11 47 TTABVUE.
12 48 TTABVUE.
13 49 TTABVUE.
14 50 TTABVUE.
Cancellation No. 92059498

5

E. Testimony declaration of Jennifer Gerrity, Executive Director of Operations
for Mountain Rose Herbs;15
F. Testimony declaration of Daryl Jenks, former owner of Premium Essiac Tea
4- Less;16
G. Testimony declaration of Patricia Kim, General Counsel and Vice President of
Regulatory Affairs for Swanson Health Products;17
H. Testimony declaration of Chris Corpening, owner of Tehachapi Tea Co.;18
I. Testimony declaration of Cynthia Bellini, former owner of Kali Press;19
J. Testimony declaration of Van Joerger, President of Starwest Botanicals, Inc.;20
K. Testimony declaration of Daniel Gagnon, President of Herbs Etc.;21
L. Testimony declaration of Nart-Anong Chinda, paralegal at Petitioner’s
counsel’s law firm;22
M. Testimony declaration of Barbara Bennett, General Counsel of Kensington
Publishing Corp.;23 and

15 51 TTABVUE.
16 52 TTABVUE.
17 53 TTABVUE.
18 54 TTABVUE.
19 55 TTABVUE.
20 56 TTABVUE.
21 57 TTABVUE.
22 58-61 and 68 TTABVUE.
23 63 TTABVUE. The portions of the Bennett declaration designated confidential are posted
at 62 TTABVUE.
Cancellation No. 92059498

6

N. Notice of reliance on the discovery deposition of Pierre Gaulin,
Respondent’s President.24
II. Background
The following excerpt from Essiac Essentials: The Remarkable Herbal
Cancer Fighter by Sheila Snow and Mali Klein provides useful background on the
term at issue:
Credited with saving lives for more than half a century,
Essiac is a unique herbal tea made from burdock root,
sweet sorrel herb, slippery elm bark, and turkey rhubarb
root. Formulated by a Native American medicine man, the
original recipe was given to Rene Caisse, a Canadian nurse
who used it successfully to treat thousands of cancer
patients in her free clinic.25
III. Standing
Standing is a threshold issue that must be proven by a plaintiff in every inter
partes case. To establish standing in an opposition or cancellation proceeding, a
plaintiff must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable
basis’ for its belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co.,
753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown
Sports, Inc., v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012)); Ritchie v. Simpson,
170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). The Court of Appeals

24 65-67 TTABVUE.
25 60 TTABVUE 94.
Cancellation No. 92059498

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for the Federal Circuit has enunciated a liberal threshold for determining standing
in Board proceedings. Ritchie v. Simpson, 50 USPQ2d at 1030.
When challenging a term as descriptive or generic, a plaintiff may establish
standing by showing that it is engaged in the sale or offering of services the same as
or related to those covered by the challenged mark. See Eastman Kodak Co. v. Bell &
Howell Document Mgmt. Prods. Co., 23 USPQ2d 1878, 1879 (TTAB 1992), aff’d, 994
F.2d 1569, 26 USPQ2d 1912 (Fed. Cir. 1993); Binney & Smith Inc. v. Magic Marker
Indus., Inc., 222 USPQ 1003, 1010 (TTAB 1984).
Kevin Maloney, Petitioner’s President, testified that Petitioner “has been
distributing ‘Essiac’ herbal supplements in the United States since at least as early
as 1965 (and since 1934 through its predecessor in title).”26 Mr. Maloney contends
that Respondent “has repeatedly attempted to exclude [Petitioner] from the United
States market by invoking the registration at issue in this case,” despite
“longstanding and widespread third-party use of ‘Essiac’ and its failure to function as
a source indicator in the United States.”27 In fact, Respondent sent Petitioner cease
and desist letters demanding that Petitioner stop using ESSIAC.28
An herbal supplement is a dietary supplement which is defined as “any vitamin,
mineral, herbal product, or other ingestible preparation that is added to the diet to
benefit health.”29 A food supplement is a food additive which is defined as “any of

26 Maloney Testimony Decl. ¶4 (47 TTABVUE 5).
27 Id. at ¶8 (47 TTABVUE 5).
28 Id. at ¶9 and Exhibits A and B (47 TTABVUE 7-12).
29 Dietary supplement, ENCYLOPEADIA BRITANNICA (britannica.com).
Cancellation No. 92059498

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various chemical substances added to foods to produce specific desirable effects.”30
Food additives include nutritional additives which “are used for the purpose of
restoring nutrients lost or degraded during production, fortifying or enriching certain
foods in order to correct dietary deficiencies, or adding nutrients to food
substitutes.”31 The term “food supplements” in Respondent’s description of goods and
“herbal supplements” that Petitioner sells are so closely related, if not overlapping,
that Respondent and Petitioner may be considered to be competitors for purposes of
our analysis. Thus, Petitioner has a legitimate interest in preventing Respondent
from gaining an alleged unfair competitive advantage by maintaining a registration
for a purportedly generic term for “food supplements” and Petitioner has standing.
IV. Whether ESSIAC is generic?
A generic term “is the common descriptive name of a class of goods or services.”
Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1045 (Fed. Cir.
2018) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987,
228 USPQ 528, 530 (Fed. Cir. 1986)). In a cancellation proceeding, it is Petitioner’s
burden to prove that ESSIAC is generic by a preponderance of the evidence. See Frito-
Lay N. Am. v. Princeton Vanguard, LLC, 124 USPQ2d 1184, 1187 (TTAB 2017) (citing
Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
1830 (Fed. Cir. 2015)). “The critical issue in genericness cases is whether members of
the relevant public primarily use or understand the term … to refer to the genus of

30 Food additive, ENCYLOPEADIA BRITANNICA (britannica.com).
31 Id.
Cancellation No. 92059498

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goods or services in question.” Royal Crown, 127 USPQ2d at 1046 (quoting Marvin
Ginn, 228 USPQ at 530); Princeton Vanguard, 114 USPQ2d at 1830.
The Federal Circuit has set forth a two-step inquiry to determine whether a mark
is generic: First, what is the genus (category or class) 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? Marvin Ginn, 228 USPQ at 530.
The perception of the relevant public is the chief consideration in determining
whether a term is generic. See Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc.,
114 USPQ2d at 1833. Evidence of the public’s understanding of a term may be
obtained from “any competent source, such as consumer surveys, dictionaries,
newspapers and other publications.” Id. at 1830 (quoting In re Northland Aluminum
Prods., Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985)).
With respect to the first part of the Marvin Ginn inquiry, the genus may be
defined by the goods identified in the registration. See In re Reed Elsevier Props. Inc.,
482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007); Magic Wand Inc. v. RDB Inc.,
940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (a proper genericness inquiry
focuses on the identification set forth in the application or certificate of registration).
We find that the genus is defined by Respondent’s description of goods: “food
supplements.”
The second part of the Marvin Ginn inquiry requires us to consider whether
the term sought to be registered is understood by the relevant public primarily
to refer to that genus of products. The relevant public encompasses “actual [and]
Cancellation No. 92059498

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potential purchasers of . . . goods or services” identified in the registration. Loglan Inst.
Inc. v. Logical Language Grp. Inc., 962 F.2d 1038, 22 USPQ2d 1531, 1533 (Fed. Cir.
1992) (citation omitted); Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341,
1351 (TTAB 2013). Based on a review of the testimony and evidence, the relevant
public is sellers and purchasers of food supplements.
We now turn to the manner in which the relevant consumers perceive the term
ESSIAC when it is used in connection with herbal supplements.
A. Respondent’s use of ESSIAC.
While there is no evidence regarding Respondent’s use of ESSIAC, Pierre Gaulin
testified that while there is no “generic term” for ESSIAC, the term “ESSIAC” refers
to the compound found in “nature.”32
B. Competitors’ use of ESSIAC.
The record includes numerous examples of competitors in the industry using
Essiac to refer to their products. Mary Coleman, owner of Herbs by Merlin, sells
Essiac tea, a blend of sheep sorrel, burdock root, rhubarb, and slippery elm.33 A copy
of the Herbs by Merlin Essiac tea label is reproduced below:34

32 Gaulin Discovery Dep., p. 201 (67 TTABVUE 150) (“Q. [W]hat’s the generic for Essiac?
A. There’s none. Q. There’s no generic term for ESSIAC? A. No. There’s no such thing. You
see, this is nature. The other one’s synthetic.”).
33 48 TTABVUE.
34 59 TTABVUE 68.
Cancellation No. 92059498

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Marlys Roberts, owner of Kali’s Essentials and Marco Industries, sells KALI’S
ESSIAC HERBALS tincture.35 Two fluid ounces makes over 150 cups of tea. A copy
of KALI’S ESSIAC HERBALS label is reproduced below:36

35 49 TTABVUE 4 and 7.
36 58 TTABVUE
Cancellation No. 92059498

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Jennifer Gerrity, Executive Director of Operations for Mountain Rose Herbs,
testified that her company has sold Mountain Rose Herbs Essiac tea products since
1998.37
Daryl Jenks, former owner of Premium Essiac Tea 4-Less, testified that before
his company went out of business, it sold “Premium Essiac Tea 4-Less brand essiac
tea products” from 2006 through 2016.38 A copy of Premium Essiac Tea 4-Less is
reproduced below:39

37 51 TTABVUE.
38 52 TTABVUE.
39 59 TTABVUE 127. Petitioner’s counsel’s paralegal purchased the Essiac Tea June 5, 2015,
before the company went out of business. 59 TTABVUE 126.
Cancellation No. 92059498

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On its website (essiac-herbal-eight.premium-essiac-tea-4less.com), the company
stated that “Essiac in a bottle is an excellent way to keep essiac herbs fresh.”40
Patricia Kim, General Counsel and Vice President of Regulatory Affairs for
Swanson Health Products, testified that her company has sold “Swanson Health
Products brand esssiac products” since 1992.41 A photograph of a box of Swanson
Organic Essiac tea is reproduced below:42

Swanson Health Products also sells an Essiac herbal supplement, a propriety blend
of eight herbs.43

40 59 TTABVUE 122.
41 53 TTABVUE.
42 58 TTABVUE 31.
43 58 TTABVUE 41-62.
Cancellation No. 92059498

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Chris Corpening, owner of Tehachapi Tea Co., testified that his company has sold
“A Nurse’s Herbal Tea brand essiac tea products” since 1996.44 The company’s
website (anursesherbaltea.com) refers to A Nurses Herbal Tea as an “essiac tea.”45
Van Joerger, President of Starwest Botanicals, Inc., testified that his company
has sold “Starwest Botanicals brand essiac tea products” since the late 1990s.46 An
excerpt from the 1999-2000 Starwest Botanicals wholesale catalog is reproduced
below:47

The label for the Starwest Botanicals Essiac Tea is reproduced below:48

44 54 TTABVUE.
45 60 TTABVUE 38.
46 56 TTABVUE.
47 56 TTABVUE 14.
48 58 TTABVUE 83; see also 58 TTABVUE 93 and 102.
Cancellation No. 92059498

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Daniel Gagnon, President of Herbs Etc., testified that his company began selling
“Herbs Etc. brand essiac products in 1993.”49 An excerpt from an Herbs Etc. price list
and order form is reproduced below:50

A bottle of Herbs Etc. Essiac Tonic is reproduced below:51

49 57 TTABVUE.
50 57 TTABVUE 12.
51 58 TTABVUE 107. Herbs Etc. also sells Essiac Tonic in soft gels. Id.
Cancellation No. 92059498

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Petitioner introduced additional third-party websites and products. A
representative sample of the third-party websites and products are listed below:
NaturalGenus Essiac Capsules are shown below:52

The NaturalGenus website (naturalgenusonline.com) advertises that its Essiac
capsules “[h]elp to strengthen your immune system with Essiac tea, an herbal
formula used by Nurse Rene Caisse (with remarkable success) for over 50 years! With
our capsules, you get your Essiac in a fast, convenient form without having to worry
about brewing, refrigeration, mold or waste!”53

52 58 TTABVUE 148.
53 58 TTABVUE 141.
Cancellation No. 92059498

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Cedar Bear Essiac Plus! is shown below:54

Kerstin’s Nature Products for People and Pets Essiac Formula shown below:55

Kerstin’s Nature Products for People and Pets website (kerstinskraeuter.com)
advertises that “[t]his Tincture consists of 4 very common herbs which are also used

54 58 TTABVUE 161.
55 59 TTABVUE 37.
Cancellation No. 92059498

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in the famous ‘Essiac Tea’ formula.”56 Kerstin’s Nature Products for People and Pets
also sells a Detox Herb Body Cleanse Herbal Tincture using the “Essiac Formula.”57
My Elixir of Life Essiac tea label is reproduced below:58

Raven O Moon Emporium organic tea, Essiac blend, is shown below:59

Herbal Balance for Life Incorporated Essiac tea is shown below:60

56 59 TTABVUE 31.
57 59 TTABVUE 41.
58 59 TTABVUE 59.
59 59 TTABVUE 85.
60 59 TTABVUE 92.
Cancellation No. 92059498

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According to the company’s website (herbalbalanceforlife.com),
Essiac tea by Herbal Balance for Life offers an upgraded 8
herb tea formula in a proprietary formula perfected by
Rene Caisse RN and Charles Brush MD. We, at Herbal
Balance for Life recommend that our Essiac tea formula
should be taken as part of your regular supplement regime.
Take Essiac as part of your daily regimen to keep your body
healthy.61
Ojibwa Tea of Life website (ojibwatea.com) advertises an Essence of Ojibwa Tea
of Life Herbal Extract stating that “[t]his small bottle of our essiac extract is very
convenient for travelers, and perfect for hospitalized patients who use essiac tea.”62
The product description states that it is the “Original four herb Rene Caisse essiac
formula.”63
The Harrisburg Store website (harrisburgstore.com) advertises the sale of
Caisse’s Tea Herbal Essiac Formula.64
Mother Earths Creations advertises the sale of ESSIAC 8 Herbal Power Tea (“old
medicine man” recipe).
This is original 4 herb tea used by Rene Caisse. It is mixed
according to her specific formulation and contains the 4
original herbs of Burdock Root, Sheep Sorrel, Slippery Elm
and Turkey Rhubarb.65

61 59 TTABVUE 88.
62 59 TTABVUE 99. Ojibwa Tea of Life does not use the term Essiac on its label. See also 59
TTABVUE 111 (Ojibwa Tea of Life Dry Blend (3 Month) Essiac Tea).
63 Id.
64 58 TTABVUE 169.
65 59 TTABVUE 44. The label of the product does not include the term “Essiac.” It reads “8
Herb Power Tea.” 59 TTABVUE 48.
Cancellation No. 92059498

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C. Use of Essiac in publications
The Essiac Report shown below:66

On the back cover, the publisher prints the following information:
The Essiac Report presents for the first time the complete
facts surrounding Essiac, an incredibly effective Canadian
Herbal Cancer Remedy which has for more than 50 years
successfully treated thousands of people suffering from
various forms of terminal cancer.67

66 59 TTABVUE 9.
67 59 TTABVUE 13.
Cancellation No. 92059498

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ESSIAC: A Native Herbal Cancer Remedy shown below:68

On the back cover, the publisher writes the following:
ESSIAC – An Amazing, Proven, Natural Cancer Therapy!
In 1922, Rene Caisse, a Canadian nurse, made a discovery
that would change her life and the course of cancer
therapy. Caisse received the formula for an herbal remedy
through a patient who had been successfully treated for
breast cancer by a Native American medicine man. With
this remedy, which she called Essiac, Caisse would go on to
treat thousands for patients at an incredible recovery rate
of 80%!

68 59 TTABVUE 22.
Cancellation No. 92059498

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With Essiac’s key ingredients now available through
health food stores, this book gives a complete account of the
recipe, the doses and of Essiac’s uses, and chronicles the
experiences of patients who have obtained relief or
regeneration from this remarkable herbal preparation.69
From January 1, 2005 through July 31, 2015, Lotus Press has sold 30,167 copies of
ESSIAC: A Native Herbal Cancer Remedy to customers in at least 16 states.70
The Tehachapi Tea Company website (anursesherbaltea.com) advertises the sale
of a book I Want To Live Using Essiac by Caroline Bennett.71
Amazon.com advertises the sale of Essiac Essentials: The Remarkable
Herbal Cancer Fighter by Sheila Snow.72 The “Customers Who Viewed This Item
Also Viewed” feature identified six Essiac-related books: ESSIAC: A Native Herbal
Cancer Remedy (noted above), ESSIAC ESSENTIALS, ESSIAC: The Secrets of
Rene Caisse’s Herbal Pharmacy, Essiac Essentials: Rene Caisse’s Herbal
Cancer Remedy, Black Root Medicine the Original Native American Essiac
Formula, and The Essence of Essiac.73
Essiac also appears in many news articles and newspaper columns.74 The
following are representative:

69 59 TTABVUE 25.
70 50 TTABVUE 4.
71 60 TTABVUE 39.
72 60 TTABVUE 82.
73 See also 60 TTABVUE 95 identifying The Essiac Handbook.
74 61 TTABVUE 162-212.
Cancellation No. 92059498

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Daily Town Talk (Alexandria, Louisiana) (August 28, 2016)
Dear Dr. Roach: I have been reading a lot lately about the
benefits of drinking essiac tea to cure cancer. Can you
share your thoughts and facts on this? Thank you!
B.Q.
Dr. Roach: Essiac tea is an extraction of burdock root,
rhubarb root, sheep sorrel and slippery elm bark. Some of
these have anticancer properties when tested in cell lines;
however, they have cancer-causing properties as well.
There has never been a clinical study showing any of these
components or the tea having benefit in treating or
preventing cancer.75
The News Herald (Morgantown, North Carolina) (October 12, 2012)
When Sue Hall was diagnosed with cancer more than 11
years ago, the traditional options were laid out on the table:
chemotherapy, radiation, surgery.
* * *
“The first think I did, I ate only raw fruits and vegetables.
I juiced a lot. I did that for months, then I started adding
supplements. … Then I started drinking this tea - - essiac
tea.”
For Hall, the herbal tea handed down from Canadian
Indians to Western civilization less than 100 years ago,
was like manna for her ailing body.
… Herbal blends like essiac tea are alleged to slow tumor
growth.76
The Commercial Appeal (Memphis, Tennessee) (August 4, 2012)
Hucksters sometimes promote their products as natural,
but that doesn’t mean they’re safe or effective. The FTC

75 61 TTABVUE 162. Derivations of this article were introduced numerous times in different
publications. 61 TTABVUE 164-174.
76 61 TTABVUE 177.
Cancellation No. 92059498

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cites serval supposed miracle cancer-fighting products,
including black salve, essiac tea and laetrile.77
D. Analysis
Determining whether a term is generic is fact intensive and depends on the
record. See In re Tennis Indus. Ass’n, 102 USPQ2d 1671, 1680 (TTAB 2012); see also
Royal Crown, 127 USPQ2d at 1044 (“Whether an asserted mark is generic or
descriptive is a question of fact” based on the entire evidentiary record). As noted
above, Essiac is generic if the consumers who use food supplements primarily use or
understand the term Essiac when it is used in connection with food supplements to
refer to a genus, category, or class of goods, including a subcategory of food
supplements. See Royal Crown, 127 USPQ2d at 1046.
Petitioner’s evidence provides numerous examples of third parties using Essiac
to identify a type of herbal tea or herbal supplement comprising a blend of burdock
root, rhubarb root, sheep sorrel and slippery elm bark. Given the testimony by
Petitioner’s third-party witnesses and the purchase of the Essiac products by
Petitioner’s counsel’s paralegal, we find that there has been a steady stream of
consumer exposure to Essiac products, establishing that Essiac herbal teas and
supplements are available and known to U.S. consumers.
In addition, Petitioner introduced evidence of the Essiac as a type of herbal tea
or supplement in publications and news articles by authors who refer to Essiac as the
herbal remedy promoted by some as a treatment for cancer. For example, in his

77 61 TTABVUE 179.
Cancellation No. 92059498

25

medical newspaper column, Dr. Keith Roach refers to Essiac tea as “an extraction of
burdock root, rhubarb root, sheep sorrel and slippery elm bark.”78 The publisher of
The Essiac Report asserts that its book “presents for the first time the complete
facts surrounding Essiac, an incredibly effective Canadian Herbal Cancer Remedy.”79
Thus, the record shows that Essiac will be used by competitors and understood
by the relevant public primarily as referring to an herbal food supplement. In view of
the foregoing, we find that the term Essiac is generic for food supplements.

Decision: The Petition for Cancellation is granted and Registration No. 1625600
will be cancelled in due course.

78 61 TTABVUE 162.
79 59 TTABVUE 13.