Fast Forward Ventures, LLC

Trademark Trial and Appeal Board

Feb 5, 2015

No. 86027241 (T.T.A.B. Feb. 5, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: February 5, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fast Forward Ventures, LLC
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Serial No. 86027241
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Rob G. Leach of Charmasson, Buchaca & Leach LLP,
for Fast Forward Ventures, LLC
Kimberly Boulware Perry, Trademark Examining Attorney, Law Office 112,
Angela Wilson, Managing Attorney.
_____

Before Zervas, Shaw and Goodman,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Fast Forward Ventures, LLC (“Applicant”) seeks registration on the Principal
Register of the mark (in standard characters; hereinafter
“THE FIT FOODIE”) for the following International Class 41 services:
Arranging, organizing, conducting, and hosting social entertainment
events; Consultation in the field of special event planning for social
entertainment purposes; Organizing community sporting and cultural
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events; Organizing, arranging, and conducting running, walking and
racing events.1

The 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, when used
in connection with Applicant’s services, THE FIT FOODIE would be merely
descriptive of such services because it “immediately and aptly describes the
audience, intended user or group of users for applicant’s services.”2 When the
refusal was made final, Applicant requested reconsideration and, shortly thereafter,
filed an appeal. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
A term is deemed to be 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 Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978). A term need
not immediately convey an idea of each and every specific feature of the applicant’s
goods or services in order to be considered merely descriptive; it is enough that the
term describes one significant attribute, function or property of the goods or
services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re MBAssociates,
180 USPQ 338 (TTAB 1973). It is well-established that the determination of mere

1 Application Serial No. 86027241 was filed on August 2, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
2 Examining Attorney’s Brief at unnumbered p. 3.
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descriptiveness must be made not in the abstract, but in relation to the goods or
services for which registration is sought. In re Abcor, 200 USPQ at 218; In re Vehicle
Identification Network, Inc., 32 USPQ2d 1542 (TTAB 1994) (descriptiveness of mark
in an intent-to-use application determined by services identified in application).
The Examining Attorney relies on the definitions in the record for “fit” (“in good
physical condition and health”)3 and “foodie” (“persons with an avid interest in the
latest food fads”);4 and finds that THE FIT FOODIE “immediately and aptly
identifies the intended user or group of users of Applicant’s social entertainment
events, community sporting and cultural events and running, walking and racing
events, because the plain meaning of the words describes persons in good physical
condition with avid interest in food and eating.”5
The Examining Attorney also relies on the following materials in the record:
● Webpages from Applicant’s website submitted with Applicant’s response to the
first Office Action that promote a 5k race as an opportunity to “Run” “Eat” and
“Drink,” followed by “cooking demonstrations” and “fitness discussions” for an
“extraordinary foodie experience” for participants.6

3 Accessed at http://dictionary.reference.com/brouse/fit; submitted with the first Office
Action.
4 Accessed at www.merriam-webster.com/dictionary/foodie; submitted with the first Office
Action.
5 Examining Attorney’s Brief at unnumbered p. 4-5.
6 Applicant also noted that the events which Applicant will plan and consult about will
include persons who are interested in fitness and food (tasting, preparation and
presentation) but would also include all persons in the general public, whether or not they
are particularly interested in fitness or food.
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● Third-party webpages wherein the term “the fit foodie” is used to identify
consumers with an avid interest in both fitness and food or cooking, e.g.:
www.thefitfoodie.com/the-fit-foodie
Where Carly, a San Diego registered dietician describes herself as a
“fit foodie” and blogs about making food choices without sacrificing
health or fitness goals.

www.fitfoodiechef.com
Where Chef Jen, “Fit Foodie Chef”, “offers healthy cooking
demonstrations and classes, online tips, recipes and advice on healthy
eating and living.”

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www.amazon.com
Featuring the book:

www.praisecharlotte.com
offering a link to “Fit Foodie Minute: Healthy Holiday Eating Tips 1-3”

www.fitfoodiemom.com
Where Darcy, a mother and Marine Corps veteran blogs about:

“The Fit I will share my experiences as a fitness
instructor and physical training leader in the Marine
Corps.”

“The Foodie … Even though I’m the Fit Foodie Mom, I
still love … chocolate cake. … I have a ton of healthy and
not-so-healthy recipes to share.”

www.thefitfoodie.net
Hannah, “The Fit Foodie Weight Loss Specialist,” who is a nutrition
coach and personal trainer, provides advice to the persons interested in
weight loss and cooking good food.

www.laurenraelife.com/fit-foodie/
Where Lauren asks, “Want Fit Foodie Recipes??” and describes herself
as “Fit Foodie[.] Experienced in sports nutrition, the Paleolithic diet,
juicing, detox, superfoods, natural home remedies and raw foods … .”

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www.southernfitfoodie.wordpress.com
a blog titled by Natalie, who loves to cook, eat and work out:

www.theenergizedbody.com
Denise, stating she is “a Fit Foodie” “preparing nutritious meals that
everyone in your family will enjoy.”

www.the-fitfoodie.com
“The Fit Foodie
a girl and her dog’s guide to eating clean, training hard and living big”

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www.shape.com

The Examining Attorney submits that (i) the individual terms “fit” and “foodie”
maintain their descriptive meanings in the combination THE FIT FOODIE; (ii) an
incongruous, or nondescriptive meaning is not created; and (iii) that THE FIT
FOODIE conveys immediate information about the Applicant’s services.
Applicant challenges the refusal, relying on argument, case law and additional
dictionary definitions. According to Applicant, “a typical consumer seeing the mark
will not ‘immediately’ know that the mark is being used in conjunction with event
planning services, or know the specific types of events planned. Instead, the typical
consumer will need to use ‘thought’ and/or their ‘imagination’ to derive the
characteristics of the services, the event and/or some of the persons participating in
the event,” because “fit” has several meanings,7 and when encountering “foodie,” the
consumer will have to know the term “refers to persons interested in food analysis,
presentation and/or preparation … [and] the consumer will not know what the

7 “‘Fit’ can mean well-suited or appropriate. Fit can mean proper or attractive, qualified or
competent. Fit can also be used to mean that something or someone is ‘ready’. It can also be used
as a verb, including making something the right size or shape. ‘Fit’ can also refer to the process
or result of fitting.” Applicant’s Brief at 8.
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planned event is, or know the services being provided, or know who the users are or
will be.”8 As noted by the Examining Attorney, however, the fact that a term may
have other meanings in different contexts is not controlling when determining
descriptiveness. In re Franklin Cnty. Historical Soc’y, 104 USPQ2d 1085, 1087
(TTAB 2012) (citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979)). The
determination of whether a mark is merely descriptive must be made in relation to
the goods or services for which registration is sought, not in the abstract. In re
Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012); In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007). This requires consideration of the context in which the mark is
used or intended to be used in connection with those goods or services, and the
possible significance that the mark would have to the average purchaser of the
goods or services in the marketplace. In re Chamber of Commerce, 102 USPQ2d at
1219; In re Bayer, 82 USPQ2d at 1831; In re Omaha Nat'l Corp., 819 F.2d 1117, 2
USPQ2d 1859 (Fed. Cir. 1987). Thus, what counts is consideration of the term in
the sports, fitness and food context, which is encompassed within Applicant’s
recitation of services. The level of specificity that Applicant seeks (“the consumer
will not know what the planned event is”) is not the test. Thus, even if there are
uses of the term outside of the sports and food context, and even if the term is not so
specific as to identify, e.g., the planned event, the term may nonetheless be merely
descriptive of a feature of the involved services. All that is necessary is that the

8 Applicant’s Brief at 7-8.
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term conveys an immediate idea of an ingredient, quality, characteristic, feature,
function, purpose or use of the goods or services. In re Gyulay, 3 USPQ2d 1009.
Applicant makes numerous additional arguments in favor of registration, none
of which we find persuasive for the reasons identified below:
1. The Examining Attorney’s contention that the proposed mark is merely
descriptive of the intended use or group of users of the services because those
persons who would use Applicant’s services are not limited to persons
interested in fitness and/or food.9 The fact that the applied-for term identifies
certain persons to whom Applicant’s services are directed renders a service
mark merely descriptive; it need not refer to all potential purchasers.
2. “The examiner’s position … does not account for circumstances in which the
mark is used for consumers of event planning consultation services.”10
Indeed, consulting with third parties concerning their event planning is also
included in the recitation of services. Its inclusion, however, does not dictate
a reversal of the refusal in this case. The Board in In re Analog Devices Inc., 6
USPQ2d 1808, 1810 (TTAB 1988), aff'd without pub. op., 871 F.2d 1097, 10
USPQ2d 1879 (Fed. Cir. 1989), stated, “it is a well settled legal principle that
where a mark may be merely descriptive of one or more items of goods [or
services] in an application but may be suggestive or even arbitrary as applied
to other items, registration is properly refused if the subject matter for
registration is descriptive of any of the goods [or services] for which

9 Applicant's Brief at 6.
10 Applicant's Brief at 6-7.
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registration is sought.” It is sufficient that the proposed mark describes a
feature of at least one service specified in the recitation of services.
3. The Examining Attorney’s evidence is not persuasive because it concerns
persons who are interested in fitness and fine food preparation, not “events or
event-planning services or consumers.”11 Applicant’s services, however,
include “Organizing community sporting and cultural events” and
“Organizing, arranging, and conducting running, walking and racing events.”
Persons who are interested in fitness and fine food preparation are potential
consumers of such services.
4. The proposed mark is not descriptive because it comprises an “unusual
combination of words” and a “unique and catchy” expression with
incongruous terms.12 It is true that if the combination of descriptive terms
creates a unitary mark with a unique, incongruous, or otherwise
nondescriptive meaning in relation to the goods and/or services, the combined
mark may be registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 157
USPQ 382 (CCPA 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161 (TTAB
2013). This is not the case here. The Examining Attorney has submitted
ample evidence of use of “fit foodie” from websites which bear no apparent
relationship to one another, and the use of “fit foodie” in such websites is
consistent in form and meaning. See, e.g., the webpage from shape.com, cited
above, which concisely defines “fit foodie” as the “fit woman who loves to eat

11 Applicant's Brief at 9.
12 Applicant's Brief at 11-12.
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as much as she loves to work out.” In addition, the individual terms “fit” and
“foodie” retain their descriptive meaning, immediately conveying information
about the services in the proposed mark.
5. Competitors of Applicant do not need to use the applied-for term. However, as
the Board has reiterated, “the [only] test for descriptiveness is whether a
term immediately conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is used.” In re Carlson, 91
USPQ2d 1198, 1203 (TTAB 2009) (internal citations omitted). “There is no
requirement that the Office prove actual competitor use or need ….” Id.
6. The proposed mark conveys an “ideal” (with the ideal being a love of food
combined with fitness), citing Douglas Laboratories Corp. v. Copper Tan, Inc.,
210 F.2d 453, 100 USPQ 237 (2d Cir. 1954), a trademark infringement and
unfair competition case involving “Coppertone” for sun tan preparation.
Douglas Laboratories found the term to be “fanciful,” not an “ideal.” To the
extent Applicant’s proposed mark represents an ideal, it nonetheless would
be considered a laudatory mark, and also merely descriptive.
In sum, we are not persuaded by any of Applicant’s arguments in favor of
registration, all of which we have considered in rendering our decision. Rather, the
Examining Attorney’s evidence of record supports a determination that Applicant's
proposed mark, THE FIT FOODIE, when considered in relation to Applicant’s
services, immediately informs prospective purchasers as to a “quality, feature…or
characteristic” of Applicant’s services, by describing the intended user or group of
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users for Applicant’s services. We therefore find that the Office has met its burden
of demonstrating that Applicant’s proposed mark THE FIT FOODIE when used in
connection with the identified services is merely descriptive.
Decision: The refusal to register Applicant’s mark under Section 2(e)(1) of the
Trademark Act is affirmed.