Healthy Brands LLC

Trademark Trial and Appeal Board

Oct 6, 2020

88101140 (T.T.A.B. Oct. 6, 2020)

Mailed: October 6, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Healthy Brands LLC
_____

Application Serial No. 88101140
_____

Thomas M. Joseph, Esq. for Healthy Brands LLC.

Brent Radcliff, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
_____

Before Bergsman, Kuczma and Greenbaum, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Healthy Brands LLC (Applicant) seeks registration on the Principal Register for
the proposed mark HEALTHY BRANDS, in standard characters, for the goods listed
below:
Drugs in the nature of topical antibacterial drugs in the
nature of antiseptics, disinfectant, cold sore treatments,
wound healers, topical acne treatments, scalp treatments,
and topical antibiotics; topical antifungal drugs in the
nature of butenafine hydrochloride, clotrimazole,
miconazole nitrate, terbinafine hydrochloride, tolnaftate,
and VYI antifungals; pain relievers in the nature of
systemic analgesics, topical analgesics, analgesics for
mouth pain, analgesics for dental pain, acetaminophen,
aspirin, ibuprofen and naproxen; smoking cessation
preparations; topical dermatological drugs; digestion drugs
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Serial No. 88101140

- 2 -

in the nature of antacids, antiflatulents, laxatives,
antidiarrheals, antinauseants, digestive enzymes liver and
bile remedies, antispasmodics and irritable bowel
syndrome remedies, and traditional digestive remedies;
vitamins; oral contraceptives, emergency oral
contraceptives, medicated eye washes; cold and cough
drugs in the nature of cough remedies, systemic cold and
flu remedies, topical decongestants, chest rubs and
inhalants sore throat remedies, medicated confectionery,
antihistamines, and cough suppressants; allergy drugs in
the nature of oral antihistamines, decongestants, nasal
sprays, and combination medications; asthma drugs in the
nature of epinephrine, ephedrine, and racepinephrine,
medicated toothpaste, medicated mouth rinses, medicated
mouthwashes, medicated dental preparations in the
nature of medicated dental floss and medicated anti-cavity
mouth rinses, in International Class 5; and
Oral care products in the nature of namely, toothbrushes,
toothbrush heads, dental tape, dental floss, dental flossers,
dental floss picks and dental care kits consisting primarily
of toothbrushes, in International Class 21.1
The Examining Attorney refused to register the proposed mark under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that HEALTHY
BRANDS for drugs and oral care products is merely descriptive. According to the
Examining Attorney, consumers understand HEALTHY BRANDS to be products
conducive to good health.2
Applicant argues, to the contrary, that HEALTHY BRANDS as applied to drugs
and oral care products is suggestive inasmuch as HEALTHY BRANDS “does not
convey any particular function, characteristic, attribute, or use of the associated

1 Serial No. 88101140 was filed August 31, 2018, under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in
commerce.
2 Examining Attorney’s Brief (9 TTABVUE 7).
Serial No. 88101140

- 3 -

products because there is no general agreement as to what constitutes a ‘healthy’
drug or oral care product.”3 In other words, HEALTHY BRANDS is too vague and,
therefore, it does not convey directly or immediately any meaning to consumers.4
In the absence of acquired distinctiveness, Section 2(e)(1) of the Trademark Act
precludes registration of a mark on the Principal Register that, when used in
connection with an applicant’s goods or services, is merely descriptive of them.
15 U.S.C. § 1052(e)(1). “A mark is merely descriptive if it immediately conveys
information concerning a feature, quality, or characteristic of the goods or services
for which registration is sought.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc.,
906 F.3d 965, 128 USPQ2d 1370, 1373 (Fed. Cir. 2018) (quoting In re N.C. Lottery,
866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017)). We “must consider the mark
as a whole and do so in the context of the goods or services at issue.” DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757
(Fed. Cir. 2012) (emphasis added); In re Calphalon, 122 USPQ2d 1153, 1162 (TTAB
2017). “Whether consumers could guess what the product is from consideration of the
mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB
1985). Indeed, “[t]he question is not whether someone presented with only the mark
could guess what the goods or services are. Rather, the question is whether someone
who knows what the goods and services are will understand the mark to convey

3 Applicant’s Brief, p. 9 (7 TTABVUE 10).
4 Id. at pp. 9-10 (7 TTABVUE 10-11).
Serial No. 88101140

- 4 -

information about them.” DuoProSS, 103 USPQ2d at 1757 (quoting In re Tower Tech,
Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)).
This applies to compound marks as well.
In considering a mark as a whole, the Board may weigh the
individual components of the mark to determine the overall
impression or the descriptiveness of the mark and its
various components. … [I]f ... two portions individually are
merely descriptive of an aspect of appellant’s goods [or
services], the PTO must also determine whether the mark
as a whole, i.e., the combination of the individual parts,
conveys any distinctive source-identifying impression
contrary to the descriptiveness of the individual parts.
In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004).
If each component retains its merely descriptive significance in relation to the
goods or services, then the mark as a whole is merely descriptive. Id. at 1374; In re
Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1955 (TTAB 2018).
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE defines the word
“healthy,” inter alia, as “conducive to good health; healthful.”5 It defines the word
“brand,” inter alia, as “a distinctive category; a particular kind.”6 Merriam-
Webster.com defines “brand,” inter alia, as “a class of goods identified by name as the
product of a single firm or manufacturer.”7 The composite mark HEALTHY BRANDS,
therefore, means products tending to produce good health or a healthful product.

5 December 17, 2018 Office Action (TSDR 5). Page references to the application record are to
the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval
(TSDR) system.
6 Id. at TSDR 4.
7 March 10, 2020 Request for Reconsideration Denial (5 TTABVUE 6).
Serial No. 88101140

- 5 -

The evidence of the use of the terms “healthy” and “brand” submitted by the
Examining Attorney listed below further supports this finding of fact:8
● Forbes website (forbes.com)
[Emerging Brands Grabbing Share of the Retail Wellness
Market]
Gender-specific health solutions are the anchor for two new
healthy brands.9
● MSN Lifestyle website (msn.com)
[Foods That Are Not As Healthy As They Seem]
3. Microwave popcorn
While air-popped popcorn can be a healthy snack, it may
be worth avoiding microwavable popcorn which comes in a
brown bag. The smell emitted from a freshly popped bag
can be harmful if inhaled regularly.
Numerous manufacturers can add up to a half gram of
trans fat per serving without disclosing it in the nutrition
facts label, according to Prevention. The website also
provides a list of healthy brands, if you would like to opt for
microwavable options.10
● Health Goods website (healthygoods.com)
Healthy Mouthwash and Floss for Natural Oral Care

8 We did not include the Evident website (devweb.evidentlabs.com) because the language
used in it leads us to conclude that it is not from a website based in the United States and,
therefore, it does not reflect how U.S. consumers will encounter the term “Healthy Brands.”
July 15, 2019 Office Action (TSDR 6).

9 July 15, 2019 Office Action (TSDR 9). The Examining Attorney did not include the title of
the article in the excerpt he included in the evidentiary submission.
10 Id. at TSDR 10. The Examining Attorney did not include the title of the article in the
excerpt he included in the evidentiary submission.
Serial No. 88101140

- 6 -

… Healthy mouthwash and floss can also help the
remineralization process and slow down tooth decay and
plaque buildup.11
● Nourishing Pensacola website (nourishingpensacola.com)
On Fat, Raw Milk and Ghee
… Save time and money choosing exceptional quality
healthy brands and groceries.12
● Peace Love Glam website (peaceloveglam.com)
[Is Your Toothpaste Healthy For You?]
Did you know that oral care goes way beyond having pearly
white teeth? …
… Over the past 8 years I’ve tried many different healthy
brands of toothpaste and I have had to switch many times
after learning about the ingredients that are in them.13
● Natural Living Family website (naturallivingfamily.com)
How Is Thrive Market Different?
Thrive Market is an online, wholesale marketplace for
natural and healthy brands.14
● Eight third-party registrations for marks incorporating the word “healthy” for
oral care products, vitamins or nutritional supplements where the registrant
disclaimed the exclusive right to use the word “healthy.”15

11 Id. at TSDR 11.
12 Id. at TSDR 13.
13 Id. at TSDR 14. We picked this title off the URL because it is not clear whether the article
has a title.
14 Id. at TSDR 17.
15 March 10, 2020 Request for Reconsideration Denial (5 TTABVUE 7, 11, 14, 16, 19, 22, 25,
and 27).
Serial No. 88101140

- 7 -

We find that the proposed mark HEALTHY BRANDS when used in connection
with oral care products and drugs is merely descriptive because it directly conveys to
customers and potential customers the purpose (i.e., to induce good health) or
characteristic (i.e., made through a healthful process) of the oral care products and
drugs. It takes no mental leap or multiple step reasoning process to understand that
HEALTHY BRANDS means that Applicant intends to make the oral care products
and drugs in a wholesome manner and induce good health.
Accordingly, we disagree with Applicant’s argument that HEALTHY BRANDS is
too vague and, therefore, does not directly convey the purpose or characteristic of the
drugs and oral care goods.16 “A mark may be merely descriptive even if it does not
describe the ‘full scope and extent’ of the applicant’s goods or services.” In re Oppedahl
& Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (citing In re
Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir.
2001)). It is enough if a mark describes a single feature or attribute. In re Chamber
of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In
re Oppedahl & Larson LLP, 71 USPQ2d at 1371.
Applicant contends that marks that indicate results, such as HEALTHY
BRANDS, are suggestive.
By its very nature, a mark that indicates results, such as
HEALTHY BRANDS, is suggestive as it requires the buyer
to undergo a mental leap regarding the product’s
attributes. Such a mental leap, which is not almost

We did not include Registration No. 5929339 because it does not have a use-based filing basis.
Id. at 5 TTABVUE 8.
16 Applicant’s Brief, pp. 9-10 (7 TTABVUE 10-11).
Serial No. 88101140

- 8 -

instantaneous, strongly indicates that a mark is
suggestive, not descriptive.17
Applicant refers to 16 third-party registrations of purportedly analogous or similar
“results based” marks as evidence that HEALTHY BRANDS is suggestive.18 The
following registered marks are illustrative:
● Registration No. 1487357 for the mark CALIFORNIA TAN for “tanning lotions,
gels, and oils; and moisturizers and cleansers,” in International Class 3;19
● Registration No. 3322960 for the mark HEALTHY HAIR (“hair” disclaimed) for
“hair brushes,” in International Class 21;20 and
● Registration No. 2497677 for the mark QUIETRIDE for “equipment, specifically
modulus plate casters for installation on office equipment carts and other wheeled
equipment used in mailroom, reprographic, security, printshop and other non-
factory/non-front office work areas,” in International Class 12.21
These prior registrations do not conclusively rebut the Examining Attorney’s
evidence that HEALTHY BRANDS is merely descriptive in connection with drugs
and oral care goods. First, as indicated above, we “must consider the mark as a whole
and do so in the context of the goods or services at issue.” DuoProSS, 103 USPQ2d at
1757. Therefore, third-party registrations for disparate goods or services have little,
if any, relevance.

17 Applicant’s Brief, p. 8 (7 TTABVUE 9).
18 January 14, 2020 Request for Reconsideration (4 TTABVUE 16-40).
19 Id. at 4 TTABVUE 16.
20 Id. at 4 TTABVUE 18.
21 Id. at 4 TTABVUE 19.
Serial No. 88101140

- 9 -

Second, a mark under consideration may tilt toward suggestiveness or
descriptiveness depending on context and any other factor affecting public perception.
The Board must decide each case on its own merits. In re Nett Designs, Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); In re Owens-Corning Fiberglas Corp.,
774 F.2d 116, 227 USPQ 417, 424 (Fed.Cir.1985). Even if some prior registrations
have some characteristics similar to Applicant’s mark, the USPTO’s allowance of such
prior registrations does not bind the Board. Nett Designs, 57 USPQ2d at 1566.
Decision: The refusal to register Applicant’s proposed mark HEALTHY BRANDS
is affirmed.