Humanetics Corp.

Trademark Trial and Appeal Board

Mar 8, 2002

No. 75530919 (T.T.A.B. Mar. 8, 2002)

3/8/02

Paper No. 20
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Humanetics Corporation
________

Serial Nos. 75/426,140 and 75/530,919
_______

Michael S. Sherrill of Sherrill Law Offices for Humanetics
Corporation.

Curtis French, Trademark Examining Attorney, Law Office 115
(Thomas Vlcek, Managing Attorney).
_______

Before Seeherman, Bottorff and Drost, Administrative
Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

Humanetics Corporation (applicant) filed two trademark
applications to register the marks 7-KETO (in typed form)1
and 7-KETO (stylized)2 as shown below for goods identified
as follows:

1 Serial No. 75/530,919, filed August 4, 1998. The application
alleges a date of first use and a date of first use in commerce
of June 17, 1998.
2 Serial No. 75/426,140, filed January 30, 1998. The application
was based on an allegation of a bona fide intention to use the
mark in commerce. The application was subsequently amended to
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser. Nos. 75/426,140 and 530,919
2
Derivatives of dehydroepiandrosterone (DHEA) used as
an ingredient in the manufacture of dietary
supplements in International Class 1 and

Derivatives of dehydro[e]piandrosterone (DHEA) used as
an integral component of dietary supplements in
International Class 5.3

The Examining Attorney4 refused registration under
Section 2(e)(1) on the ground that applicant’s mark in the
‘140 application was merely descriptive of the goods and
the Examining Attorney required applicant to disclaim the
term “7-KETO” in the ‘919 application under the provisions
of Section 6(a) of the Trademark Act. 15 U.S.C. §§
1052(2)(e)(1) and 1056(a). When the Examining Attorney
made the refusal and requirement for a disclaimer final,
applicant filed notices of appeal. Both applicant and the
Examining Attorney have submitted briefs, but no oral

allege a date of first use and a date of first use in commerce of
September 23, 1998.
3 The goods in International Class 5 in Application No.
75/426,140 are identified slightly differently: “Derivatives of
Dehydroepiandrosterone (DHEA) sold as an integral component of
dietary supplements.” There is no evidence or argument that the
difference in the Class 5 identification of goods is significant
and, for convenience, we will refer to the goods as identified in
the other application (No. 75/530,919).
4 The current Examining Attorney was not the original Examining
Attorney in this case.
Ser. Nos. 75/426,140 and 530,919
3
argument was requested in either case. Because the records
in these cases are very similar and the issue of whether
the term 7-KETO is descriptive is identical, we have
consolidated these cases on appeal. Unless otherwise
stated, references to the record appear in both
applications. We will cite to the record in the ‘919
application.
The Examining Attorney argues that “applicant’s
product is a derivative of dehydro[e]piandrosterone (DHEA),
used as an ingredient in the manufacture of dietary
supplements, known as 7-keto-dehydroepiandrosterone (7-keto
DHEA).” Examining Attorney’s Br. at 3. The Examining
Attorney concludes by stating that “the term 7-KETO
describes a particular type of ingredient found in
applicant’s goods, namely, a metabolite derivative of DHEA,
and as the relevant public would understand this
designation to refer to the same, the proposed mark is
therefore unregistrable on the Principal Register without a
disclaimer of the term 7-KETO” in the ‘919 application.
Examining Attorney’s Br. at 6. In the ‘140 application,
the Examining Attorney found that the mark was highly
descriptive and likewise unregistrable on the Principal
Register. The Examining Attorney relied on the following
evidence. U.S. Patent No. 5,707,983, owned by applicant
Ser. Nos. 75/426,140 and 530,919
4
and entitled “Treatment of Alzheimer’s Disease and
Modulation of Immune System with ?5-Androstenes” contained
the following heading: “(2) ?5-Androstene-3ß-ol 7,17-dione
(7-keto DHEA).” Col. 3, line 18. In addition, the
Examining Attorney included a dictionary definition of
“keto-“ as “Ketone; ketone group: ketosis.” American
Heritage Dictionary of the English Language, Third Edition
(1992). Finally, the Examining Attorney submitted numerous
website pages that were alleged to show use of the term in
a descriptive manner. A sample of those websites is set
out below.
7-Keto DHEA is one of more than 150 metabolites of
DHEA (dehydroepiandrosterone), a mother precursor
hormone that is naturally produced by the adrenal
gland and source of many other full-fledged hormones.
www.airscapes.com.

7-KETO DHEA is a naturally occurring metabolite
derived from DHEA (dehydroepiandrosterone)…. 7-Keto
DHEA has also been shown to increase thermogenesis, or
your body’s ability to burn calories.
www.athleticnutrition.com.

When a regular DHEA supplement reaches the body’s
cells, it’s broken down two ways: it can be converted
into sex hormones, or into 7-keto DHEA (7-keto-
dehydroepiandrosterone). www.seacoastvitamins.com.

7 Keto DHEA enhances thermogenesis or lean body mass.
VitaNet Health Foods; www.vitanet.net.

7-Keto is a naturally occurring metabolite of the
human hormone known as DHEA. www.vitamins.com.

Ser. Nos. 75/426,140 and 530,919
5
7-KETO DHEA is a naturally occurring metabolite
derived from DHEA (Dehydroepiandrosterone).
www.iherb.com (emphasis omitted).

Q. I wonder what you think of 7-KETO DHEA which is
now being marketed as a safer alternative to DHEA…
A. 7-keto DHEA is a hormone similar to DHEA, and
touted as having many of the benefits of DHEA…
www.raysahelian.com.

Supported by this evidence, the Examining Attorney
submits that the wording in applicant’s marks is merely
descriptive for the identified goods.
In its brief, applicant “acknowledged that keto is
recognized by selected professionals, such as organic
chemists, as indicating a double bonded oxygen group …
Applicant has further acknowledged that ?5-androstene-3-
acetoxy-7,17-dione has a keto group pendent from the
seventh carbon atom on the steroid base ring structure.”
Br. at 3. Applicant argues that average customers would
not recognize 7-keto as describing or suggesting an
attribute of an ingredient of applicant’s products.
Second, it submits that even if 7-keto does describe the
presence of a double bonded oxygen it does not describe any
substantial attribute of the ingredient. Finally,
applicant observes that the website and other information
of record showing descriptive use of applicant’s term is
actually use by applicant’s licensees or references by
others to applicant’s products.
Ser. Nos. 75/426,140 and 530,919
6
We agree with the Examining Attorney that the term “7-
keto” is merely descriptive, and we, therefore, affirm the
Examining Attorney’s refusal to register the ‘140
application under Section 2(e)(1) of the Trademark Act and
the requirement for a disclaimer of the wording in the ‘919
application.
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics of
the goods or services or if it conveys information
regarding a function, purpose, or use of the goods or
services. In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 217 (CCPA 1978). See also In re Nett Designs,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). We
look at the mark in relation to the goods or services, and
not in the abstract, when we consider whether the mark is
descriptive. Abcor, 588 F.2d at 814, 200 USPQ at 218.
Courts have long held that to be “merely descriptive,” a
term need only describe a single significant quality or
property of the goods. In re Gyulay, 820 F.2d 1216, 1217,
3 USPQ2d 1009, 1009 (Fed. Cir. 1987); Meehanite Metal Corp.
v. International Nickel Co., 262 F.2d 806, 807, 120 USPQ
293, 294 (CCPA 1959).
We agree with the Examining Attorney that the term “7-
keto” describes an ingredient or component of a dietary
Ser. Nos. 75/426,140 and 530,919
7
supplement containing a derivative of DHEA. Even applicant
admits that “‘7-Keto’ may describe a characteristic of the
relevant goods (i.e., the seventh carbon in the steroid
base structure is a carbonyl).” Response dated July 10,
2000, p. 7. See also Response dated July 27, 1999, p. 3
(Applicant “acknowledges that ?5-androstene-3-acetoxy-7,17-
dione has a keto group pendent from the seventh carbon atom
on the steroid base ring structure”). Applicant further
acknowledges that “selected professionals in the chemical
and pharmaceutical industries can be expected to recognize
and understand that 7-keto indicates the presence of a
double bonded oxygen.” Id. Thus, 7-KETO describes a
characteristic or feature of applicant’s goods.
The Federal Circuit has held that even if a term is
not recognized as a descriptive term by the vast majority
of potential customers, it may still be descriptive.
Appellant asserts that the “vast majority” of its
customers would not be knowledgeable of the meaning of
“first tier” in the banking industry.

Appellant misunderstands the import of the above
decision [Abcor]. In context, “average” or “ordinary”
consumers simply refers to the class or classes of
actual or prospective customers of the applicant’s
particular goods or services. In this sense,
corporate users of banking services who, appellant
admits, understand the industry meaning of a “first
tier” bank are “average” or “ordinary” customers.
That corporate customers may constitute a smaller
number of accounts than individuals is irrelevant.
Descriptiveness is not determined by its meaning only
Ser. Nos. 75/426,140 and 530,919
8
to the class of regular customers with the largest
head count.

In re Omaha National Corp., 819 F.2d 1117, 2 USPQ2d
1859, 1861 (Fed. Cir. 1987).
Based on applicant’s admissions and the Examining
Attorney’s dictionary definition of record, it is clear
that at least some prospective purchasers of applicant’s
products would recognize the descriptive nature of 7-KETO
in relation to applicant’s goods. We do not have to decide
whether this small group is sufficient to hold that
applicant’s term is descriptive because the record amply
supports a finding that a much broader group of purchasers
would recognize 7-KETO in the marks as being merely
descriptive.
Even to those not familiar with the chemical qualities
of DHEA, the literature of companies marketing products
containing 7-KETO shows that 7-KETO describes a desirable
characteristic, feature, or ingredient of the dietary
supplements.
7 keto DHEA enhances thermogenesis or lean body mass.
VitaNet Health Foods; www.vitanet.net.

7 Keto is a naturally occurring metabolite of the
human hormone known as DHEA.
www.vitamins.com.

7-KETO DHEA is a naturally occurring metabolite
derived from DHEA (dehydroepiandrosterone).
www.athleticnutrition.com.
Ser. Nos. 75/426,140 and 530,919
9

7-keto DHEA is a hormone similar to DHEA, and
touted as having many of the benefits of DHEA…
www.raysahelian.com

Purchasers, after viewing this information, would
understand that 7-Keto is a metabolite that is similar to
DHEA. Furthermore, because of 7-Keto’s touted ability to
enhance lean body mass and the body’s ability to burn
calories without the side effects of DHEA, the inclusion of
7-Keto would certainly be a significant feature and
characteristic of goods containing 7-Keto derivatives of
DHEA. Applicant’s patent likewise uses the term in a
descriptive manner.
Applicant’s other point is apparently that “even in
the event that a consumer would recognize and understand
that 7-keto indicates the presence of a double bonded
oxygen in the chemical structure … Knowledge as to the
presence of a double bonded oxygen structure does not
convey any meaningful information.” Applicant’s Br. at 3.
In effect, applicant argues that its term does not describe
a significant feature of the goods. While many prospective
customers of applicant’s products may not understand the
chemical composition, they certainly will understand that
7-keto describes a desirable characteristic of applicant’s
products. In a similar manner, most consumers are not
Ser. Nos. 75/426,140 and 530,919
10
aware of the chemical makeup of acetaminophen or how a
turbodiesel works, but when they are purchasing a pain
reliever or a motor vehicle purchasers would understand
that these terms are, at the very least, merely descriptive
of characteristics and features of the products.
Applicant argues that the evidence that the Examining
Attorney has made of record involves references to its
products and/or use of the term 7-Keto by its licensees.
Evidence of descriptive use of the term by applicant and
its licensees is relevant evidence to support a
descriptiveness finding. See Gyulay, 3 USPQ2d at 1010
(“Appellant argues that it is ‘unfair to use appellant’s
wholesale catalog to determine whether or not the trademark
APPLE PIE is descriptive.’ We discern no error or inequity
in the Board’s use of appellant’s catalog as evidence of
what it contains”). Even when applicant’s licensees use
the trademark symbol with the term, it is accompanied by
information that shows the term is descriptive. “The most
beneficial DHEA derivative isolated by the researchers is
7-keto-dehydroepiandrosterone (7-keto DHEA). Like DHEA, 7-
keto DHEA is associated with a variety of essential human
functions. Unlike, DHEA, 7-keto DHEA does not convert to
testosterone or estrogens.” Enzymatic Therapy Introduces
7-Keto™. Thus, even though this article sometimes uses the
Ser. Nos. 75/426,140 and 530,919
11
trademark symbol when referring to applicant’s products,
potential purchasers who read the article would likely
conclude that “7-keto” describes a type of DHEA derivative.
Because applicant or its licensees use the term to describe
the goods, it is likely that the public will likewise view
the term as merely descriptive. Therefore, the Examining
Attorney’s evidence supports the conclusion that the term
“7-keto” merely describes applicant’s goods, and the
Examining Attorney’s refusal to register and requirement
for a disclaimer are appropriate.
Decision: The Examining Attorney’s refusal to
register the mark in 7-KETO in Application No. 75/426,140
on the ground that it is merely descriptive of the
identified goods is affirmed. Also, the Examining
Attorney’s refusal to register the mark 7-KETO and design
without a disclaimer of the term 7-KETO in Application No.
75/530,919 is affirmed. Under 37 CFR § 2.142(g), the
decision with respect to the ‘919 application will be set
aside and the application returned to the Trademark
Examining Attorney to place it in condition for publication
for opposition if applicant, no more than thirty days from
the mailing date of this decision, submits an appropriate
disclaimer of the term “7-KETO.”