Inguran, LLC

Trademark Trial and Appeal Board

Nov 13, 2014

No. 85651219 (T.T.A.B. Nov. 13, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 13, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Inguran, LLC
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Serial No. 85651219
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Cheryl L. Anderson and Craig R. Miles of CR MILES PC for Inguran, LLC.

Mark Sparacino, Trademark Examining Attorney, Law Office 103,
Michael Hamilton, Managing Attorney.
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Before Quinn, Kuhlke and Ritchie,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Inguran, LLC (“Applicant”) applied for registration on the Principal Register of
the mark for services ultimately identified as “animal
husbandry, namely, feeding of livestock for others,” in International Class 44.1
The Examining Attorney refused registration pursuant to Section 6(a) of the
Trademark Act, 15 U.S.C. § 1056(a), based on Applicant’s failure to comply with the

1 Application Serial No. 85651219 was filed under Section 1(a) of the Trademark Act, 15
U.S.C. § 1051(a) based on an allegation of first use and first use in commerce on May 1,
2012.
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requirement to disclaim the wording “GENETIC DEVELOPMENT CENTER” on
the ground that the wording is merely descriptive of Applicant’s services within the
meaning of Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).
When the refusal was made final, Applicant appealed and filed a request for
reconsideration. The Examining Attorney denied the request for reconsideration
and maintained the refusal. The Examining Attorney and Applicant filed briefs. We
affirm the refusal to register.
An examining attorney may require an applicant to disclaim an unregistrable
component of a mark otherwise registrable. Trademark Act Section 6(a). Merely
descriptive terms are unregistrable, under Trademark Act Section 2(e)(1) and,
therefore, are subject to disclaimer if the mark is otherwise registrable. Failure to
comply with a disclaimer requirement is a ground for refusal of registration. See In
re Stereotaxis, Inc., 429 F.3d 1039, 77 USPQ2d 1087 (Fed. Cir. 2005); In re Omaha
National Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re Richardson
Ink Co., 511 F.2d 559, 185 USPQ 46 (CCPA 1975); In re Ginc UK Ltd., 90 USPQ2d
1472 (TTAB 2007); In re National Presto Industries, Inc., 197 USPQ 188 (TTAB
1977); and In re Pendleton Tool Industries, Inc., 157 USPQ 114 (TTAB 1968).
“A mark is merely descriptive if it ‘consist[s] merely of words descriptive of the
qualities, ingredients or characteristics of’ the goods or services related to the
mark.” In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed.
Cir. 2004), quoting, Estate of P.D. Beckwith, Inc. v. Commissioner, 252 U.S. 538, 543
(1920). See also In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778,
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1780 (Fed. Cir. 2003). The determination of whether a mark is merely descriptive
must be made in relation to the goods or services for which registration is sought. In
re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012); In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978) (determination of mere descriptiveness must be made not in the abstract, but
in relation to the goods or services for which registration is sought, the context in
which the mark is used, and the impact that it is likely to make on the average
purchaser of such goods or services).
The test for determining whether a mark is merely descriptive (or terminology
that is the subject of a disclaimer requirement) is whether it immediately conveys
information concerning a significant quality, characteristic, function, ingredient,
attribute or feature of the product or service in connection with which it is used, or
intended to be used. In re Engineering Systems Corp., 2 USPQ2d 1075 (TTAB 1986);
In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). It is not necessary, in order to
find a mark merely descriptive, that the mark describe each feature of the goods or
services, only that it describe a single, significant ingredient, quality, characteristic,
function, feature or purpose of the goods or services. In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009 (Fed. Cir. 1987). See also In re Stereotaxis, Inc., 77 USPQ2d at 1089
(affirming Board’s finding that STEREOTAXIS is merely descriptive of nature,
purpose or function of applicant’s goods).
Where a mark consists of multiple words, the mere combination of descriptive
words does not necessarily create a nondescriptive word or phrase. In re Associated
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Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). 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, 71 USPQ2d at 1371. However, a mark comprising a combination of
merely descriptive components is registrable if the combination of terms creates a
unitary mark with a unique, nondescriptive meaning, or if the composite has a
bizarre or incongruous meaning as applied to the goods or services. See In re
Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968); In re Shutts, 217
USPQ 363 (TTAB 1983); and TMEP § 1209.03(d).
Throughout prosecution of the application, the Examining Attorney has required
the disclaimer of the entire phrase GENETIC DEVELOPMENT CENTER. In its
first response filed on February 28, 2013, Applicant offered an amendment to
disclaim the word CENTER. In its request for reconsideration filed on March 6,
2014, Applicant offered a disclaimer of the term DEVELOPMENT “solely for the
purpose of continuing the progress of the application.” In the September 12, 2013
final Office Action, the Examining Attorney acknowledged that Applicant “has
already disclaimed CENTER” and highlighted the evidence supporting the
conclusion that CENTER is merely descriptive. See third-party registrations
attached to August 29, 2012 Office Action (Reg. No. 3893069 for the mark
INNOVATION CENTER FOR U.S. DAIRY with CENTER FOR U.S. DAIRY
disclaimed; Reg. No. 3503620 for the mark MILK & DAIRY BEEF QUALITY
ASSURANCE CENTER, INC. with MILK & DAIRY BEEF QUALITY
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ASSURANCE CENTER, INC. disclaimed). In the denial of the request for
reconsideration, the Examining Attorney did not comment on the subsequent offer
to disclaim the word DEVELOPMENT but simply maintained the requirement to
disclaim the entire phrase.
The Examining Attorney argues that:
Applicant is a “center” that provides feed services used by
customers for “genetic development” of livestock.
Therefore GENETIC DEVELOPMENT CENTER merely
describes a purpose of the services and must be
disclaimed.
Applicant’s feed services include an advanced
technological system that provides the ability to monitor
and provide information regarding the animals that are
being fed. This information is then used by applicant’s
customers for the purpose of “genetic development” of
their animals.
Ex. Att. Br. p. 3.
The Examining Attorney points to Applicant’s website to show the specifics of
Applicant’s livestock feeding services, noting that the webpage “states that with the
use of feed efficiency, producers can accurately measure which cattle to keep and
which cattle to cull and further states that ‘When a producer is aware of the genetic
performance traits of their cattle they can make decisions that will be economically
viable and beneficial.’” Ex. Att. Br. p. 7. The Examining Attorney explains that
Applicant’s feed services include providing information to the customer for the
purpose of genetic development of the customers’ animals. The Examining Attorney
concludes that Applicant’s services are used by customers for the purpose of genetic
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development of the livestock and, as such, the entire phrase GENETIC
DEVELOPMENT CENTER is merely descriptive of those services.
In support of the disclaimer requirement, the Examining Attorney submitted
excerpts from Applicant’s website and certain third-party websites.
Feed efficiency and its effect on genetic development are discussed in an article
on the GrowSafe website:
Residual Feed Intake … Improving the feed efficiency of
beef cattle herd can mean big savings for producers … On
average, it costs $50 less over 112 days to feed an efficient
bull compared to an inefficient one. An efficient bull will
pass on superior genetics for feed efficiency to his
progeny, which will be realized as feed savings for calves
in the feedlot and for replacement heifers entering the
cowherd.
www.growsafe.com, attached to Office Action (March 13, 2013) p. 8.
The article in “Cattle Today” describes feed efficiency rates as a way of looking
for that trait in cattle and pointing to research that shows it is handed down, i.e., it
is a genetic trait:
With RFI, a lower number is more beneficial … “This
information can be utilized in the selection of bulls
expected to sire calves with lower finishing feed costs and
daughters with lower feed maintenance requirements,” …
Taking the Genetic Step … Ultimately, as with other
individual animal measures, the keystone value of
individual animal RFI data will come with its
incorporation into Expected Progeny Differences (EPDs)
and other genetic prediction tools. “Heritability of feed
efficiency has been estimated to be moderate, with values
ranging from .28 to .44. These values indicate that genetic
variation among and within beef cattle populations does
exist for feed efficiency, making genetic selection
possible,” says Allan. Some breed associations already
offer EPDs based upon RFI. … As well, some genomics
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companies offer individual DNA tests for RFI or as part of
overall genetic profiles. …
RFI Value … efficient growing animals (as measured by
RFI) are efficient as adult cattle. As well, progeny of
efficient beef cattle are also more efficient than those of
less efficient cattle. Further, the folks at AARD say this
same research shows that selection for low RFI can: lower
maintenance requirements of the cow herd by 9-10
percent …
www.cattletoday.com, attached to Office Action (March 13, 2013) p. 13.
The following excerpt comes from an article on the website “Beef Central”:
NSW DPI beef cattle officer Todd Andrews discusses the
concept of Net Feed Intake and its use as a measure of
feed efficiency for the purpose of genetic development.
Net feed intake measures whether an animal eats more or
less than expected for its weight and growth rate over a
test period. Low NFI animals eat less than expected and
are therefore more efficient.
The growth and economic advantages of efficient (low
NFI) over inefficient (high NFI) steers in feedlots is
consistent and heritable in paddock and feedlot trials.
For example, several comparisons of high and low
efficiency lines developed from a single Angus beef herd at
Trangie, NSW, have shown a considerable range in
efficiency.
www.beefcentral.com, attached to Office Action (March 18, 2014) p. 15.
In the online periodical “The Brahman Journal,” an article about Applicant
describes it as follows:
A new cattle development program south of College
Station TX is turning out to be an eye opener. The Genetic
Development Center is a fully functional bull and heifer
development facility opening July 1.
Like any other gain test, producers will be able to develop
and grow their bulls and heifers measuring average daily
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gains, yearling weight measurements, carcass ultrasound
data, etc. However, the GDC offers a unique twist, a
technology truly capable of identifying cattle that “do
more with less.”
The GDC comes fully equipped with individual animal
intake measurement equipment developed in Canada
called GrowSafe Systems Ltd. …
The GrowSafe individual intake measurement systems
measure true feed efficiency. They allow for the selection
of animals that gain the same, or more, than their
counterparts but consume fewer pounds per day to do it.
The GDC is designed for bi-annual gain tests aimed at
developing bulls and heifers of all breeds. During one gain
test, the maximum capacity is set for 640 head. So, with
two tests per year the GDC can successfully develop 1,280
head of bulls and replacement heifers to a saleable weight
and condition while at the same time measuring
individual animal efficiencies.
http://brahmanjournal.com, attached to Office Action (August 29, 2012) p. 12.
The following excerpt referencing Applicant and one of its customers comes from
the online publication “The Beefmaster Cowman”:
Not only does Lyssy Beefmasters use breeding
technologies, they also believe in performance tested
animals. Lyssy Beefmasters has taken several of their
Beefmaster bulls to the Genetic Development Center in
Navasota, Texas, in order to measure genetic performance
through multiple feed intake tests. At Lyssy Beefmasters
they firmly believe “you can’t manage what you can’t
measure,” so they continue to use the performance testing
facility as a tool to select true performance genetics, add
value to their product, and add confidence in their
customer’s purchases.
http://beefmastercowman.com, attached to Office Action (March 18, 2014) p. 47.
Applicant’s own website explains its livestock feeding service as follows:
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At the Genetic Development Center we keep up with all
the latest technologies and help breeders take the guess
work out of breeding cattle.
Instead of taking years to determine which cattle are your
top performers in your herd, you can now use genetic
testing and reduce the time to make decisions about the
performance of your cattle. Since performance measures
are constantly evolving as new technology is introduced to
the field, it is important to partner with a company that is
on the cutting edge of this technology. At the Genetic
Development Center we pride ourselves on having all of
the latest technologies.
We are committed at the Genetic Development Center on
staying current with all the latest technology in order to
provide our producer partners with relevant and usable
data that will bring them added value to their program.
With the use of ultrasound, fertility testing and feed
efficiency testing, producers can accurately measure
which cattle to keep in their herd and which cattle they
should cull. The data we provide to the commercial
cowman at the Genetic Development Center will have a
positive economic impact on their program. When a
producer is aware of the genetic performance traits of
their cattle they can make decisions that will be
economically viable and beneficial. …
The Genetic Development Center is designed for bi-
annual gain tests aimed at developing bulls and heifers of
all breeds. During one gain test, the maximum capacity is
set for 640 head. So, with two tests per year the Genetic
Development Center can successfully develop 1280 head
of bulls and replacement heifers to a saleable weight and
condition while at the same time measuring individual
animal efficiencies. …
The rancher who implements creative feeding strategies
and using the latest cutting edge technology of genetics
will be more efficient and hence more profitable. .. That is
why the Genetic Development Center is committed to
providing the commercial cowman with as much
information as possible to help them become as efficient
as possible. … At the Genetic Development Center we can
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provide the commercial cattleman with data showing him
which steer is more feed efficient.
At the Genetic Development Center we encourage the
commercial cowman to select for feed-efficient females. …
Improvements to the cowherd can be made indirectly
through retaining the daughters of particularly feed-
efficient sires, or directly through actual testing of
replacement heifers. At Genetic Development Center we
test both bulls and heifers, giving the commercial cowman
the knowledge they need to select their most feed efficient
genetics. …
Testimonials … When sending your bulls to the Genetic
Development Center you can expect your bulls to come
back fully develop to the peak of their genetic potential,
return home with good dispositions and they have all the
performance data possible collected. … We will continue
to use the performance testing facility at the Genetic
Development Center as we [feel] it aids us in selecting for
true performance genetics, adds value to our product, …

www.geneticdevelopmentcenter.com, attached to Office Action
(September 12, 2013) pp. 3-10.
Applicant argues that it “does not provide genetic testing of the animals in its
care (i.e., does not test for genetic markers for feed efficiency or other traits).
Applicant simply feeds the animals under the oversight of an animal nutritionist
and provides feed efficiency performance evaluation for them. Genetic correlation
with the performance results would have to be obtained by the customer from
another source if they wish to pursue it. Applicant does not breed the animals in its
care or alter their genetics in any way.” App. Br. pp. 3-4. Applicant further explains
that although “it may provide feed efficiency evaluation information to its
customers, Applicant does not have any control over the uses which may or may not
be made of it.” App. Br. p. 9. Applicant argues that:
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[T]he Examiner disregards the fact that Applicant seeks
to register the Mark for livestock feeding services.
Applicant’s feed efficiency evaluation services merely
measure feed utilization performance; the extent to which
this may be genetically determined or influenced is
presently uncertain, as the evidence provided by the
Examiner in the various Office Actions makes clear.
Applicant does not attempt to control all variables that
may contribute to the observed feed efficiency results for a
particular animal. Factors such as age, gender, past or
present illness or injury, medication, weather, season,
feed composition, activity, stress, and the like, may also
influence feed intake and utilization. Owners must
interpret the data they receive in light of potential
contributing variables and must seek further testing from
other sources if they wish to evaluate an animal’s actual
genetics. … Applicant makes this information available to
its customers as well so that they may consider it in
making herd management decisions such as which
animals to breed, which animals may be most productive
in certain environments or under certain conditions, what
to feed, how much to feed, which animals to feed together,
and so on. Applicant asserts no control over what is done,
if anything, with the information provided to its
customers. Applicant does not provide ‘genetic testing’ or
modification of the animal’s genetics. The animals have
the same genetics when they leave as they do when they
arrive. While the information Applicant provides may be
beneficial to individual animals or animal herds owned by
its customers, the benefits are indirect and uncontrolled
by Applicant and may therefore best be viewed as
aspirational in nature.
App. Br. pp. 10-13.
Applicant further explains that:
Directly linking efficiency to an animal’s genetics requires
DNA testing or modification, identification or genetic
marks, cellular and molecular biology, or the like.
Applicant’s feed efficiency testing (services for which
applicant has not sought registration) empirically adds to
the information available about an animal. How that
information is used is solely within the discretion and
control of the customer. Applications of the information
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provided by Applicant to its customers for herd
management decision-making may include, for example,
what to feed, how much to feed, whether to supplement,
what to supplement, who to graze under what conditions,
for how long, and on what forage.
Reply Br. p. 3.
The evidence shows that Applicant’s livestock feeding services encompass feed
efficiency evaluation and that Applicant “makes this information available to its
customers … so that they may consider it in making herd management decisions
such as which animals to breed.” App. Br. p. 12. The evidence further shows that
monitoring feed efficiency is a method to assist ranchers in enhancing the genetic
development of the herd. Taken in the context of Applicant’s services, the phrase
“GENETIC DEVELOPMENT CENTER” immediately informs the consumer of a
significant feature of Applicant’s services, namely they assist the rancher in the
genetic development of their herd by “measuring genetic performance through
multiple feed intake tests.” www.beefmastercowman.com.
Applicant contends that the meaning of the term “genetic development” is vague
and used in connection with services Applicant does not provide. However, that
“genetic development” may also have descriptive significance when used in
connection with other genetic services, such as cellular or molecular genetic
services, does not remove its descriptive significance in the context of Applicant’s
livestock feeding services. In re Franklin Cnty. Historical Soc’y, 104 USPQ2d 1085,
1087 (TTAB 2012) (“That a term may have other meanings in different contexts is
not controlling.”) While other approaches are available for “genetic development” of
a feed efficiency trait, for example, DNA tests (see www.cattlemailusa.com attached
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to Office Action (March 13, 2013) p. 4), that does not remove the immediacy of
understanding the meaning of “genetic development” in connection with Applicant’s
livestock feeding services.
We are also not persuaded by Applicant’s reliance on its identification to limit
the applicability of the term GENETIC DEVLOPMENT. We first note that the
identification “animal husbandry, namely, feeding of livestock for others” is broad
enough to encompass the more specific efficient livestock feeding, and measuring
the amount of feed intake is an ordinary aspect of feeding livestock. We further
observe that the tactical move to specifically omit those aspects of an applicant’s
actual services for which a term may be merely descriptive, may not assist the
applicant. Cf. In re DNI Holdings Ltd., 77 USPQ2d 1435, 1438 (TTAB 2005)
(“[D]espite applicant’s tactical decision to carve them out of its recitation of services,
we find that the relevant genus of services herein includes wagering on sporting
events.”)
Decision: The refusal to register Applicant’s mark is affirmed. However, if
Applicant submits the required disclaimer to the Board within two months of the
mailing date of this decision, this decision will be set aside as to the affirmance of
the disclaimer requirement.2 See Trademark Rule 2.142(g), 37 C.F.R. § 2.142.

2 The standardized printing format for the required disclaimer is as follows: “No claim is
made to the exclusive right to use GENETIC DEVELOPMENT CENTER apart from the
mark as shown.” TMEP § 1213.08(a) (2014).