Intelligent Nutrients, LLC

Trademark Trial and Appeal Board

Jun 6, 2007

No. 78513904 (T.T.A.B. Jun. 6, 2007)

Mailed:
June 6, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Intelligent Nutrients, LLC
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Serial No. 78513904
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Sherri L. Rohlf of Siegel, Brill, Groupner, Duffy & Foster,
P.A. for Intelligent Nutrients, LLC.

Cynthia Sloan, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Quinn, Grendel and Mermelstein, Administrative
Trademark Judges.

Opinion by Grendel, Administrative Trademark Judge:

Applicant seeks registration1 on the Principal Register
of the mark FLAVOR-AROMATHERAPY (in standard character

1 Serial No. 78513904, filed November 9, 2004. The application
is based on applicant’s allegation of bona fide intention to use
the mark in commerce, under Trademark Act Section 1(b), 15 U.S.C.
§1051(b).

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 78513904
2
form) for goods and services identified in the application
as follows:2

Class 1: Artificial sweeteners;

Class 3: Hair care products, namely shampoos,
conditioners, spray and sculpting gels, hair color and
waving lotion; skin care products namely moisturizers,
toners, skin cleaning creams, lotions and gels, body and
facial lotions, masks and astringents for cosmetics
purposes; cosmetics, namely lipstick, eye shadow,
foundation, blush, face powder, concealer, eye pencils, lip
pencils and mascara; personal hygiene products, namely bath
gels, beauty gels, eye gels, fragrances for personal use,
body, cosmetic, skin, hair and face oils and lotions, skin
creams, skin lotions, skin emollients, moisturizing oils
and lotions, perfumes and colognes; and household cleaning
products, namely all purpose cleaners, detergents for use
on dishes, laundry detergents for use on fabric and
cleaning preparations for use on floors, walls, windows and
bathrooms; incense and room fragrances; food additives,
namely essential oils for use in the manufacture of food
and beverages, namely, candy, alcoholic and non-alcoholic
beverages, in Class 3;

Class 4: Candles;

Class 5: Dietary supplements; room deodorants; throat
lozenges;

Class 30: Foods, namely spices, teas, candy, coffee,
candy breath mints and non-medicated lozenges, natural
sweeteners and granola based snack bars;

Class 32: Powders, sprays and essences for use in
making soft drinks, liqueurs and mineral waters; and

2 Several amendments to the identification of goods and services
were proffered by applicant in its appeal brief, i.e.: “natural
sweeteners” moved from Class 1 to Class 30; corrected spelling of
“concealer” in Class 3; and specification of the goods and
services which are the subject of the Class 35 distributorship
and retail services. In her appeal brief, the Trademark
Examining Attorney has accepted these amendments. The Board shall
enter these amendments into the application record.
Ser. No. 78513904
3
Class 35: Wholesale distributorship, retail store,
on-line store and mail order services featuring food
products, hair care products, skin care products,
cosmetics, personal hygiene products, perfumes and
colognes, household cleaning products, essential oils,
dietary supplements, beverages and beverage mixes, liquors,
mineral water, natural and artificial sweeteners, and
candles.

At issue in this appeal is the Trademark Examining
Attorney’s final refusal to register applicant’s mark on
the ground that it is merely descriptive of the identified
goods and services. Trademark Act Section 2(e)(1), 15
U.S.C. §1052(e)(1).3 After careful consideration of all of
the evidence of record and the arguments of counsel
(including evidence and arguments not specifically
discussed in this opinion), we affirm the refusal to
register.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Trademark Act 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. See, e.g., 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,
217-18 (CCPA 1978). A term need not immediately convey an

3 The Trademark Examining Attorney also had made a final refusal
under Trademark Act Section 2(d), 15 U.S.C. §1052(d), but has
expressly withdrawn that refusal in her appeal brief.

Ser. No. 78513904
4
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. See In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods or services for
which registration is sought, the context in which it is
being used on or in connection with those goods or
services, and the possible significance that the term would
have to the average purchaser of the goods or services
because of the manner of its use. That a term may have
other meanings in different contexts is not controlling.
In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Moreover, it is settled that “[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 or services are will
understand the mark to convey information about them.” In
re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002).
See also In re Patent & Trademark Services Inc., 49 USPQ2d
1537 (TTAB 1998); In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American
Ser. No. 78513904
5
Greetings Corporation, 226 USPQ 365 (TTAB 1985). Finally,
a mark which is merely descriptive of goods is also deemed
to be merely descriptive of services involving those goods.
Cf. In re A La Vielle Russie, Inc., 60 USPQ2d 1895 (TTAB
2001).
Applying these principles to the present case, we find
as follows.
According to the dictionary definition made of record
by the Trademark Examining Attorney, “flavor” is defined as
“distinctive taste; savor.” The American Heritage
Dictionary of the English Language (4th ed. 2000). This
dictionary also includes an “archaic” definition of
“flavor” as “aroma; fragrance.” Based on this dictionary
definition, we find that the word FLAVOR in applicant’s
mark is directly and immediately descriptive of a feature
or characteristic of certain of the identified goods. The
artificial sweeteners in Class 1, the food additives in
Class 3, the dietary supplements and throat lozenges in
Class 5, the food products in Class 30 and the beverage
products in Class 32 all are products as to which a key
characteristic or feature is their flavor. The mere
descriptiveness of FLAVOR is further evidenced by the ten
third-party registrations made of record by the Trademark
Examining Attorney, which are of marks which include FLAVOR
Ser. No. 78513904
6
and in which FLAVOR is disclaimed or registered pursuant to
Section 2(f), and which cover a variety of food and
beverage products as well as medicinal products.
The record shows that “aromatherapy” is defined as
“the use of natural essential oils in a variety of
treatments to relieve symptoms, promote healing, and reduce
tension.” The Penguin English Dictionary (2000). Also
made of record by the Trademark Examining Attorney are ten
third-party registrations of marks which include
AROMATHERAPY and in which the word is disclaimed or
registered pursuant to Section 2(f). These registrations
cover a variety of goods including personal care products
such as skin care and hair care products, cosmetics,
fragrances, air fresheners, candles, and food products.
There also is evidence showing that the essential oils
which are used in aromatherapy are ingredients in many of
the goods identified in the application, being used in such
products for the aromatherapy benefits they provide. See
applicant’s own website (www.intelligentnutrients.com):

Flavor-aromatherapy oils can be added to drinks
and desserts, taken directly in specified
dosages, or worn on the body for added nutrition
and function. They can also be worn on the body
for additional nutritional and aromatic benefit;
An on-site chocolatier will offer “flavor
aromatherapy” treats – 100% organic chocolate
nutraceuticals infused with various essential
Ser. No. 78513904
7
oils and herbal extracts to address specific
health requirements.

See also:

- www.kathysherbshop.com:

Essential oils are wonderful plant concentrates
that are used as fragrances, massage oils, in
aromatherapy, topically, internally, and
medicinally. ... Essential oils are fun to use
at home because of their many uses. ... Allspice
Berry Oil: this distilled oil is a natural
flavor that can be used in cooking as well as
aromatherapy. Basil Oil: This sweet-tasting
distilled oil can be used as a flavoring and in
aromatherapy. ... Grapefruit Oil: this cold-
pressed oil has an uplifting, pleasant aroma that
can be used in foods for flavor or in
aromatherapy.

- www.leydet.com: “Cooks all over the world are
discovering the wonderful qualities of essential oils
extracted from herbs and plants ... and many other fragrant
essences can be taken orally and used to enhance the flavor
and healing properties of your food. Aromatherapy in your
daily life...”;
- www.uncommonscents.com: “Filled with all natural
essential oils, salts, minerals, scents and flowers, Bath
Ice Cream is designed to fizz when it comes in contact with
water. Each Bath Ice Cream Flavor creates a carbonating
reaction that releases its oils, minerals and scents into
Ser. No. 78513904
8
the tub and air ... The aromatherapy based flavors will
last beyond your bathroom walls...”;
- www.wqn.tolshop.com: offering a gift basket which
includes “a set of two fruit flavor aromatherapy soaps”;
- www.aroma-massage.com: “Aromatherapy Self Care
Products ... Aroma Natural Aromatherapy Candles: These are
the best, most authentic aromatherapy candles on the
market. Each ‘flavor’ features aromatherapy-grade
essential oils in sumptuous combinations and beautiful
natural colors.” Choices include “peppermint and
eucalyptus,” “orange and lemongrass,” and “grapefruit and
petitgrain.”
Based on this evidence, we find that AROMATHERAPY is
merely descriptive of the goods identified in the
application, all of which present or feature their pleasant
scent as an important characteristic.
Applicant argues that although the words FLAVOR and
AROMATHERAPY, considered separately, might have descriptive
significance as applied to the goods, the combination of
the two words into FLAVOR-AROMATHERAPY results in a
composite mark which is incongruous and thus inherently
distinctive. Applicant argues: “In this case, the word
combination of “FLAVOR-AROMATHERAPY” is incongruous in that
the sense of taste or flavor is not related to
Ser. No. 78513904
9
aromatherapy, which is defined as ‘the use of essential
oils in a variety of treatments to promote healing and
reduce tension.’” We are not persuaded by this argument.
First, “flavor” and “aromatherapy” are not an
incongruous combination because the record is replete with
examples showing that aromatherapy scents and varieties are
called “flavors.” In addition to the websites quoted above
which use “flavors” to describe aromatherapy scents
(www.uncommonscents.com - “the aromatherapy based flavors
will last beyond your bathroom walls...”;
www.wqn.tolshop.com - “a set of two fruit flavor
aromatherapy soaps”; and www.aroma-massage.com - “each
‘flavor’ features aromatherapy-grade essential oils in
sumptuous combinations”) see also the other websites of
record which do likewise, including:
- www.drugpolicy.org: “The device is to be used in
conjunction with an aromatherapy flavor delivery device
such as an aromatherapy hookah waterpipe”;
- www.all-candles.com: “The light lemon flavor of
this lemongrass aromatherapy candle blends well with other
herbs”; and
- Packaging Digest (Feb. 1998): “ANR can attest,
there’s been a profusion of aromatherapy products in every
conceivable flavor and form.”
Ser. No. 78513904
10
Second, and more significantly, the evidence of record
shows merely descriptive use of the very term sought to be
registered by applicant. From the websites cited above,
see, e.g., www.wqn.tolshop.com: “a set of two fruit flavor
aromatherapy soaps”; and www.aroma-massage.com: “each
‘flavor’ features aromatherapy-grade essential oils...”
Applicant’s own website (www.intelligentnutrients.com)
includes the following merely descriptive usage of the
term:

The IN will also feature flavor-aromatherapy
essential oils and highly nutritional oils...;
Flavor-aromatherapy oils can be added to drinks
and desserts, taken directly in specified
dosages, or worn on the body for added nutrition
and function. They can also be worn on the body
for additional nutritional and aromatic benefit;
An on-site chocolatier will offer “flavor
aromatherapy” treats – 100% organic chocolate
nutraceuticals infused with various essential
oils and herbal extracts to address specific
health requirements.

Based on all of the evidence as discussed above, we
find that FLAVOR and AROMATHERAPY each are merely
descriptive of applicant’s goods and services, and that the
combination of the two words does not create an incongruous
or otherwise inherently distinctive composite.
We note applicant’s argument that there is a third-
party registration of record of the mark FLAVOR THERAPY
Ser. No. 78513904
11
(FLAVOR disclaimed) for essential oils used in connection
with food and beverages, medicinal products, personal care
products, and vitamin/mineral supplements. Applicant
argues that this registered mark is more descriptive than
applicant’s mark is, yet it is registered. We are not
persuaded. Each case must be decided on its own record,
and the presence of other arguably similar marks on the
register does not justify registration of an applicant’s
mark where the evidence of record clearly establishes the
mere descriptiveness of that mark. In re Nett Designs
Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001).
In summary, we conclude without doubt that FLAVOR-
AROMATHERAPY is merely descriptive of the goods (in Classes
1, 3, 4, 5, 30, and 32) identified in applicant’s
application. We also find that the mark is merely
descriptive of the recited Class 35 services which involve
or consist of the wholesale and retail selling of such
goods. Cf. In re A La Vielle Russie, Inc., supra. The
mark therefore is unregistrable pursuant to Trademark Act
Section 2(e)(1).

Decision: The refusal to register is affirmed.