Jrm Nutrasciences LLC

Trademark Trial and Appeal Board

Nov 16, 2012

No. 85165397 (T.T.A.B. Nov. 16, 2012)

Mailed:
November 16, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Jrm Nutrasciences LLC
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Serial No. 85165397
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Thomas D. Foster, Esq. of TDFoster Intellectual Property
Law for Jrm Nutrasciences LLC.

Lindsey H. Rubin, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Holtzman, Zervas and Ritchie, Administrative
Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:

On October 29, 2010, Jrm Nutrasciences LLC
(“applicant”) filed an application to register MUSCLE SPORT
INTERNATIONAL (in standard character form) on the Principal
Register for the following International Class 5 goods:
Dietary and nutritional supplements; Herbal
supplements; Nutraceuticals for use as dietary
supplements; Weight loss dietary supplements;
Pre-workout energy powder drink mixes, namely,
THIS DECISION IS
NOT A PRECEDENT
OF THE T.T.A.B.
Ser. No. 85165397
2
nutritional supplement in the nature of a
nutrient-dense, protein-based drink mix.1

Applicant disclaimed the term INTERNATIONAL.
The examining attorney issued a final refusal under
Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the ground that applicant's mark is merely
descriptive of the intended use and characteristic of
applicant’s goods, as well as the scope of availability of
applicant’s goods. Specifically, the examining attorney
maintains that the proposed mark “immediately identifies to
consumers that applicant’s goods are used to build,
maintain, and aid in the recovery of muscles for people
participating in physically exertive activities, with those
goods being offered in more than one country.” Brief at
unnumbered p. 3.
Applicant has appealed the final refusal. We reverse.2

1 Application Serial No. 85165397, claiming first use and first
use in commerce on January 5, 2009.
2 We have not considered the almost seventy pages of exhibits
submitted with applicant’s brief, including one exhibit to which
the examining attorney has objected. The record closes with the
filing of a notice of appeal and the “Board will ordinarily not
consider additional evidence filed with the Board by the
applicant or by the examiner after the appeal is filed.”
Trademark Rule 2.142 (d); see generally Trademark Trial and
Appeal Board Manual of Procedure (TBMP) § 1207 (3d ed. rev.
2012). Also, while a handful of pages which are in the record
and which applicant believes are particularly pertinent to its
case may by submitted with a brief, applicant's resubmission of
approximately seventy pages of material that is already in the
record is duplicative and unnecessary.
Ser. No. 85165397
3
“A term is merely descriptive if it immediately
conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is
used.” In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed.
Cir. 1987). Whether a particular term is merely
descriptive is determined in relation to the goods or
services for which registration is sought and the context
in which the term is used, not in the abstract or on the
basis of guesswork. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215 (CCPA 1978); In re Remacle, 66
USPQ2d 1222 (TTAB 2002). In other words, the question is
not whether someone presented only with the mark could
guess the products listed in the description of goods.
Rather, the question is whether someone who knows what the
products are will understand the mark to convey information
about them. In re Tower Tech, Inc., 64 USPQ2d 1314 (TTAB
2002); In re Patent & Trademark Services Inc., 49 USPQ2d
1537 (TTAB 1998); In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); In re American
Greetings Corp., 226 USPQ 365 (TTAB 1985).
When two or more merely descriptive terms are
combined, the determination of whether the composite mark
also has a merely descriptive significance turns on the
question of whether the combination of terms evokes a new
Ser. No. 85165397
4
and unique commercial impression. 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. See In re
Tower Tech, Inc., 64 USPQ2d 1314 (SMARTTOWER merely
descriptive of commercial and industrial cooking towers).
In this regard, we must consider the issue of
descriptiveness by looking at the mark in its entirety.
Common words may be descriptive when standing alone, but
when used together in a composite mark, they may become a
valid trademark. See Concurrent Technologies Inc. v.
Concurrent Technologies Corp., 12 USPQ2d 1054 (TTAB 1989)
(CONCURRENT TECHNOLOGIES CORPORATION found not merely
descriptive of printed electronic circuit boards because,
while “concurrent” had meaning in the computer field,
“concurrent technologies” had no established meaning in
relation to computer hardware or software).
If, on the other hand, a mark requires imagination,
thought, and perception to arrive at the qualities or
characteristics of the goods, then the mark is suggestive.
In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778
(Fed. Cir. 2003); see also In re Tennis in the Round, Inc.,
199 USPQ 496 (TTAB 1978).
Ser. No. 85165397
5
In support of her refusal, the examining attorney
submitted into evidence (i) dictionary definitions of the
individual terms in the mark, (ii) numerous registrations
in which the terms MUSCLE or SPORT are disclaimed, and
(iii) webpages from applicant’s website and from third-
party websites which offer nutritional supplements for sale
with either MUSCLE or SPORT in the description of the
product, and (iv) search summaries on the Google search
engine for “sport supplement” and “muscle supplement.” The
examining attorney also relies on applicant’s statement in
its brief that the applicant’s goods “appeal to individuals
seeking to diet, obtain a lean physique, increase their
muscle growth, enhance their performance in sports, enhance
results from their exercise workout routine and enhance[]
their recovering from exercise and sporting endeavors.”
Brief at 1.
In support of its position that the mark is suggestive
rather than descriptive, applicant submitted numerous
third-party registrations for marks containing the terms
MUSCLE or SPORT where the terms are not disclaimed. Of
note is Registration No. 1594328 for
Ser. No. 85165397
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(USA and the map of the United States disclaimed) for,
inter alia, “entertainment services namely, the production,
preparation and presentation of television productions in
the field of fitness and body building.”3 Applicant also
argues that “muscle sport” is nebulous and does not
immediately describe a feature, purpose, quality or
characteristic of applicant’s goods; that it “could refer
to almost any type of sport since muscles are used in every
facet of a sporting event. Is this term a reference to
weightlifting or to table tennis or to racketball?” Brief
at 15.
When we consider each of the three words in the mark
together,4 and in the particular order that they appear, we
find that thought or imagination is needed to arrive at the

3 Another registration submitted by the applicant, Registration
No. 2334849 for the word mark MUSCLESPORT USA (USA disclaimed)
for “entertainment services, namely, a continuing show featuring
body building, health and weight lifting distributed over video
media,” has been cancelled.
4 We agree with the examining attorney that the term
INTERNATIONAL is merely descriptive of the scope of applicant’s
goods. In addition, applicant has disclaimed this term. There
is no dispute about the descriptiveness of the term
INTERNATIONAL.

Ser. No. 85165397
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meaning or significance proposed by the examining attorney.
MUSCLE SPORT appears to be a unitary term, with MUSCLE as
an adjective modifying SPORT, and the term as a whole
evoking the idea of a particular genre of sports.
(Applicant offers a comparison with “winter sports” at
p. 15 of its brief.) For this reason, we do not agree with
the examining attorney that the mark should be viewed a
union of three separate terms that each describe a
different feature of the goods, one indicating the goods
are used to build, maintain and aid in the recovery of
muscles, the second indicating that the goods are for
people participating in physically exertive activities, and
the third indicating that the goods are offered in more
than one country.
Further, what “muscle sport” refers to is not
immediately apparent. Because “muscle” is within the
proposed mark, it appears that “muscle sport” refers to a
sport where strength is important, such as body building5 or

5 See definition of bodybuilding taken from the online version of
The American Heritage Dictionary of the English Language, as “The
process of developing the musculature of the body through
specific types of diet and physical exercise, such as
weightlifting, especially for competitive exhibition.” (Emphasis
added.)
The Board may take judicial notice of dictionary definitions,
including online dictionaries which exist in printed format. See
In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB
2002). See also University of Notre Dame du Lac v. J. C. Gourmet
Ser. No. 85165397
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strength conditioning. Indeed, applicant’s goods are
directed to, inter alia, “dietary and nutritional
supplements” and “pre-workout energy powder drink mixes,
namely, nutritional supplement in the nature of a nutrient-
dense, protein-based drink mix.” In addition, applicant
states at p. 1 of its brief that its goods are suited for
increasing muscle growth, and one webpages made of record
by the examining attorney from applicant’s website states
that the MUSCLE SPORT INTERNATIONAL RHINO REVOLUTION
product “increases muscular strength,” “prevents muscle
fatigue” and “extreme muscle pumps.” There is no evidence
in the record that suggests that “muscle sport” is a
commonly understood reference to any particular sport or
activity, including body building or strength conditioning.
(In fact, other than the registrations noted earlier in
this decision for MUSCLESPORT USA, there is no evidence of
the use of “muscle sport” as a single term.) As the Board
stated in In re Shutts, 217 USPQ 363, 365 (TTAB 1983):
The concept of mere descriptiveness, it seems to
us, must relate to general and readily
recognizable word formulations and meanings,
either in a popular or technical usage context,
and should not penalize coinage of hitherto
unused and somewhat incongruous word combinations
whose import would not be grasped without some
measure of imagination and “mental pause.”

Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser. No. 85165397
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See also, Tennis in the Round, 199 USPQ at 498 (the
association of applicant's mark TENNIS IN THE ROUND with
the phrase “theater-in-the-round” creates an incongruity
because applicant's tennis courts are not analogous to a
theater-in-the-round).
Turning to the dueling third-party registrations in
the record which are more or less equal in number and where
MUSCLE or SPORT have been or have not been disclaimed, they
are of limited assistance in resolving the issue before us.
Further, the examining attorney’s website evidence and the
Google search results, while they include the individual
terms “muscle” and “sport,” do not demonstrate use of both
“muscle” and “sport,” or “muscle” and “sport” juxtaposed
next to one another. Thus, we find that a potential
purchaser presented with the proposed mark and the goods
would require imagination, thought or perception to
conclude that the proposed mark describes a feature or
characteristic of the goods. See Concurrent Technologies,
supra.
To the extent we have any doubt as to the mere
descriptiveness of the mark as a whole in connection with
the identified services, we resolve such doubt in
applicant's favor and publish the mark for opposition. In
Ser. No. 85165397
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re The Stroh Brewery Co., 34 USPQ2d 1796, 1797 (TTAB 1994)
(“When doubts exist as to whether a term is descriptive as
applied to the goods or services for which registration is
sought, it is the practice of this Board to resolve doubts
in favor of the applicant and pass the mark to publication
with the knowledge that a competitor of applicant can come
forth and initiate an opposition proceeding in which a more
complete record can be established.”).
We therefore conclude that the mark is not merely
descriptive of a feature or characteristic of the goods, as
maintained by the examining attorney.
Decision: The refusal to register is reversed.