JRM NutraSciences, LLC

Trademark Trial and Appeal Board

May 31, 2019

87453921 (T.T.A.B. May. 31, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 31, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re JRM NutraSciences, LLC
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Serial No. 87453921
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Thomas D. Foster of TDFoster - Intellectual Property Law,
for JRM NutraSciences, LLC.
Andrea D. Saunders, Trademark Examining Attorney, Law Office 117,
Hellen Bryan-Johnson, Managing Attorney.
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Before Kuczma, Pologeorgis, and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
JRM NutraSciences, LLC (“Applicant”) seeks registration on the Principal
Register of the mark DNA PHARMA (in standard characters) for “dietary and
nutritional supplements” in International Class 5.1
The Trademark Examining Attorney (“Examining Attorney”) refused registration
of Applicant’s mark under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on

1 Application Serial No. 87453921, filed on May 18, 2017 under Trademark Act Section 1(a),
15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere since at least as early
as January 31, 2015 and first use in commerce since at least as early as February 28, 2015.
Serial No. 87453921
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the ground that Applicant’s mark, in its entirety, is merely descriptive of the goods
identified in its application. During the prosecution of Applicant’s involved
application, the Examining Attorney twice: (1) offered that Applicant could seek
registration on the Supplemental Register pursuant to Trademark Act Section 23, 15
U.S.C. § 1091; and (2) required that Applicant disclaim exclusive rights to the term
“Pharma” apart from the Applicant’s mark as a whole pursuant to Trademark Act
Section 6(a), 15 U.S.C. § 1056(a).2 Applicant did not address these points in its
responses to the Office Actions, but simply argued that its DNA PHARMA mark as a
whole was not merely descriptive of the goods and thus registrable.3
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed.4 We affirm the refusal to register.

2 August 18, 2017 Office Action, TSDR 4-5; and March 9, 2018 Office Action, TSDR 4. Page
references herein to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (“TSDR”) database. Coming after the TSDR
designation are the page references to the application record in .pdf downloadable format.
References to the Board’s interim Orders and the parties’ briefs on appeal refer to the Board’s
TTABVUE docket system. Coming before the designation TTABVUE is the docket entry
number; and coming after this designation are the page references, if available and
applicable.
3 See February 16, 2018 Response to Office Action and June 11, 2018 Request for
Reconsideration.
4 After Applicant and the Examining Attorney submitted their briefs, Applicant (1) offered
to voluntarily disclaim exclusive rights to the term “DNA” apart from the Applicant’s mark
as a whole; and (2) requested that its application be remanded to the Examining Attorney to
reconsider and withdraw the merely descriptive refusal to register Applicant’s mark. 7
TTABVUE. The Board denied Applicant’s request for remand, stating: “Applicant has
requested to enter a disclaimer [of DNA] and it does not appear that the proposed disclaimer
would obviate the Examining [A]ttorney’s refusal. Also, Applicant’s reply brief would be due
at this late stage of this appeal. Consequently, Applicant’s request for remand is denied as
Applicant has not shown good cause for its request for remand.” 8 TTABVUE.

Serial No. 87453921
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I. Applicable Law – Mere Descriptiveness
A mark is 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. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217,
1219 (Fed. Cir. 2012); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir.
1987).
Whether a mark is merely descriptive is determined in relation to the goods or
services for which registration is sought and the context in which the mark is used,
not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811,
200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).
In other words, we evaluate whether someone who knows what the goods or services
are will understand the mark to convey information about them. DuoProSS Meditech
Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir.
2012). A mark need not immediately convey an idea of each and every specific feature
of the goods or services in order to be considered merely descriptive; it is enough if it
describes one significant attribute, function or property of the goods or services. See
In re Gyulay, 3 USPQ2d at 1010; In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB
1982); In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973).
When two or more merely descriptive terms are combined, the determination of
whether the combined mark is also merely descriptive turns on whether the
combination of terms evokes a non-descriptive commercial impression. If each
Serial No. 87453921
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component retains its merely descriptive significance in relation to the goods or
services, the combination results in a composite mark that is itself merely descriptive.
In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004)
(citing In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985)).
On the other hand, a mark comprising a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
non-descriptive meaning, or if the composite has an incongruous meaning as applied
to the goods or services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382,
385 (CCPA 1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ
363, 364-65 (TTAB 1983) (SNO-RAKE for “a snow removal hand tool having a handle
with a snow-removing head at one end, the head being of solid uninterrupted
construction without prongs”).
In this regard, “incongruity is one of the accepted guideposts in the evolved set of
legal principles for discriminating the suggestive from the descriptive mark.” Shutts,
217 USPQ at 365; see also In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB
1978) (the association of applicant’s mark TENNIS IN THE ROUND with the phrase
“theater-in-the-round” creates an incongruity because applicant’s services do not
involve a tennis court in the middle of an auditorium). Thus, we must consider the
issue of descriptiveness by looking at the mark in its entirety.
“Any competent source suffices to show the relevant purchasing public’s
understanding of a contested term, including purchaser testimony, consumer
surveys, dictionary definitions, trade journals, newspapers and other publications.”
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In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed.
Cir. 2001); In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4
USPQ2d 1141, 1143 (Fed. Cir. 1987).
“The [E]xamining [A]ttorney has the burden to establish that a mark is merely
descriptive.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007). “[A]ny doubt with respect to the issue of descriptiveness should be
resolved in applicant’s behalf. In re Grand Metro. Foodservice Inc., 30 USPQ2d 1974,
1976 (TTAB 1994).
II. Evidentiary Record
In support of her Section 2(e)(1) mere descriptiveness refusal, the Examining
Attorney submitted the following:
1. Merriam-Webster online definition of DNA:
Any of various nucleic acids that are usually the molecular basis of
heredity, are constructed of a double helix held together by hydrogen
bonds between purine and pyrimidine bases (see 1base 7b) which
project inward from two chains containing alternate links of
deoxyribose and phosphate, and that in eukaryotes are localized
chiefly in cell nuclei . . . .5

2. Merriam-Webster online definition of PHARMA:
A pharmaceutical company; also large pharmaceutical companies as a
group.6
3. An online ad for Applicant’s DNA PHARMA: HELIOS X pharmaceutical
grade fat burner product.7

5 August 18, 2017 Office Action, TSDR 7-16.
6 Id. at TSDR pp. 17-26.
7 Id. at TSDR p. 27.
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4. An online discussion at the WebMD website regarding RNA and DNA as part
of vitamin or supplement compounds:
RNA (ribonucleic acid) and DNA (deoxyribonucleic acid) are chemical
compounds that can be made by the body. They can also be made in a
laboratory. RNA and DNA are used as medicine. … People take
RNA/DNA combinations to improve memory and mental sharpness,
treat or prevent Alzheimer’s disease, treat depression, increase
energy, tighten skin, increase sex drive, and counteract the effects of
aging.8

5. An online discussion at the MedicineNet.com website regarding RNA and
DNA:
RNA (ribonucleic acid) and DNA (deoxyribonucleic acid) are chemical
compounds that can be made by the body. They can also be made in a
laboratory. RNA and DNA are used as medicine. … People take
RNA/DNA combinations to improve memory and mental sharpness,
treat or prevent Alzheimer’s disease, treat depression, increase
energy, tighten skin, increase sex drive, and counteract the effects of
aging.9
6. An online article from Genotopia.Scienceblog.com, dated April 1, 2014,
entitled DNA Supplements May Be Secret of Longer, Healthier Life:
A diet rich in DNA – and its molecular cousin, RNA – is correlated with
improved performance across a wide range of activities, both physical
and mental, and could help stave off the effects of aging.10

7. An online posting from Livestrong.com, entitled Supplements for DNA
Repair:
The cellular machinery used to synthesize DNA is subject to occasional
error, from the totally unnoticeable to uncontrollable cell replication.
Because some of the errors can lead to tissue dysfunction and disease,
it is important to keep DNA protected and in good working order.
Certain vitamins are important for the proper synthesis of DNA.11

8 Id. at TSDR pp. 28-30.
9 Id. at TSDR pp. 31-34.
10 Id. at TSDR pp. 35-49.
11 March 9, 2018 Office Action, TSDR pp. 6-12.
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8. An online ad at Vitacost.com for Solgar® RNA/DNA tablets, “as a dietary
supplement for adults”.12
9. An online advertising page from NutritionExpress.com for various RNA/DNA
supplements:
RNA/DNA: RNA and DNA support memory and mental alertness.
RNA and DNA (ribonucleic acid and deoxyribonucleic acid) are the
fundamental molecules of all living cells. They constitute the immune
system, brain, nervous system, circulatory system, sexual
reproductive system and more. RNA/DNA supplements support
improved memory and increased mental sharpness.13
10. An online advertising page from PipingRock.com for RNA & DNA
supplements:
RNA (ribonucleic acid) and DNA (deoxyribonucleic acid), are crucial
components to the building blocks of all life. These two substances:
are the start of genetic material in all cells, support general health and
wellness, promote natural, healthy cell support.14
11. An online advertising page from LifeExtension.com for DNA Protection
Formula: “Support your body’s natural defenses against environmental
toxins with LifeExtension’s updated DNA Protection Formula …”15
To traverse the Examining Attorney’s Section 2(e)(1) refusal, Applicant submitted
its own definition of DNA from Dictionary.com, which defines the term as follows:
1. Genetics. deoxyribonucleic acid: an extremely long macromolecule that
is the main component of chromosomes and is the material that transfers
genetic characteristics in all life forms, constructed of two nucleotide
strands coiled around each other in a ladderlike arrangement with the
sidepieces composed of alternating phosphate and deoxyribose units and
the rungs composed guanine, cytosine, and thymine: the genetic
information of DNA is encoded in the sequence of the bases and is
transcribed as the strands unwind and replicate. Compare base pair, gene,
genetic code, RNA.

12 Id. at TSDR pp. 13-14.
13 Id. at TSDR pp. 15-22.
14 Id. at TSDR pp. 23-24.
15 Id. at TSDR pp. 25-27.
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2. The set of nongenetic traits, qualities, or features that characterize a
person or thing: Humility is just not in her DNA.16

Applicant submitted no other evidence to traverse the Examining Attorney’s
refusal to register the mark.17
III. Discussion
The Examining Attorney has made of record the definition of DNA
(deoxyribonucleic acid), an essential building block of cellular generation. She also
submitted numerous examples of third-party discussions and advertising promoting
vitamin or supplement compounds containing DNA as an ingredient: to improve
memory and mental sharpness, treat or prevent Alzheimer’s disease, treat
depression, increase energy, tighten skin, increase sex drive, counteract the effects of
aging, improve performance across a wide range of physical and mental activities,
promote general health and wellness, and to aid the body’s natural defenses against
environmental toxins. Additionally, the Examining Attorney’s evidence shows the
promotion of vitamin and supplement compounds for the proper synthesis of DNA to
keep it protected and in good working order.
The Examining Attorney also made of record the definition of PHARMA as
pertaining to a pharmaceutical company or large pharmaceutical companies as a
group. She further submitted an example of an online advertisement for Applicant’s
DNA PHARMA: HELIOS X “pharmaceutical grade fat burner” product.

16 June 11, 2018 Request for Reconsideration, TSDR 33.
17 We note that Applicant, in its request for reconsideration, re-submitted certain evidence
already provided by the Examining Attorney and attempted to discredit the probative value
of this evidence as supporting the ground for refusal.
Serial No. 87453921
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Applicant submitted its own dictionary definitions of DNA, the first of which is
the equivalent of the definition submitted by the Examining Attorney. The second
definition of DNA Applicant submitted refers to a set of non-genetic traits, qualities,
or features that characterize a person or thing. Applicant submitted neither evidence
nor argument to contest or augment upon the definition of PHARMA submitted by
the Examining Attorney, nor does Applicant place context around the advertising for
its DNA PHARMA: HELIOS X product.
Thus, when viewed in connection with Applicant’s goods, i.e., dietary and
nutritional supplements, the combined terms DNA and PHARMA in Applicant’s
mark do not evoke a non-descriptive commercial impression nor does the combination
of each term create an incongruity or change their individual significance. Rather,
each component of Applicant’s mark retains its merely descriptive significance in
relation to the Applicant’s goods – a dietary supplement containing DNA that comes
from a pharmaceutical company or is of pharmaceutical grade. See Oppedahl &
Larson, 71 USPQ2d at 1372. The combination therefore results in a composite that is
itself merely descriptive.
Applicant argues that DNA PHARMA has dual meanings and as a result
comprises an incongruous expression. Applicant contends that “[c]onsumers could
just as easily interpret the mark DNA PHARMA to suggest that a person’s physical
features could be improved through the use of [Applicant’s] advanced product.”
Alternatively, Applicant questions whether (to the consumer viewing the mark)
Applicant’s “supplements contain DNA or can they improve the tone of [one’s] muscles
Serial No. 87453921
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or strengthen [someone] or give [the person] more stamina in [an] exercise regime.”18
These are not incongruous meanings with one being merely descriptive and one not.
Rather, the meanings of DNA PHARMA offered by Applicant are both merely
descriptive, because they forthwith convey an immediate idea of an ingredient,
quality, characteristic, feature, function, purpose or use of Applicant’s goods.
Chamber of Commerce, 102 USPQ2d at 1219.
IV. Decision
The refusal to register Applicant’s mark DNA PHARMA under Trademark Act
Section 2(e)(1) on the ground that the designation, as a whole, is merely descriptive
of the identified goods is affirmed.

18 4 TTABVUE 5.