Lifestyle Productions, Inc.

Trademark Trial and Appeal Board

Jul 18, 2013

No. 85359755 (T.T.A.B. Jul. 18, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
July 18, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Lifestyle Productions, Inc.
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Serial No. 85359755
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Sanford Astor of Brooks Kushman PC for Lifestyle Productions, Inc.

Hélène Liwinski, Trademark Examining Attorney, Law Office 104 (Chris Doninger,
Managing Attorney).
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Before Holtzman, Taylor and Greenbaum, Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Lifestyle Productions, Inc. has appealed from the final refusal to register on
the Principal Register the standard character mark G-H-3 PLUS (G-H-3 disclaimed)
for goods identified as:
Cosmetics, namely, daytime skin creams, night creams,
eye creams, anti-wrinkle cream, exfoliating skin creams,
massage creams, hand creams, eye gel, skin cleansing
preparations, skin moisturizers, beauty masks, skin
toning lotions, skin soaps, hair shampoos, hair
conditioners, makeup, lipsticks, perfumes, colognes, in
International Class 3,
and
Serial No. 85359755
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Pharmaceutical preparations for the treatment of
insomnia, fatigue, rejuvenation of cells, arthritis,
rheumatism, impotence, vitamin and mineral
supplements in International Class 5.1
The examining attorney ultimately refused registration under Section 2(a) of
the Trademark Act, 15 U.S.C. § 1052(a), on the ground that applicant’s mark
comprises deceptive matter. In its brief, applicant withdrew the International Class
5 goods identified in the application. This appeal therefore proceeds only as to the
goods identified in International Class 3.
As background for this refusal, applicant previously owned a registration for
the same mark and identical goods, but the registration was cancelled for failure to
file a Section 8 affidavit.2 The examining attorney initially approved the
application for publication after issuing an Examiner’s Amendment, which deleted
an unnecessary claim of acquired distinctiveness pursuant to Section 2(f), 15 U.S.C.
§ 1052(f), entered a disclaimer of “G-H-3”, and amended the identification of goods
in International Class 5 to correct a typographical error. However, the application
was withdrawn from publication based on evidence of FDA Import Alert 61-01,
published March 18, 2011, preventing importation of products containing “Gerovital
(KH3 – GH3, Etc.)” because “Gerovital (KH3) which generally consists of some form
of Procaine HCL is regarded as a new drug….“ The Alert states: “These products
are frequently accompanied by promotional literature or labeled as a cure all for

1 Serial No. 85359755 filed on June 29, 2011, asserting January 17, 2000 as the date of first
use and first of the mark in commerce. In its brief, applicant abandoned the International
Class 5 goods originally included in the application.
2 The registration included the International Class 5 goods that have been deleted from the
instant application.
Serial No. 85359755
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such ailments as old age, premature graying of hair, wrinkling of skin, mental
disorders, insomnia, decreased sexual vigor, rheumatism, arthritis, heart problems,
depression, etc.”.
Upon review of this new evidence, the examining attorney issued a refusal
based on Sections 1 and 45 of the Trademark Act, 15 U.S.C. § 1051 and 1127,
because it appeared that the mark was not in lawful use in commerce. The
examining attorney also required applicant to specify whether the goods contained
GH3, i.e., Gerovital, as an ingredient or component, and if so, to provide proof of, or
a declaration attesting to, applicant’s legal right to sell goods containing GH3.
In response, applicant submitted a declaration, signed by its owner,
confirming that the “proper name” for “GH3, i.e., Gerovital H3” is “procaine
hydrochloride and it has been approved by the FDA and is available to be purchased
from several drug companies”, and that “the products that Applicant sells do not
contain any procaine hydrochloride.” September 19, 2011 Response to Office Action.
Based on this response, the examining attorney issued a new refusal on the ground
that the term G-H-3, appearing in applicant’s mark, is deceptive matter within the
meaning of Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a).3 As noted above,
applicant filed an appeal when this refusal was made final.
Pursuant to Section 2(a) of the Trademark Act, registration must be refused
if a mark is deceptive of a feature or an ingredient of the goods. A mark is deceptive

3 Although the examining attorney did not formally withdraw the initial refusal under
Sections 1 and 45 of the Trademark Act, the refusal was not maintained in a second or final
action; nor was it raised or briefed on appeal. We therefore deem this refusal to have been
waived.
Serial No. 85359755
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if (1) it contains matter that misdescribes the goods; (2) prospective purchasers
would be likely to believe the misrepresentation; and (3) the misrepresentation
would be likely to affect a significant portion of the relevant consumers’ decisions to
purchase the goods. In re Budge Mfg. Co., 857 F.2d 773, 775, 8 USPQ2d 1259, 1260
(Fed. Cir. 1988), aff’g 8 USPQ2d 1790 (TTAB 1987); In re Spirits Int’l, N.V., 563
F.3d 1347, 90 USPQ2d 1489 (Fed. Cir. 2009). See also In re White Jasmine LLC,
106 USPQ2d 1385 (TTAB 2013); In re E5 LLC, 103 USPQ2d 1578 (TTAB 2012).
It is the examining attorney’s position that (1) consumers would understand
the term G-H-3 in the context of the identified cosmetics products to refer to the
substance GH3, known inter alia as Gerovital, Gerovital H3 (with and without
hyphens), procaine and procaine hydrochloride (procaine HCl), and the goods do not
contain this substance; (2) because GH3 is included as an ingredient in dietary
supplements and cosmetics, prospective purchasers likely would believe the
misdescription; and (3) because GH3 has been widely touted as having numerous
health and anti-aging benefits, the misrepresentation would be likely to materially
affect prospective purchasers’ decisions to purchase the goods.
It is applicant’s position, however, that the mark G-H-3 PLUS is not
deceptive because the public is aware that products containing the term GH3
absent the word Gerovital in the product name are “purely cosmetics, vitamins
and/or supplements” and do not contain procaine, a substance that physicians
legally use to treat patients. In other words, applicant argues that its mark cannot
Serial No. 85359755
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be deceptive even though it includes the term G-H-3, because it does not also
include the term Gerovital.
There is no question that the term G-H-3, which applicant has disclaimed,
misdescribes the goods for which applicant seeks registration. While Gerovital H3
generally is referred to as “GH3”, without hyphens, the record shows that
consumers are familiar with variations of the term, and that GH3, Gerovital and
Gerovital H3 (with and without hyphens) often are used interchangeably, whether
or not procaine is identified as a main ingredient. For example:
•FDA Import Alert 61-01, mentioned above, seeks to bar
admission into the United States of “[a]ll products offered
for entry as Gerovital, GH3, KH3, Zell H3, GH3, GH3
Cream, etc.” because “Gerovital (KH3) which generally
consists of some form of Procaine HCl is regarded as a
new drug…”;
•Tierra Mega Nutrients International identifies
“Gerovital H-3, the anti-aging vitAminic serum” as the
“primary ingredient of GH3 Wrinkle Crème”, and the
label prominently displays the term “GH-3”
;
•Achilles Natural Health Mart Company sells “Gerovital
H3 (GH3) Procaine LCL Injectable” in tablet form and
warns consumers to “beware of the confusion created by
companies selling those sugar coated GH3 pills”
;
•The product information sheet for “Gerovital-H3
Injectables” in ampoule form and “GH3-Pro – generic
Gerovital H3” in tablet form, sold by Biogenesis, states:
“Also known as GH3 or KH3: Gerovital-H3’s principal
ingredient is procaine”, and includes testimonials from
“James South MA Oregon” and “S.T., Florida”
;
•On the “Gerovital U.S.A. site”, Millennium Health sells
“GH3 Gerovital H3 Procaine Hcl Advanced Formula” and
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asks “Can we really grow younger with Gerovital H3?”
; and
•The Rainbow’s End advertises “GH3-Maximum” tablets
by Healthy Habits as “a natural version of the time-tested
world-renowned Gerovital H3 (GH3)”
.
General descriptions of the substance also refer to variations of GH3,
Gerovital H3 and procaine interchangeably:
•“The brand names may vary, yet Procaine, Gerovital and
GH3 all refer to the same drug, just marketed differently,
but all relying and basing their effectiveness on research
and development done by professor Ana Aslan to combat
aging” ;
•“GH3 is simply the local anesthetic procaine
hydrochloride… to which has been added buffering agents
and other chemicals to create a hybrid drug (Gerovital
H3)” ; and
•The entry for “Gerovital” from 4 refers
to “Gerovital H3 (or procaine hydrochloride and products
known as GH3 and other variants which may or may not
be identical to Gerovital H3)” as a “controversial
preparation developed during the 1950s and promoted by
its advocates as an effective anti-aging treatment….” The
“procaine product called Gerovital H3 (often called G.H.3
for short)” is banned by the FDA, and the “main active
ingredient” is identified as “the well known [sic] local
anesthetic procaine hydrochloride (often referred to by the
old brand name, Novocaine).”
With regard to the FDA ban, the entry states “[t]his order
was rescinded for GEROVITAL Cosmetics Lines, not
containing procaine.”
The above-referenced declaration from applicant’s owner confirms that the
cosmetics products identified in the application do not contain the substance GH3.

4 Articles from the online Wikipedia encyclopedia may be used to support a refusal or
requirement, provided that, as here, an applicant has an opportunity to rebut such
evidence. See In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1032 (TTAB 2007).
Serial No. 85359755
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Moreover, we find that G-H-3 and GH3 do not differ in any meaningful way, and
that the term PLUS does not indicate that the goods do not contain GH3. Applicant
does not argue otherwise. Accordingly, the first prong of the test has been satisfied.
We turn next to the question of whether prospective purchasers are likely to
believe that the misdescription actually describes the goods. In making this
determination, we acknowledge that most of the products in the record that use the
term GH3 in the product name also use the word Gerovital in the product name,
and display the words Gerovital and/or procaine either on the label or in the
accompanying product description.5 However, in all instances, the term GH3 is
displayed quite prominently; in some cases, the word Gerovital also is displayed
prominently, and sometimes the words Gerovital and/or procaine appear at the
bottom of the label in much smaller font, or buried in the product description,
making those words far less noticeable than the prominent term GH3. Further, and
directly contrary to applicant’s argument, Tierra Mega Nutrients International sells
“Original Formula GH3 Gerovital” and “GH3 Wrinkle Crème” with “Gerovital H-3”
identified as “the primary ingredient” but no reference to procaine on the labels or
product descriptions , and the Millennium Health product ordering

5 With its January 6, 2012 Response to Office action, applicant submitted a printout from
the website advertising a “G.H.3.” supplement, and a printout, discussed
above, from the website advertising a “GH3 Maximum” supplement.
Neither supplement includes the word Gerovital in the product name, and neither lists
procaine as an ingredient.
Serial No. 85359755
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page lists “GH3 Formula Anti-wrinkle/moisturizing Cream (50g) with Procaine
HCl” but no reference to Gerovital .6
Given the interchangeable nomenclature of GH3, Gerovital H3 and procaine
(and variations thereof), discussed above, and given that the substance commonly is
found in health and wellness products, we find unpersuasive applicant’s argument
that consumers will believe that its cosmetics products, sold under the G-H-3 PLUS
mark, are purely cosmetic and contain no procaine because the mark does not also
contain the word Gerovital. See E5, 103 USPQ2d at 1580 (because copper is a
common ingredient in dietary supplements, consumers are likely to understand
“CU” in applicant’s mark, in the context of dietary supplements, to refer to the
chemical element copper, even though virtually all of the evidence showed “CU”
next to the word “copper” and applicant’s mark did not include the word “copper”).
Thus, the second prong of the test has been satisfied.
We now consider whether the misdescription is likely to affect a significant
portion of the relevant consumers’ decisions to purchase the goods. The FDA
Import Alert states that products containing GH3 are marketed as “… a cure all for
such ailments as old age, premature graying of hair, wrinkling of skin, mental
disorders,” and the record confirms such marketing tactics. For example:
•gerovital.com advertises itself as “The original and
premier source for the world’s fastest anti-ageing [sic]
formula”, guaranteeing “significant improvements in your

6 The product description on the first page of this website prominently displays the word
Gerovital. However, the words “GH3 Formula” appear in banner form on the label of the
product, which is displayed next to the description, and the reference to “Procaine HCl
complex” appears at the bottom of the label, in much smaller font. The word Gerovital is
not on the product label.
Serial No. 85359755
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health, looks and youthfulness” and encourages
consumers to “Order Gerovital GH3 Gold® and you’ll
discover ageing [sic] is not inevitable, nor irreversible!”
;
•Tierra Mega Nutrients International refers to GH3 as
“the world-famous anti-aging formula discovered by
Romanian gerontologist Dr. Ana Aslan, and given to tens
of thousands in the form of shots and pills since the mid-
1960’s at her Spa in Bucharest” and claims that GH3
recently “has been found to have a definite cortisol-
inhibiting effect, which may help to explain its apparent
rejuvenative effects experiences by so many over the past
50 years.”
This company also identifies “the original Romanian
formula, Gerovital H-3, the anti-aging vitAminic serum”
as the “primary ingredient of GH3 Wrinkle Crème”,
claiming the product is “designed to erase fine lines,
shrink pores, fade dark circles and stimulate circulation,
but at a more concentrated level. In addition, the wrinkle
cream in effect is tightening the skin, therefore
diminishing the signs of aging” ;
•Achilles Natural Health Mart Company touts GH3 as
“the MOST-TRUSTED Anti-Aging THERAPY of choice of
the RICH & FAMOUS in over 70 countries … Add years
to your life and life to your years” ;
•In answer to the query “Gerovital: is antiaging [sic]
Possible With GH3?” Millennium Health claims “The
promise of prolonged youth and the testimonials of
thousands of patients have carried the word of a
seemingly miraculous treatment far beyond the borders of
… Rumania.” … “Pilgrimages for antiaging [sic] therapy
by notables including French President Charles De
Gaulle, U.S. President John F. Kennedy … Actresses …
and actors … traveled to the Otopeni Clinic … where Dr.
Aslan does her research with GH3” ; and
•Millennium Health advertises “GH3 Gerovital
wrinkle/moisturizing Crème with finely balanced Procaine
Hcl” as a product that “Visibly slows the aging process.
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Stimulates your skin to rejuvenate itself, self repair [sic]
and renewal to protect skin from free-radical damage.”
A testimonial by Dr. Paul Yutsis, M.D. USA refers to the
product and the GH3 Gerovital H3 Procaine Hcl
Advanced Formula supplement, advertised on the same
web page, as follows:
“GH3 is a major step forward in the field of anti aging
[sic]. The metabolites of procaine have enormous impact
on restoring key areas in the body. GH3 has deservedly
earned a strong reputation among the older population –
it enhances joint mobility and arterial health, improves
mental acuity while chasing the blues away, and also
rejuvenates the skin. It’s what you can call an all-body
formula for postponing the signs of aging.”
.
The evidence shows that the substance known as GH3, Gerovital H3, and/or
procaine HCl, is widely advertised as having numerous anti-aging health benefits,
and that its presence or absence as an ingredient would be relevant to the decision
of consumers to purchase applicant’s cosmetics products. See E5, 103 USPQ2d at
1584. Thus, the third prong of the test has been satisfied.
Applicant’s cancelled registration for the same mark and identical goods,
which apparently was granted despite the existence of an FDA ban since the early
1980s, and an expired third-party registration7 for the mark GH3X for “food
supplements, medicated skin care preparations, dandruff shampoo and analgesic
balms”, cannot justify registration of the current application. A cancelled
registration is not entitled to any of the statutory presumptions of Section 7(b) of
the Trademark Act. See In re Ginc UK Ltd., 90 USPQ2d 1472 (TTAB 2007); In re
Hunter Publishing Company, 204 USPQ 957, 963 (TTAB 1979) (cancellation

7 Registration No. 2056899.
Serial No. 85359755
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“destroys the Section [7(b)] presumptions and makes the question of registrability ‘a
new ball game’ which must be predicated on current thought.”). Further, the
determination of another examining attorney regarding a previously registered
mark is not dispositive of the case before us. See In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564 (Fed. Cir. 2001); In re Shapely, Inc., 231 USPQ 72, 75
(TTAB 1986).
Applicant also submitted a declaration from its owner stating that in the
many years that applicant has sold the identified goods under the G-H-3 PLUS
mark, applicant has received no consumer inquiries as to whether products contain
procaine, and therefore “the customers know they are buying vitamin and mineral
supplement products”.8 However, due to consumers’ exposure to the
interchangeable terms GH3, Gerovital H3 and procaine, in variation, and the wide-
ranging health claims attributed to the substance, we can easily draw the opposite
conclusion, i.e., that consumers simply assume that applicant’s cosmetics products
contain procaine. The declaration therefore has little probative value.
Finally, with its brief, applicant submitted a Supplemental Declaration
supporting a claim of acquired distinctiveness pursuant to Section 2(f) of the
Trademark Act based on more than five-year’s use of the mark in commerce. As
mentioned above, the examining attorney deleted applicant’s original 2(f) claim as
unnecessary before approving the application for publication in the first instance.
Although the examining attorney did not object to the Supplemental Declaration,
she did not address it in her brief. We therefore do not treat the Supplemental

8 Attached to January 6, 2012 Response to Office action.
Serial No. 85359755
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Declaration as properly of record, and have given it no further consideration.
Trademark Rule 2.142(d).9 In any event, consideration of that evidence would not
have altered our determination. Section 2(a) is an absolute bar to registration on
either the Principal or Supplemental Register, and cannot be overcome by a claim of
acquired distinctiveness. See TMEP § 1203.02(c) (explaining difference between
refusals under Section 2(a) and Section 2(e)(1)).
In sum, after reviewing the evidence of record, we find that all three prongs
of the deceptiveness test have been satisfied: (1) consumers would understand the
term G-H-3 in the context of applicant’s identified cosmetics products to refer to
GH3, Gerovital H3 and/or procaine HCl (and variations thereof), and the goods do
not contain this substance; (2) due to the inclusion of GH3 as an ingredient in
dietary supplements and cosmetics products, consumers likely will believe that the
applicant’s cosmetics products, sold under the G-H-3 PLUS mark, actually contain
GH3; and (3) due to the widely touted purported health benefits of GH3, the
misrepresentation will materially affect the decisions of consumers whether to
purchase the goods. See E5, 103 USPQ2d at 1584. We therefore conclude that the
mark G-H-3 PLUS is deceptive for “cosmetics, namely, daytime skin creams, night
creams, eye creams, anti-wrinkle cream, exfoliating skin creams, massage creams,
hand creams, eye gel, skin cleansing preparations, skin moisturizers, beauty masks,
skin toning lotions, skin soaps, hair shampoos, hair conditioners, makeup, lipsticks,
perfumes, colognes.”

9 If applicant wished to have new evidence examined after appeal, applicant should have
requested remand. We note that remand is granted in only limited circumstances. See
TBMP §1207.02 (2013).
Serial No. 85359755
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Decision: The refusal to register under Section 2(a) of the Trademark Act is
affirmed.