Master Supplements, Inc.

Trademark Trial and Appeal Board

Nov 16, 2016

No. 86749576 (T.T.A.B. Nov. 16, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Master Supplements, Inc.
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Serial Nos. 86749576 and 867495841
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Eric P. Mirabel, Esq.,
for Master Supplements, Inc.

Tracy Whittaker-Brown, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
_____

Before Zervas, Ritchie and Kuczma,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Master Supplements, Inc. (“Applicant”) seeks registration on the Principal
Register of the following proposed standard character marks, BIOACTIVE CFU for
“Probiotic nutraceuticals for use as a dietary supplement which contain both
lactobacillus and bifidobacteria strains” and BIOACTIVE PROBIOTIC for “Probiotic

1 These appeals involve common questions of law and fact and the records are substantially
similar. Accordingly, we consolidate and decide both appeals in this single decision. See In re
Binion, 93 USPQ2d 1531, 1533 (TTAB 2009); TBMP § 1214 (2014).
Citations are to the record in application Serial No. 86749576 unless otherwise noted.
Serial No. Nos. 86749576 and 86749584
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Nutraceuticals for use as a dietary supplement containing both lactobacillus and
bifidobacteria,” both in International Class 5.2
The Examining Attorney determined that BIOACTIVE CFU and BIOACTIVE
PROBIOTIC are merely descriptive of Applicant's identified goods, and refused
registration pursuant to Section 2(e)(1) of the Trademark Act on the ground that the
proposed marks are merely descriptive.
After the refusals were made final, Applicant appealed. Briefs have been filed by
both Applicant and the Examining Attorney. We affirm the refusals to register.
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), prohibits the
registration of a mark which, when used on or in connection with the goods of the
applicant, is merely descriptive of them. A term is merely descriptive if it immediately
conveys knowledge of a significant quality, characteristic, function, feature or
purpose of the goods or services it identifies. See, e.g., In re Chamber of Commerce of
the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). Determining the descriptiveness
of a mark is done in relation to an applicant's identified goods and/or services, the
context in which the mark is being used, and the possible significance the mark would
have to the average purchaser because of the manner of its use or intended use; that
a term may have other meanings in different contexts is not controlling. See In re

2 Application Serial Nos. 86749576 and 86749584 were both filed on September 8, 2015,
based upon an allegation of a bona fide intention to use the mark in commerce under Section
1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
Serial No. Nos. 86749576 and 86749584
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Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (citing In re Bayer
Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)).
Further, descriptiveness of a mark is not considered in the abstract. In re Bayer
Aktiengesellschaft, 82 USPQ2d at 1831. The question is whether someone who knows
what the goods or services are will understand the mark to convey information about
them. DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695 F.3d 1247, 103
USPQ2d 1753, 1757 (Fed. Cir. 2012).
The record includes the following evidence:
Definitions of “BIOACTIVE”:

- “of or relating to a substance that has an effect on living tissue.”3

- “having an effect upon a living organism, issue, or cell. Biologically active.”4

- “of or relating to a substance that has an effect on living tissue.”5

Uses of “BIOACTIVE”:

- Book entitled “Bioactive Goods in Promoting Health Probiotics and
Prebiotics.”6

- Book entitled “Bioactive Foods in Promoting Health.”7

- Article entitled “Probiotics and Prebiotics as a Bioactive Component of
Functional Food.”8

3 The Free Dictionary, December 22, 2015 Office Action.
4 www.medicinenet.com, December 22, 2015 Office Action.
5 The American Heritage Dictionary of the English Language (5th ed. 2015), December 22,
2015 Office Action.
6 www.sciencedirect.com, December 22, 2015, Office Action.
7 www.sciencedirect.com, December 22, 2015 Office Action.
8 www.nih.gov, December 22, 2015, Office Action.
Serial No. Nos. 86749576 and 86749584
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- Article entitled “Calories in Bioactive Nutrients Probiotic” referencing
bioactive whey protein powder.9

Definitions of “PROBIOTIC”:

- “denotes use of microorganisms to benefit health.” 10

- “A dietary supplement containing live bacteria or yeast that supplements
normal gastrointestinal flora, given especially after depletion of flora caused
by infection or ingestion of an antibiotic drug.”11

- “A microbe that protects its host and prevents disease. The best-known
probiotic is Lactobacillus acidophilus, which is found in yogurt, acidophilus
milk, and supplements. Probiotics counter the decimation of helpful intestinal
bacteria by antibiotics. Probiotics given in combination with antibiotics are
therefore useful in preventing antibiotic-associated diarrhea. The yeast S.
boulardii and three strains of Lactobacillus have also been shown to be useful
in this regard.”12

Uses of PROBIOTIC”:
Probiotics and prebiotics as a bioactive component of functional food.13

About Master Supplements, Inc.
In 2003, Randolph S. Porubcan set out to create a probiotic that was more
powerful and effective than anything else on the market.14

Uses of “CFU”:

- Instructions for counting Colony Forming Units (CFUs): “CFU PLATE
COUNT PROCEDURE Count the colonies on each plate. Average the counts
within a dilution. This gives the CFU/gram.”15

9 www.myfitnesspal.com, December 22, Office Action.
10 www.medical-dictonary.thefreedictionary.com, December 20, 2015 Office Action,
application Serial No. 86749584.
11 Id.
12 Rx.ist.com, December 20, 2015 Office Action, application Serial No. 86749584.
13 www.ncbi.nlm.nih.gov, December 20, 2015 Office Action, application Serial No. 86749584.
14 https://www.master-supplements.com/, December 20, 2015 Office Action, application Serial
No. 86749584.
15 www.master-supplements.com, December 22, 2015 Office Action.
Serial No. Nos. 86749576 and 86749584
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- Advertisement for applicant’s dietary supplements:16

- An electronic display for purchase of the goods stating, “This powerful
blend contains 7 antimicrobial strains of probiotics, 6 billion CFU's per
capsule.”17

- “Got A Question About Probiotics? Ask Dr. Greg”;

WHAT’S A CFU/G?
Dr. Greg: It’s an industry-wide term. It’s the way we measure
probiotic potency. The CFU stands for colony-forming units…

10 BILLION CFU? 25 BILLION CFU? MORE IS BETTER
RIGHT?
Dr. Greg: I’ve seen crazy-high CFUs out there. It doesn’t
necessarily mean they are better, the point is quality – not
quantity!”18

BIOACTIVE CFU
“Nutraceutical” is defined as “a specially treated food, vitamin, mineral, herb, etc.,
that you eat or drink in order to improve your health.”19 A definition of “bioactive” is

16 www.supersup.com, December 22, 2015 Office Action.
17 www.bioactivenutrients.com, December 22, 2015 Office Action.
18 www.up4probiotics.com, January 23, 2016 Final Office Action.
19 From merriam-webster.com. The Board may take judicial notice of dictionary definitions,
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist
in printed format or have regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375,
1377 (TTAB 2006). We take judicial notice of the definition of “nutraceutical.”
Serial No. Nos. 86749576 and 86749584
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“having an effect upon a living organism, issue, or cell. Biologically active.”20 The term
“BIOACTIVE” hence informs purchasers, who are members of the general public,
that Applicant’s goods include biologically active components. Applicant allows that
“the term ‘bioactive,” may be descriptive.”21
The second term in the proposed mark, “CFU,” is defined as “Colony Forming
Units,” and is a measure of probiotic potency, according the statement by Dr. Greg
mentioned above. CFU indicates that there is a level of probiotic potency and
therefore bioactivity. Applicant’s contention that “the term ‘CFU’ is an acronym
capable of different meanings, and it does not immediately convey ‘colony forming
units’ (and the Examiner has not shown otherwise), and it is therefore not
descriptive”22 is not persuasive. “That a term may have other meanings in different
contexts is not controlling.” In re Franklin Cnty. Historical Soc’y , 104 USPQ2d 1085,
1087 (TTAB 2012) (citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979)).
The proposed mark therefore is a combination of two merely descriptive terms.
When two descriptive terms are combined, the determination of whether the
composite mark also has a descriptive significance turns upon the question of whether
the combination of terms evokes a new and unique commercial impression. See
Duopross Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d 1247, 103 USPQ2d
1753 (Fed. Cir. 2012) (SNAP SIMPLY SAFER merely descriptive for “medical devices,

20 www.medicinenet.com, December 22, 2015, Office Action.
21 Applicant’s brief at 1, 4 TTABVUE 2.
22 Id.
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namely, cannulae; medical, hypodermic, aspiration and injection needles; medical,
hypodermic, aspiration and injection syringes”); In re Positec Group Ltd., 108
USPQ2d 1161, 1163 (TTAB 2013) (SUPERJAWS merely descriptive for a variety of
machine and hand tools, including jaws).23 A combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
unique, nondescriptive meaning. See In re Shutts, 217 USPQ 363 (TTAB 1983) (SNO-
RAKE held not merely descriptive of a snow removal hand tool). Because the
combination of the two terms in Applicant’s proposed mark does not evoke a new and
unique commercial impression or create a unitary mark, the proposed mark is merely
descriptive of features of the goods.
BIOACTIVE PROBIOTIC
As noted above, “bioactive” informs purchasers that Applicant’s nutraceuticals
include biologically active components. PROBIOTIC, defined as a microorganism that
benefits heath, is a term which is in Applicant’s identification of goods; the goods are
identified as probiotic nutraceuticals. Thus, each term identifies a feature or
characteristic of the goods, i.e., that the goods contain biologically active compounds
that are microorganisms that benefit heath. The combination of the two individual
terms does not evoke a new and unique commercial impression or create a unitary
mark. The proposed mark is therefore merely descriptive of features of the goods.

23 Applicant therefore is incorrect in its contention that the combination of the subject terms,
even if both descriptive, form a protectable mark simply because “words which could not
individually become a trademark may become one when taken together.” Applicant’s brief at
1, 4 TTABVUE 2.
Serial No. Nos. 86749576 and 86749584
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Decision: The refusals to register the proposed mark BIOACTIVE CFU and the
proposed mark BIOACTIVE PROBIOTIC are both affirmed.