No. 77758863 (T.T.A.B. Oct. 25, 2012)

Milo Shammas

Trademark Trial and Appeal BoardOct 25, 2012

No. 77758863 (T.T.A.B. Oct. 25, 2012)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: October 25, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Milo Shammas _____ Serial No. 77758863 _____ Sandra Lee Lipkin of Law Offices of Sandy Lipkin for Milo Shammas. Sara Benjamin, Trademark Examining Attorney, Law Office 110 (Chris A. F. Pedersen, Managing Attorney). _____ Before Zervas, Bergsman and Lykos, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Milo Shammas (“applicant”) filed a use based application to register on the Principal Register the mark PROBIOTIC, in standard character form, for the following goods in Class 1 (hereinafter “fertilizer“): Ammonium chloride fertilizer; Ammonium nitrate fertilizer; Ammonium sulphate fertilizer; Blood powder; Bone meal; Brewers' grain; Calcined potassium fertilizer; Calcium silicate fertilizer; Calcium superphosphate fertilizer; Chemical fertilizers; Chemically converted compound fertilizers; Compost; Double or triple superphosphate fertilizer; Fertilizers; Fertilizers and manures; Fertilizers for agricultural use; Fertilizers for domestic use; Fertilizing preparations; Leaf mold; Manganese fertilizer; Marine fertilizer; Mixed fertilizers; Serial No. 77758863 2 Natural fertilizers; Non-chemical bio-fertilizers; Omplex fertilizers; Peat; Potassium chloride fertilizer; Potassium sulphate fertilizer; Rice bran; Sodium nitrate fertilizer; Thomas phosphatic fertilizer; Urea fertilizer. During the prosecution of the application, applicant amended the application to seek registration under Section 2(f) claiming that the term PROBIOTIC has acquired distinctiveness. The Trademark Examining Attorney refused registration under Section 2(e)(1) of the Trademark Act of 1946, 15 U.S.C. § 1052(e)(1), on the ground that PROBIOTIC for fertilizer is generic. In the event that applicant’s mark is not generic, the Trademark Examining Attorney refused registration on the grounds that applicant’s mark is merely descriptive and because the term PROBIOTIC as used by applicant has not acquired distinctiveness. Preliminary Issues A. Evidence attached to applicant’s brief. Applicant attached eight (8) exhibits to its brief. The Trademark Examining Attorney lodged an objection to the evidence submitted with applicant’s brief on the ground that the evidence attached to applicant’s brief was not timely filed. Trademark Rule 2.142(d) reads as follows: The record in the application should be complete prior to the filing of an appeal. The Trademark Trial and Appeal Board will ordinarily not consider additional evidence filed with the Board by the appellant or by the examiner after the appeal is filed. After an appeal is filed, if the appellant or the examiner desires to introduce additional evidence, the appellant or the examiner may request the Board to suspend the appeal to remand the application for further examination. Serial No. 77758863 3 Because applicant did not request the Board to suspend the appeal to remand the application for further examination, the objection is sustained to the extent that the Board will not consider the evidence attached to applicant’s brief if it was not previously made of record. However, we will consider the dictionary definition attached as Exhibit H because we will take judicial notice of dictionary definitions. B. Applicant’s California Trademark Registration. Applicant submitted a copy of his California registration (Registration No. 107837) for the mark PROBIOTIC for “Fertilizers, soil amendments, biological inoculants.”1 This registration has little probative value for us. While applicant’s mark may have been registered under California law, it is the federal statute and the cases interpreting it by which we must evaluate the registrability of applicant’s mark. In re Vico Products Manufacturing Co., Inc., 229 USPQ 364, 370 (TTAB 1985); In re Craigmyle, 224 USPQ 791, 794 (TTAB 1984) (California trademark registration is not controlling on the question of federal registrability). Whether the term PROBIOTIC is generic? When a proposed mark is refused registration as generic, the examining attorney has the burden of proving genericness by "clear evidence" thereof. See In re Hotels.com, 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009); In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed. Cir. 1987); In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987). 1 Applicant’s August 30, 2010 response. Serial No. 77758863 4 The critical issue is to determine whether the record shows that members of the relevant public primarily use or understand the term sought to be registered to refer to the category or class of goods in question. H. Marvin Ginn Corp. v. International Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986); In re Women's Publishing Co. Inc., 23 USPQ2d 1876, 1877 (TTAB 1992). Making this determination “involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered ... understood by the relevant public primarily to refer to that genus of goods or services?” Ginn, 228 USPQ at 530. Evidence of the public’s understanding of a term may be obtained from any competent source, including testimony, surveys, dictionaries, trade journals, newspapers and other publications. See Merrill Lynch, 4 USPQ2d at 1143; In re Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985). We begin by finding that the genus of the goods at issue in this case is adequately defined by the description of goods – fertilizer. Applicant agrees as evidenced by his argument that “the relevant public does NOT understand the designation of the word ‘probiotic’ to refer to the class or genus of goods at issue, which are soils and fertilizers.”2 (Emphasis in the original). We now to turn to the second inquiry, the public’s understanding of the term PROBIOTIC when used in connection with fertilizer. As noted above, the evidentiary burden of establishing that a term is generic rests with the USPTO and the showing must be based on clear evidence. Merrill 2 Applicant’s Brief, p. 5. Serial N Lynch, 4 is clear PROBIO a type o 1 probioti any ingr 3 August 4 Applica o. 777588 USPQ2d evidence TIC in co f fertilizer . Appli c elements edient.”3 30, 30, 201 nt’s April 1 63 at 1143. to support njunction . We have cant’s cou are prese See a samp 0 1, 2011 res Based on t a finding with fertili considered nsel state nt in the f le of appli ponse. 5 he record that the zer, readil the follow d that “W ertilizer, t cant’s use described b relevant p y underst ing eviden hile it is he word p of the mar elow, we ublic, whe ands the t ce: in fact tr robiotic is k below.4 find that t n it consi erm to iden ue that s not specif here ders tify ome ic to Serial No. 77758863 6 2. The dictionary definition of “Probiotic” is a “substance containing beneficial microorganisms: a substance containing live microorganisms that claims to be beneficial to humans and animals, e.g. by restoring the balance of microflora in the digestive tract.”5 3. The Wikipedia entry for probiotic (April 5, 2011) provides the following information:6 Probiotics are live microorganisms thought to be beneficial to the host organism. … * * * The “probiotics” was first introduced in 1953 by Werner Kollath. … Contrasting antibiotics, probiotics were defined as microbially derived factors that stimulate the growth of other microorganisms. In 1989, Roy Fuller suggested a definition of probiotics which has been widely used: “A live microbial feed supplement which beneficially affects the host animal by improving its intestinal microbial balance.” (Emphasis in the original). 4. The Probiotic.org website webpage entitled “Soil Probiotic.”7 Soil probiotics are commonly known as soil-based organisms (SBO’s). SBOs are referred to a [sic] probiotics because they are beneficial bacteria that live in the soil. 5. An article posted on the SeaChar.org website (July 18, 2010) entitled “Solutions for Deforestation to Reduce Global Warming.”8 Probiotics for soil is a method of using friendly bacteria on the soil to bring back the symbiotic relationships that create “breathing” for the entire agroforest floor. The definition given by the FAQ/WHO, probiotics are: ‘[sic] 5 Ecarta.msn.com attached to the September 14, 2009 Office action. 6 April 11, 2011 response. See In re Thor Tech, Inc., 90 USPQ2d 1634, 1636 n.4, 6, 7 (TTAB 2009) (considering Wikipedia evidence attached to Office action and applicant’s response). 7 September 16, 2011 Office action 8 September 16, 2011 Office action. Serial No. 77758863 7 Live microorganisms which when administered in adequate amounts confer a health benefit on the host’ [sic]. * * * Reforestation reconditions the soil of formerly barren land. Agroforestry is the solution that offers infrastructure through agroforestry communities. It introduces biodiversity, something that the original forests used to thrive upon. It is where probiotics works with biochar to sequester carbon, hold good bacteria and create a colony of microorganisms that sustainably nurture the soil and the flora. 6. LactoPAFI.com website posting an article written by Philippine Vice- Governor Greg Sanchez (April 13, 2009) entitled “GregoGro Probiotic Fertilizer: Restoring the fertility of the soil.”9 Founder of the Lactobacillius Pafi Techo Resources Corporation, the first probiotic manufacturer in the Philippines, has not been shrinking to find [sic] solution that somehow could ease the burden of the Mother Earth. A deepen [sic] thorough study has been spawned in the LBPTRC’s modern laboratory to accurately produce probiotic fertilizer to replace the disastrous chemicals and inorganic fertilizers to the land and to rejuvenate microorganism [sic] by way of applying natural, organic fertilizers to recover the ailing agricultural land and bring back its normal bounty of fertility, harmless to the environment and produce a bountiful production to feed the increasing population in the country and the world. 9 September 14, 2009 Office action. This is a website for a company in the Philippines. Under appropriate circumstances, the Board will consider web pages posted abroad as evidence of how a term will be perceived. See In re Remacle, 66 USPQ2d 1222 (TTAB 2002) (Board found that professionals in certain fields, such as medicine, engineering, computers and telecommunications would be likely to monitor developments in their fields without regard to national boundaries, and that the internet facilitates such distribution of knowledge, so evidence from an English language web site in Great Britain held admissible). Cf. In re Cell Therapeutics, Inc., 67 USPQ2d 1795 (TTAB 2003). We find that farmers and other scientists interested in developments in fertilizers may turn to foreign websites when researching developments and products. Serial No. 77758863 8 * * * GregGo is scientifically manufactured by LBPTRC, a probiotic natural organic fertilizer, that contains a complete and lasting substance for the land, to enhance the fertility of the soil and to protect the ecological system on earth. 7. An article posted on the Energy Farms Network website (energyfarms.net) entitled “All Natural, Probiotic Fertilizer.” The article discusses a liquid used to fertilize plants at a South American farm: “The preparation uses mixtures of nitrogen rich plants (legumes) and animal wastes to generate a pro- biotic organic fertilizer.”10 8. An article posted on the PRWeb.com website (October 29, 2010) entitled “Go Green Without Going Broke with New Technology – Natural, Probiotic, & Enzymatic FertilizeIt Products from the FertilizerStore.com.”11 New technology in the organic fertilizer industry is based on probiotics and natural enzymes instead of chemicals. … * * * These green fertilizers give the soil a probiotic jump start to do what they would do naturally. … * * * This technology and use of probiotic, natural, and enzymatic products is particularly applicable to the agriculture industry. 10 September 19, 2009 Office action. 11 February 24, 2011 Office action. Serial N 9 Supplem of “Plan T 1 SURYA 12 Septem Earths B 13 May 2 14 May 2 o. 777588 . Earth ents.”12 T et Product Many mana micro fertil Simil nutri Soil syste accom appar a so nutri Lawn and p he Earths 0. The natural pr ber 14, 20 alance DRE 4, 2011 Offi 4, 2011 Offi 63 sBalance. he “Probi s” along w chemica ge turf co bial popul izer alone arly, no b tional bala microbes matic ma plishes t ent that a und mic tional need Program lant. (Em Balance p GardenCe obiotic fer 09 Office ac NCH Prob ce action. ce action. com web otic Fertili ith “Natur ls and fe nditions d ation of th cannot p iological s nce. break d nner. N his task good fert robial sy of the law to stimula phasis in t roducts are nterMagaz tilizer prod tion. See a iotic Fertili 9 site desc zer Supple al Fertilize rtilizers c isrupt an e soil. Or rovide so olution b own fert or one b alone. T ilization pr stem, com n. Use a te the vita he origina sold on th ine.com ucts.14 lso TheFind zer. ribing it ments” ar rs.” ommonly d destroy ganic and il microbi y itself ca ilizers in acterium his being ogram sho plementa s part of o l reaction l). e TheFind website a .com websi s “Probio e listed as applied the natur non-organ al balanc n mainta a high of fungu said, it uld includ ry to th ur Probiot s in the so .com web dvertising te advertisi tic Ferti a subcate to al ic e. in ly s is e e ic il site.13 the sale ng the sale lizer gory of of Serial N 1 of GWhi 1 Probioti 1 TECHN 15 May 2 16 May 2 o. 777588 Surya healt 1. Mars z lawn tre WE H If yo (phos herbi organ reduc probi detox have spots 2. The c.16 “Biota 3. The A OLOGY c 4, 2011 Offi 4, 2011 Offi 63 ’s organi hier way t hall Pet P atment for AVE THE u are usi phorous), cides you w ic and p e the buil otic lawn ify your a product heal more BiotaMax. Max is an nConBio- alled ‘PRO ce action. ce action. c, all-natu o grow bea roducts we treating l SOLUTIO ng a high K (potassi ould imp robiotic fe d up [sic] program soil www. called Do rapidly. com webs all-natur Services.co BIOTICS’ 10 ral probio utiful, mor bsite (ma awn burns NS salt fert um), from rove the so rtilizer p of salts in available earthbalan gonit that ite advert al soil prob m websit a method tics offer e bountifu rshallpet.c caused by ilizer N ( chemical il conditio rograms the soil. that wou ce.com a will help ising the iotic.” e advertisi of growing a greene l plants. om) adver dog urine nitrogen) sources an ns by usin designed We have ld help nd we als the yello sale of B ng its “un that min r, tising the .15 P d g to a to o w iota Max ique pate imizes the sale Soil nted use Serial No. 77758863 11 of pesticides, herbicides and chemicals by bringing to the soil, ‘the THIRD ELEMENT’ in agronomy, macrobiotics.” AnCon Bio-Services sells “a patented fertilizer called PROBIOTIC 1F/1G.”17 14. The MaterialScienceOrganics.com website webpage for “Soil Probiotics.”18 Soil Probiotics: Organic Growing By breaking down dead organic matter, microbes process nutrients for plant use. Without microbes you have dead soil or at best soil that is producing less than its full potential. Our soil probiotics are scientific blends of microbes and minerals formulated to restore soil fertility and process a more desirable product in more abundance. * * * Our soil probiotics are of the highest quality for organic growing. … 15. The SCIProbiotics.com website advertising the sale of SCD Probiotics Soil Enrichment.19 Probiotics provide sustainable options for improved agricultural/environmental performance. All living systems – including soil, plants, and trees – have a microbial ecology that can be managed and improved by the constant delivery of SCD Probiotics. Regenerating good bacteria produces a microbial ecology where beneficial bacteria dominate harmful bacteria, creating a healthier, more vibrant environment. * * * 17 May 24, 2011 Office action. 18 September 16, 2011 Office action. 19 September 16, 2011 Office action. Serial N 1 1 tree roo 20 Septem 21 Septem o. 777588 6. The I Probi Provi perfo The their scale Here Agric •Imp •Imp •Imp •Acce •Odo 7. The S ts.21 Produ SoulS to tre ber 16, 20 ber 16, 20 63 nnovativeP otics – ding sust rmance benefits o personal u agricultur is a peek a ultural Us roved crop roved nutr roved seed lerated co r control in oilSoup.co cts: Prob oup Probi at stressed 11 Office ac 11 Office ac robiotics.c ainable so f probiotic se can al al, industr t some of es: performan itional up germinat mposting i livestock m website iotics otic is a m tree roots tion. tion. 12 om websit lutions fo s that co so be foun ial or com the possibi ce take ion n large-sc areas advertisi ildly acidi . e.20 r improve nsumers d d when us mercial ap lities: ale applica ng its prod c solution d busine iscovery ed in larg plications. tions … uct for tre that is use ss in e- ating stre d ssed Serial N 1 and met T behind the term Max Soi to use th 1395 (T probioti method that tho or meth A ingredie 22 Derive o. 777588 8. A cop hod.”22 The comp agent prom he exampl their prod as gene l Probiotic e term. C TAB 199 cs as soil b of using fr se writing od of using pplicant h nt of his fe d from Free 63 y of U.S. P inventio ositions i , granula oting healt es of comp ucts is per ric (e.g., E , and SCD ontinenta 9). Furt ased orga iendly bac about fert friendly b imself use rtilizer. PatentsOnl atent 625 n includ ncluding r humate hy plant g etitors’ u suasive ev arth Bala Probiotics l Airlines I hermore, nisms that teria on th ilizers per acteria on s the term ine.com att 13 2826 for a es prob pulverized ore, and rowth with se of the t idence tha nce Probi Soil Enri nc. v. Uni the articl are benef e soil, and ceive the t the soil as PROBIOT ached to th “Probiotic iotic soi alfalfa, a calcium out pestic erm “Prob t the rele otic Fertil chment) a ted Airline es about icial bacte organic fe erm PROB an ingred IC as a ge e Septembe soil additi l additiv a wettin source f ides. iotics” as vant consu izer Supp nd that com s Inc., 53 soil treat ria that liv rtilizer an IOTIC as ient of fer neric term r 16, 2011 ve compos e g or the techno mers perc lements, B petitors USPQ2d 1 ment ide e in the so d demonst the techno tilizer. to identif Office action ition logy eive iota need 385, ntify il, a rate logy y an . Serial No. 77758863 14 The commercial impression conveyed by applicant’s package is that the fertilizer brand is DR. EARTH and that Pro-Biotic Beneficial Soil Microbes are its ingredients. Applicant argues that he conceived of the use of the term PROBIOTICS in connection with fertilizers23 and that “[a]ny association of the term with fertilizers did not exist prior to applicant’s use of it.”24 The fact that an applicant may be the first or only user of a generic designation does not justify registration if the only significance conveyed by the term is that of the category of the goods. See In re Greenliant Systems Ltd., 97 USPQ2d 1078, 1083 (TTAB 2010);; In re National Shooting Sports Foundation, Inc., 219 USPQ 1018, 1020 (TTAB 1983) (SHOOTING, HUNTING, OUTDOOR TRADE SHOW AND CONFERENCE held apt descriptive name for conducting and arranging trade shows in the hunting, shooting, and outdoor sports products field). See also In re BetaBatt Inc., 89 USPQ2d 1152, 1156 (TTAB 2008) (“the fact that applicant may be the first and only user of a merely descriptive term does not justify registration if the only significance conveyed by the term is merely descriptive.”). The evidence noted above indicates that significance of the term PROBIOTICS as a method of using soil based microbes in fertilizers. Furthermore, the determination of whether a term is capable of functioning as a mark is made at the time of registration. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“the proposer time for measuring inherent distinctiveness is at the time of registration.”). See also 23 Applicant’s Brief, p. 1. 24 Applicant’s Brief, p. 4. Serial No. 77758863 15 Remington Prods. Inc. v. N. Amer. Philips Corp., 892 F.2d 1576, 13 USPQ2d 1444, 1449 (Fed. Cir. 1990) (holding that the phrase “travel care” had “gone into the public domain as a category of goods designation in the marketplace by reason of its extensive use as such” by the time the trademark registration was sought, the point at which the descriptiveness of the mark is properly determined). Thus, applicant’s contention that he first used the term in connection with soil and fertilizers and that prior to that time it had never been used in connection with soil and fertilizer has little value. Applicant asserts that the term PROBIOTIC is not generic because the dictionary definitions identify it as a supplement for living organisms, not for soil and fertilizer.25 However, the fact that a term has evolved beyond its dictionary meaning does not make it registrable. It is well settled that the fact that a term is not found in a dictionary is not controlling on the question of registrability if the examining attorney can show, as she did in this case, that the term has a well understood and recognized meaning. See In re Central Counties Bank, 209 USPQ 884, 888 (TTAB 1981); In re Orleans Wines, Ltd., 196 USPQ 516 (TTAB 1977). Finally, as noted above, applicant’s counsel stated that “While it is in fact true that some probiotic elements are present in the fertilizer, the word probiotic is not specific to any ingredient.”26 This argument is without merit. See In re Hubbard Milling Co., 6 USPQ 1239 (TTAB 1987). In Hubbard, the Board rejected applicant’s argument that MINERAL-LYX for “molasses-based animal feed 25 Applicant’s Brief, pp. 5-6. 26 Applicant’s August 30, 2010 response. Serial N supplem the prim because part of t are goin utilizing In for a fe bring ba F applican of the designa (i.e., fer percepti As to ac case of a Co., Ltd T distinct the mar 829, 166 o. 777588 ent conta ary ingre it “aptly d he lick.” 6 g to unde probiotic view of t rtilizer us ck the sym Wheth or the sak t’s use of term PR tion PROB tilizer), w on of this quired dis cquired d ., 840 F.2d he amoun iveness de k sought t USPQ 34 63 ining mine dients of i escribes a USPQ2d rstand PR technology he foregoi ing friend biotic rela er the term e of compl PROBIOT OBIOTIC IOTIC inc e have co designati tinctivene istinctiven 1572,6 US t and ch pends on t o be regist , 39 (C.C. rals” is n ts blocks a pplicant’s at 1240. L OBIOTIC . ng, we fin ly bacteria tionships PROBIO eteness, w IC is not g has acqu apable of b nsidered on, includi ss, applica ess. See Y PQ2d 100 aracter o he facts o ered. See P.A. 1970) 16 ot generic nd found goods eve ikewise, i as the ge d that the on the s in the soil TIC has ac e now turn eneric but ired dist eing a sou all of the ng the ev nt has the amaha In 1, 1006 (F f evidence f each case Roux Labs ; In re Heh because m instead th n though m n this case nus of go term PRO oil produc . quired dis to the iss merely de inctivenes rce identi evidence idence of burden t ternationa ed. Cir. 19 required and part ., Inc. v. C r Mfg. Co inerals do at the ter inerals c , the relev ods, name BIOTIC a ing microb tinctivene ue of whet scriptive, s. In find fier for ap touching acquired d o establish l Corp. v. H 88). to estab icularly on lairol Inc. ., 279 F.2d not comp m was gen omprise on ant consum ly, a ferti generic n ial ecolog ss? her, assum applicant's ing that plicant's g on the pu istinctiven a prima oshino G lish acqu the natu , 427 F.2d 526, 528, rise eric ly a ers lizer ame y to ing use the oods blic ess. facie akki ired re of 823, 126 Serial No. 77758863 17 USPQ 381, 383 (C.C.P.A. 1960); In re Gammon Reel, Inc., 227 USPQ 729, 730 (TTAB 1985). Typically, more evidence is required where a mark is so highly descriptive, that purchasers seeing the matter in relation to the named goods would be less likely to believe that it indicates source in any one party. See, e.g., In re Bongrain Int’l Corp., 894 F.2d 1316, 1318, 13 USPQ2d 1727, 1729 (Fed. Cir. 1990); In re Seaman & Assocs., Inc., 1 USPQ2d 1657, 1659 (TTAB 1986); In re Packaging Specialists, Inc., 221 USPQ 917, 919 (TTAB 1984). Evidence that third parties in applicant’s field use the same or substantially the same wording as the mark, or very similar wording as the mark, as in this case, tends to indicate the mark is at least highly descriptive. Applicant bases his claim that his use of PROBIOTIC in connection with fertilizers has acquired distinctiveness on his use of that term since at least as early as July 12, 2000.27 We do not find applicant’s evidence to be convincing. First, applicant’s use since July 2000, while indicative of some degree of commercial staying power, is not conclusive or persuasive considering the nature of the subject matter sought to be registered and the widespread third-party use of that term. In re Ennco Display Systems Inc., 56 USPQ2d 1279, 1286 (TTAB 2000) (applicant’s use of the product designs ranging from seven to seventeen years is insufficient to 27 Applicant’s June 6, 2011 response. The letter by Mike Amaranthus, PhD., President of Mycorrhizal Applications, Inc., “The leader in mycorrhizal soil and plant inoculants,” is not probative as to whether PROBIOTIC has acquired distinctiveness. Although Dr. Amaranthus credits applicant for popularizing PROBIOTIC in connection with fertilizers through applicant’s activities since the 1990s, Dr. Amaranthus concludes by commending applicant’s “innovative vision that has made probiotic a common word now in the lawn & garden industry.” (Applicant’s April 11, 2011) response. In other words, Dr. Amaranthus stated that PROBIOTIC is the generic name for a type of fertilizer in the lawn and garden industry. Serial No. 77758863 18 bestow acquired distinctiveness). See also In re Packaging Specialists, Inc., 221 USPQ 917, 920 (TTAB 1984) (evidence submitted by applicant held insufficient to establish acquired distinctiveness of PACKAGING SPECIALISTS, INC., for contract packaging services, notwithstanding, inter alia, continuous and substantially exclusive use for sixteen years, deemed “a substantial period but not necessarily conclusive or persuasive”). Applicant did not submit any sales figures, either in dollar or units, market share information, or advertising expenditures. We further note that the record is lacking in any media recognition regarding applicant’s product and how the term PROBIOTIC points uniquely and exclusively to applicant. To put the matter simply, a good deal more evidence than that offered here is necessary to establish that applicant’s mark PROBIOTIC has acquired distinctiveness. Decision: The refusal to register is affirmed.