Monsterops LLC

Trademark Trial and Appeal Board

May 15, 2017

No. 86295490 (T.T.A.B. May. 15, 2017)

This Opinion is Not a
Precedent of the TTAB

Hearing: April 20, 2017 Mailed: May 15, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Monsterops LLC
_____

Serial No. 86295483
Serial No. 86295490
(Consolidated)1
_____

Don D. Cha of Hamilton DeSanctis & Cha, LLP for Monsterops LLC.

Shaila E. Lewis, Trademark Examining Attorney,2 Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Kuhlke, Ritchie, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Monsterops LLC (“Applicant”) seeks registration on the Principal Register of the
marks PLAZMA and PLAZMA REACTIVE PUMP, both in standard characters, for

1 Following the briefing in the two appeals, the Board consolidated them at the request of
Applicant. Citations to the briefs are to the TTABVUE file in Application Serial No. 86295483
unless otherwise indicated.
2 Both applications were initially examined by another Trademark Examining Attorney and
were reassigned to Ms. Lewis, who filed the Patent and Trademark Office’s briefs on both
appeals and appeared at the oral hearing. We will refer to both Examining Attorneys in this
opinion in the singular as the “Examining Attorney.”
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“dietary and nutritional supplements; dietary and nutritional supplements for
endurance sports; dietary supplements,” in International Class 5.3
The Examining Attorney has refused registration of both marks under Section
2(a) of the Trademark Act, 15 U.S.C. § 1052(a), on the ground that they consist of or
comprise deceptive matter. She has refused registration of PLAZMA on the
alternative ground, under Section 2(e)(1) of the Trademark Act, 15 U.S.C. §
1052(e)(1), that the mark is deceptively misdescriptive of the identified goods. She
has refused registration of PLAZMA REACTIVE PUMP on the alternative ground,
under § 2(e)(1) and Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), that
PLAZMA is deceptively misdescriptive of the identified goods, and its phonetic
equivalent “plasma” must be disclaimed as a condition to registration of the mark.
After the Examining Attorney made the refusals final, Applicant timely appealed
in both cases. The appeals are fully briefed, and the Examining Attorney and counsel
for Applicant appeared at an oral hearing before the panel on April 20, 2017. We
affirm both refusals to register under Section 2(a), and we affirm the alternative
refusals to register PLAZMA under Section 2(e)(1) and PLAZMA REACTIVE PUMP
without a disclaimer of “plasma” under Sections 2(e)(1) and (6).
I. Prosecution Histories and Records on Appeal
On June 26, 2014, the Examining Attorney issued first Office Actions refusing
registration of PLAZMA on the ground that it was merely descriptive of a feature of

3 Application Serial No. 86295483 to register PLAZMA and Application Serial No. 86295490
to register PLAZMA REACTIVE PUMP were both filed on May 29, 2014 under Section 1(a)
of the Trademark Act, 15 U.S.C. §1051(a), on the basis of Applicant’s claim of first use of the
marks, and first use of the marks in commerce, at least as early as January 1, 2013.
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the identified goods and refusing registration of PLAZMA REACTIVE PUMP on the
ground that it was confusingly similar to a registered mark.4 The Examining
Attorney also required a disclaimer of word “plasma” (the correct spelling of the
misspelled word PLAZMA) in the PLAZMA REACTIVE PUMP mark on the ground
that it was merely descriptive of a feature of the goods. The Examining Attorney made
of record in both applications pages from Internet websites regarding dietary and
nutritional supplements.
Both applications became abandoned on January 22, 2015 when Applicant did not
timely respond to the first Office Actions, but were revived on February 3, 2015 when
Applicant filed Petitions to Revive and Responses to the Office Actions, in which
Applicant traversed the refusals to register. Applicant made of record in the PLAZMA
application pages from its website describing the goods sold under the claimed mark.
On February 26, 2015, the Examining Attorney issued second Office Actions in
both applications. The Examining Attorney refused registration of both marks on the
ground that they were deceptive, refused registration of PLAZMA on the alternative
ground that it was deceptively misdescriptive, continued the disclaimer requirement
in the PLAZMA REACTIVE PUMP application, and requested in both applications
that Applicant provide information regarding the nature of its goods.

4 Although this refusal was continued and maintained through subsequent Office Actions in
the PLAZMA REACTIVE PUMP application, it is not before us on appeal because the
Examining Attorney did not include it in the Office Action making final the refusal to
register, and we presume that the refusal was withdrawn. We will not discuss it further in
this opinion.
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Applicant responded to the second Office Actions on August 25, 2015 by traversing
the refusals to register and the disclaimer requirement in the PLAZMA REACTIVE
PUMP application. In its responses to the information requests, Applicant stated,
among other things, that “Applicant’s goods and services are directed to increasing
electrolytes and nutritional supplements within user’s blood plasma thereby
‘increasing metabolic rate, [driving amino acids], and other key nutrients into the
muscle cell to the point of creating a high-performance effect,’” and that “Applicant’s
goods and services . . . do NOT contain plasma” and “do not increase ‘plasma in the
body.’” August 25, 2015 Responses to Office Actions at 2-3 (emphasis in original). In
the PLAZMA REACTIVE PUMP application, Applicant made of record materials
describing its product.
On September 30, 2015, the Examining Attorney issued third Office Actions. The
Examining Attorney maintained the descriptiveness, deceptiveness, and deceptive
misdescriptiveness refusals in the PLAZMA application, maintained the
deceptiveness refusal and the disclaimer requirement in the PLAZMA REACTIVE
PUMP application, and issued new information requests in both applications
requiring Applicant to provide additional information and materials regarding its
goods and their composition. The Examining Attorney made of record in both
applications definitions of “plasma” and “whey” from dictionary.com, and evidence
that there was no dictionary definition of “plazma.” The Examining Attorney also
made of record in the PLAZMA application Internet evidence regarding dietary and
nutritional supplements.
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On February 1, 2016, Applicant responded to the third Office Actions, traversed
the refusals to register, and made of record in both applications Applicant’s product
label and product use instructions. Applicant discussed, but did not make of record,
definitions of “plasma” from vocabulary.com.
On February 29, 2016, the Examining Attorney issued fourth Office Actions in
both applications. The Examining Attorney made final the deceptiveness refusals in
both applications, the deceptively misdescriptive refusal in the PLAZMA application,
and the disclaimer requirement in the PLAZMA REACTIVE PUMP application. The
Examining Attorney made of record in both applications a definition of “plasma
protein” from thefreedictionary.com, a page from www.grammar.cl regarding the
pronunciation of the letter “s,” and pages from various websites regarding dietary and
nutritional supplements.
II. Analysis of Deceptiveness Refusals
Section 2(a) of the Trademark Act prohibits registration of a mark if “it–[c]onsists
of or comprises . . . deceptive . . . matter.” 15 U.S.C. § 1052(a). The Federal Circuit
has held that as used in § 2(a), the word “comprises” means “includes,” In re Fox, 702
F.3d 633, 105 USPQ2d 1247, 1250 (Fed. Cir. 2012), and “[i]t is well established that
a mark may be found deceptive on the basis of a single deceptive term that is
embedded in a larger mark . . .” In re White Jasmine LLC, 106 USPQ2d 1385, 1391
(TTAB 2013) (citations omitted) (finding composite mark WHITE JASMINE and
design deceptive as applied to tea not containing white tea because of deceptiveness
of “WHITE” within the mark). Registration of a mark in an application containing
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multiple goods in a class may be refused as to the entire class if “the mark is deceptive
as applied to any of the goods in the application.” Id.
“The test for deceptiveness is whether all three of the following criteria are met:
(1) Is the term misdescriptive of the character, quality, function, composition
or use of the goods?
(2) If so, are prospective purchasers likely to believe that the misdescription
actually describes the goods?
(3) If so, is the misdescription likely to affect the purchasing decision of a
significant portion of relevant consumers?”
In re Tapco Int’l Corp., 122 USPQ2d 1369, 1371 (TTAB 2017) (citing In re Budge, 857
F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988)). Section § 2(a) is an absolute bar to
registration of marks consisting of or comprising deceptive matter on either the
Principal Register or the Supplemental Register. Id.5
A. Misdescription
“As the starting point for our analysis, we note that for a term to misdescribe
goods, the term must be merely descriptive of a significant aspect of the goods which
the goods could plausibly possess but in fact do not.” White Jasmine, 106 USPQ2d at

5 As noted above, unlike on the PLAZMA appeal, where the Examining Attorney argues
alternatively that if PLAZMA is not found to be deceptive, it is deceptively misdescriptive
and should be refused registration on that basis, on the PLAZMA REACTIVE PUMP appeal,
the Examining Attorney’s alternative position is that if the mark is not found to be deceptive,
the word PLAZMA is deceptively misdescriptive and its equivalent “plasma” must be
disclaimed as a condition to registration of the mark.
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1392. To make this determination, we must first decide the meaning of the term
PLAMZA as it appears in both marks.
The Examining Attorney argues that PLAZMA has no known meaning, and is an
intentional misspelling of, and the phonetic equivalent of, the word “plasma.” 7
TTABVUE 6. Applicant admits “that the term PLAZMA is intentionally spelled with
a letter ‘Z’ rather than ‘S,’” 8 TTABVUE 4 (Serial No. 86295490), and does not dispute
that PLAZMA is the phonetic equipment of “plasma.” Its arguments on both appeals
focus primarily on the meaning and significance of the word “plasma” as applied to
the identified goods. 4 TTABVUE 6-8; 8 TTABVUE 3-5; 4 TTABVUE 6-8; 8
TTABVUE 4-6 (Serial No. 86295490).6 Under the circumstances, and in the absence
of any record evidence to the contrary, we find that consumers will understand the
term “PLAZMA” as it appears in both marks to have the meaning “plasma.” See
Tapco, 122 USPQ2d at 1372 (finding that “consumers will understand KLEER to
have the meaning ‘clear’”). This is significant because “[i]t is settled that the phonetic
equivalent of a deceptive term is also deceptive,” id. (citations omitted), so if “plasma”
is deceptive as applied to the identified goods, PLAZMA is as well.
We must next determine what “plasma” means in the context of the subject goods
because the Examining Attorney and Applicant partially disagree on its meaning.
The Examining Attorney argues on both appeals that “plasma” means both “whey”
and “blood plasma.” 7 TTABVUE 10; 7 TTABVUE 7 (Serial No. 86295490). For the

6 In making these arguments, Applicant does not cite a single case in any of its four briefs
and does not organize them within the Budge analytical framework, which it never discusses.
4 TTABVUE 8; 8 TTABVUE 3-5; 4 TTABVUE 8-9; 8 TTABVUE 3-6 (Serial No. 86295490).
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definition of “plasma” as “whey,” she relies on an entry from Dictionary.com made of
record in the September 30, 2015 Office Actions in both applications.7 Applicant
agrees that “the ‘simple definition’ of the term ‘plasma’ means ‘the watery part of
blood that contains blood cells,’” but disputes that “plasma” also means “whey.” 4
TTABVUE 6 (Serial Nos. 86295483 and 86295490); 8 TTABVUE 3-4; 8 TTABVUE 4-
5 (Serial No. 86295490).8
“[D]eceptiveness, or misdescriptiveness, is not considered in the abstract. Instead,
it must be determined in relation to the goods for which registration is sought.
Therefore, the fact that a term may have different meanings in different contexts is
not controlling.” Tapco, 122 USPQ2d at 1372. In relation to the dietary and
nutritional supplements identified in the applications, we agree with Applicant that
“plasma” would not be understood to mean “whey,” in part because the definition of

7 This meaning is the third of five listed meanings of “plasma” in the Dictionary.com entry
cited by the Examining Attorney. The first listed meaning, which appears after the words
“Anatomy, Physiology,” is “the liquid part of blood or lymph, as distinguished from the
suspended elements.”
8 In support of this argument, Applicant cites a definition of “plasma” from the Merriam-
Webster online dictionary that does not define the word as “whey.” 4 TTABVUE 6. The
definition is attached as Exhibit 2 to its main briefs on both appeals, but was not made of
record during prosecution. 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 form or regular fixed editions, In re Red Bull GmbH, 78 USPQ2d 1375, 1377
(TTAB 2006). We judicially notice the referenced Merriam-Webster definition (merriam-
wesbter.com, accessed on May 13, 2017), as well as additional definitions of “plasma” from
the Cambridge Dictionary as “the liquid part of blood that carries the blood cells”
(dictionary.cambridge.org, accessed on May 13, 2017), from the Oxford Living Dictionaries
as “the colourless fluid part of blood, lymph, or milk, in which corpuscles or fat globules are
suspended” (en.oxforddictionaries.com, accessed on May 13, 2017), and from
vocabulary.com as “the colorless watery fluid of the blood and lymph that contains no cells,
but in which the blood cells (erythrocytes, leukocytes, and thrombocytes are suspended”
(vocabulary.com, accessed on May 13, 2017).
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“plasma” as “whey” proffered by the Examining Attorney appears to be an outlier. As
noted above, the first definition of “plasma” in the Dictionary.com entry cited by the
Examining Attorney is as “the liquid part of blood or lymph, as distinguished from
the suspended elements,” an additional definition of “plasma” from the
thefreedictionary.com (Medical Dictionary) of record in both applications defines
“plasma” as “the fluid portion of the blood in which corpuscles are suspended,” but
not as “whey,” February 29, 2016 Office Actions at 3, and none of the other dictionary
definitions of “plasma” that we have noticed defines the word as “whey.”
Accordingly, we find that in the context of the subject goods, the more accepted
and generally-known definition of “plasma” is as the liquid portion of blood in which
blood cells are suspended, the alternative definition proffered by the Examining
Attorney and the definition argued by Applicant. Cf. In re Jim Crockett Promotions,
Inc., 5 USPQ2d 1455, 1456 n.5 (TTAB 1987) (rejecting single dictionary definition of
word argued by Examining Attorney in favor of alternative definition where six other
dictionaries consulted by Board did not define the word in the manner argued by the
Examining Attorney). We will assess whether “plasma” is deceptive as applied to
Applicant’s goods by reference to that definition.
The Examining Attorney argues that the word PLAMZA in the marks
misdescribes the identified goods in both applications because “‘plasma’ is a known
ingredient in dietary and nutritional supplements,” and “Applicant has made it clear
through its own admission and through the specimens of record that applicant’s goods
do not contain plasma.” 7 TTABVUE 7 (Serial No. 86295490). The Examining
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Attorney cites third-party websites in the record to support her claim that plasma in
protein form is a known ingredient in dietary and nutritional supplements.9 Portions
of pages from those websites are reproduced below:

September 30, 2015 Office Actions at 4 (supplementarium.com).

9 The Examining Attorney also made of record webpages regarding the use of plasma protein
to treat various medical conditions. These therapeutic uses have little probative value on
these appeals because, as Applicant’s specimen of use states, dietary and nutritional
supplements are “not intended to diagnose, treat, cure, or prevent any disease.”
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September 30, 2015 Office Actions at 3 (ultimatefatburner.com) (reproduced in
part).

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February 29, 2016 Office Actions at 4 (needtobuildmuscle.com) (reproduced in part).

February 29, 2016 Office Actions at 8 (legalsteroidstore.com) (reproduced in part).
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. . .

February 29, 2016 Office Actions at 5-6 (essentiaproteins.com) (reproduced in part).
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Applicant makes several arguments that the Examining Attorney’s reliance on
this evidence to show midescriptiveness is misplaced. First, Applicant argues that
the evidence does not show that plasma (or plasma protein) is an ingredient in dietary
or nutritional supplements, claiming that the word “plasma” is instead used in the
evidence of record “to refer to the liquid portion of blood.” 4 TTABVUE 7. We disagree.
The webpage regarding the Super Plasma Protein supplement states that it “is
>90% protein isolate and made from hydrolyzed beef plasma. The powder is spray
dried and concentrated into edible bovine plasma and is then made into bovine serum
and concentrated to have an immunoglobulin content of 40% minimum.” (Emphasis
added). The webpage for Essentia Metabolic Proteins’ SuperSerum supplement
identifies EMP as “the world’s largest manufacturer of pharmaceutical grade bovine
plasma, serums and beef proteins used in everything from vaccines and diagnostic
kits to providing the performance nutrition that elite athletes need to excel.” (Emphasis
added). The SuperSerum supplement is described as an “entirely new bovine protein
source, sometimes called ‘serum protein concentrate’” that requires “huge tankers full
of plasma to yield just a small fraction of the potent SuperSerum!” (Emphasis added).
The needtobuildmuscle.com webpage states that the Gear supplement “uses the
power of Super Plasma Blood Serum Protein,” which is described as “protein isolate
and made from hydrolyzed animal plasma.” (Emphasis added.) Finally, the product
review entitled “Colostrum and Bovine Plasma Protein,” which Applicant does not
address, answers the question “What’s in bovine plasma protein?” by stating that “the
word ‘plasma’ says it all,” and describes the proteins that exist in bovine plasma. The
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reviewer states that she has tried several plasma protein products and has seen some
other reviews “for plasma protein.”10
As used on these webpages, “plasma” refers to a protein in supplements that is
derived from animal blood plasma. This evidence shows that consumers would
understand the word in that manner when it is used in connection with supplements,
rather than as blood plasma per se, as Applicant argues. Applicant effectively
concedes this by arguing in its reply brief on the PLAZMA REACTIVE PUMP appeal
that “no consumer of an over the counter nutritional supplement will mistake goods
associated with the applied for mark to actually contain [blood] plasma” and that
“with consumers being very aware of blood born [sic] diseases, it would be extremely
unlikely that prospective purchasers would expect goods associated with the applied
for mark to actually contain blood plasma given the goods associated with the applied
for mark is [sic] not subject to FDA approval.” 8 TTABVUE 5 (Serial No. 86295490).
Second, Applicant appears to argue that there is a distinction, for purposes of
consumer perception of the applied-for marks, between the word “plasma” alone and
the words “plasma protein.” Applicant claims that “none of the evidences cited by the
Examining Attorney equates the term ‘plasma’ with a ‘special protein.’” 4 TTABVUE
7. In its reply brief on the PLAZMA REACTIVE PUMP appeal, Applicant argues that
“all of the cited references explicitly recites [sic] proteins when referencing
proteins in blood plasma or whey.” 8 TTABVUE 6-7 (Serial No. 86295490) (emphasis

10 An entry from freedictionary.com made of record by the Examining Attorney in the
February 29, 2016 Office Actions in both applications defines “plasma protein” as “a protein
present in blood plasma, such as albumin or globulin.”
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in original), and that “[n]o one uses the term ‘plasma’ to refer to ‘animal protein . . .’”
8 TTABVUE 7 (Serial No. 86295490).
The record does not support Applicant’s apparent claim that consumers of dietary
or nutritional supplements would not understand PLAZMA, as it is used in
Applicant’s marks, to describe protein derived from animal blood plasma simply
because it appears in the marks without the word “protein.” The third-party uses of
“plasma” in the record, including the use of “Super Plasma” to identify “[t]he first new
protein source to hit the market since whey protein 10 years ago” and the use of
“Super Plasma Serum” to refer to “the protein that already exists in the blood
plasma,” as well as the review of plasma protein on the website of
ultimatefatburner.com, which states that “the word ‘plasma’ says it all” in defining
what is in bovine plasma protein, establish that it is more likely that when PLAZMA
appears in the marks, it will be understood as a shorthand reference to plasma
protein derived from animal plasma. Tapco, 122 USPQ2d at 1372 (finding that
consumers would understand the mark KLEER, the phonetic equivalent of “clear,” to
have that meaning in the absence of rebuttal evidence showing another meaning).
Third, Applicant argues that its misspelling of “plasma” as PLAZMA was intended
“to clearly indicate that the goods and services associated with Applicant’s product
does [sic] not contain any plasma,” 8 TTABVUE 4 (Serial No. 86295490), and that
“the mark PLAZMA is intended to imply or merely suggest the mechanism of the
goods and services associated with the applied for mark.” 8 TTABVUE 3 (Serial No.
86295483). There is no evidence in the record to support these claims, or to show that
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the purchasing public would understand PLAMZA in this manner when it appears in
the marks. Given the Examining Attorney’s evidence that “plasma” has a descriptive
meaning as applied to supplements, the unsupported arguments of Applicant’s
counsel regarding the claimed intended and perceived meaning of PLAZMA are
insufficient in rebuttal. Budge, 8 USPQ2d at 1261 (rejecting argument of counsel
regarding industry practices in the absence of supporting evidence); In re Hinton, 116
USPQ2d 1051, 1052 n.4 (TTAB 2015) (rejecting applicant’s argument regarding
manner of consumer recognition of mark where it was “unsupported by any objective
evidence” because “[o]nce a prima facie case is established, the burden of coming
forward with competent evidence in rebuttal shifts to Applicant.”).
Fourth, Applicant argues, on the basis of its product label and related materials,
that PLAZMA, as it appears in the marks “is merely suggestive of a possible route
of action,” namely, that “the goods and services associated with the applied for mark
provides [sic] increased nutrients in blood, in particular in blood plasma or the liquid
portion of blood.” 4 TTABVUE 8 (emphasis in original). In its reply brief on the
PLAZMA appeal, Applicant argues as follows:
Specifically, the goods and services of [sic] associated with
PLAZMA provides [sic] enhanced nutrient uptake into
muscle, via “enriched” circulating blood plasma.
Specifically, the nutrients in the goods and services
associated with PLAZMA are designed for rapid absorption
into blood plasma and enhanced uptake into working
muscle. . . . The supplement industry has consistently used
various marks to imply this effect, such as the term
“pump,” which relates specifically to a muscle that is
engorged with blood plasma. The term “pump” does not
mean it actually contains a mechanical apparatus or it
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actually performs such an action, but merely to describe a
muscle that is engorged with blood plasma.
8 TTABVUE 3 (Serial No. 86295490).
In its reply brief on the PLAZMA REACTIVE PUMP appeal, Applicant further
argues that its mark “should be considered in its entirety [and] should not be broken
into isolated elements,” 8 TTABVUE 3 (Serial No. 86295490), supporting this
argument with a similar claim based on its product label and related materials that
“the applied for mark PLAZMA REACTIVE PUMP merely suggests a mode of action
of the goods associated with the applied for mark.” 8 TTABVUE 3. Applicant also
argues that “[s]imply parsing out the term PLAZMA ignores the concept provided by
the entirety of the applied for mark.” 8 TTABVUE 3. These arguments are
unavailing.11
We must assess the misdescriptiveness of the PLAZMA and PLAZMA REACTIVE
PUMP marks on the basis of the marks themselves, not on the basis of extrinsic
materials used by Applicant. As the Federal Circuit held in Budge,
Misdescriptiveness of a term may be negated by its
meaning in the context of the whole mark inasmuch as the
combination is seen together and makes a unitary

11 With respect to Applicant’s argument regarding the meaning of its PLAZMA REACTIVE
PUMP mark as a whole, a mark containing a term that identifies a product ingredient is not
deceptive within the meaning of § 2(a) if the mark, in its entirety, would not be perceived as
indicating that the goods contained that ingredient. Compare Budge, 8 USPQ2d at 1261
(LOVEE LAMB deceptive on its face as applied to synthetic automotive seat covers) with A.F.
Gallum & Sons Corp. v. Aristocrat Leather Prods., Inc., 135 USPQ 459, 460 (TTAB 1962)
(COPY CALF not deceptive on its face as applied to synthetic wallets and billfolds because
the mark as a whole was an obvious play on the expression “copy cat” and suggested to
purchasers that the goods were imitations of items made of calf skin). Unlike the word
“COPY” in the COPY CALF mark in A.F. Gallum, the words REACTIVE PUMP in
Applicant’s PLAZMA REACTIVE PUMP mark do not negate the perception arising from the
presence of PLAZMA in the mark that Applicant’s supplements contain plasma protein.
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impression. . . . The same is not true with respect to
explanatory statements in advertising or on labels which
purchasers may or may not note and which may or may not
always be provided. The statutory provision bars
registration of a mark comprising deceptive matter.
Congress has said that the advantages of registration may
not be extended to a mark which deceives the public. Thus,
the mark standing alone must pass muster, for that is what
the applicant seeks to register, not extraneous explanatory
statements.
Budge, 8 USPQ2d at 1261 (citations omitted); see also Hinton, 116 USPQ2d at 1053-
54 (rejecting applicant’s argument regarding the meaning of its mark based on
examples of its advertising).12
Finally, Applicant argues in its reply brief on the PLAZMA appeal that the
“supplements that contain extracts of bovine plasma are very rare and only contain
the albumin that has to be extracted from plasma.” 8 TTABVUE 4. Only the first
portion of this statement is relevant to the misdescriptiveness issue, and Applicant
again offers no evidence to support it.13
The record as a whole shows that plasma protein derived from animal plasma is
a known ingredient in dietary and nutritional supplements. As discussed above,

12 Applicant made of record no evidence to support its arguments regarding the alleged
practices of the supplement industry, and the argument of its counsel is again no substitute
for such proof. Budge, 8 USPQ2d at 1261; Hinton, 116 USPQ2d at 1052 n.4.
13 In that regard, we note that in the August 2008 review of plasma protein downloaded from
the website at ultimatefatburner.com, and made of record by the Examining Attorney, in
September 2015, the reviewer stated that two plasma protein products had recently been
discontinued or reformulated, and that she was aware of only one “bulk powder version left
on the bodybuilding market.” She also stated, however, that plasma protein products were
then “easy to find in caps[ules].” Applicant’s identifications of goods in its applications contain
no limitations or restrictions on Applicant’s supplements to their current bulk powder form,
and, in any event, the record shows that supplements containing plasma protein derived from
animal plasma are available in both powder and capsule form.
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Applicant admitted during prosecution of both applications that its goods do not
contain plasma protein. August 25, 2015 Responses to Office Action at 3. The evidence
is sufficient to establish that the marks PLAZMA and PLAZMA REACTIVE PUMP
misdescribe the composition of Applicant’s supplements because they describe an
ingredient, plasma protein derived from animal plasma, that Applicant’s goods could
plausibly contain, but do not in fact contain. See Budge, 8 USPQ2d at 1260-61; Tapco,
122 USPQ2d at 1372; White Jasmine, 106 USPQ2d at 1392. We find that the
Examining Attorney has shown that Applicant’s marks are misdescriptive for
purposes of the first element of the Budge test, and that Applicant has failed to rebut
that showing.
B. Likelihood of Consumer Belief That the Misdescription Actually
Describes the Goods
The second element of the Budge test focuses on whether consumers are likely to
believe the misdescription. “The Board has applied the reasonably prudent consumer
test in assessing whether a proposed mark determined to be misdescriptive involves
a misrepresentation consumers would be likely to believe.” Hinton, 116 USPQ2d at
1052. We may infer that purchasers of Applicant’s supplements are likely to believe
the misdescription from the evidence of record, including third-party uses of the term
plasma. Budge, 8 USPQ2d at 1261.
The evidence made of record by the Examining Attorney, and Applicant’s
specimen of use in both applications (reproduced below)
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show that the consumers of the “dietary and nutritional supplements” and “dietary
and nutritional supplements for endurance sports” identified in the applications
include bodybuilders, endurance athletes, and other elite athletes, in addition to
ordinary consumers.14 Cf. Tapco, 122 USPQ2d at 1374 (presuming that purchasers of
identified adhesives included both homeowners and professional builders on the basis
of identification of goods in application alone).

14 A page from Applicant’s website made of record in its February 3, 2015 response to the first
Office Action in the PLAZMA application states that the product is “Designed for High-
Performance Athletes [and] Serious Bodybuilders & Lifters.”
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The Examining Attorney argues that these “[p]rospective purchasers are likely to
believe the misdescription actually describes the goods because ‘plasma,’ both in the
form of whey and in the form of blood plasma, is widely marketed as a highly
beneficial ingredient in dietary and nutritional supplements, particularly for the
class of consumers targeted by applicant, namely, athletes and bodybuilders.” 7
TTABVUE 15 (Serial No. 86295490).15 She also argues that the “evidence of record
shows multiple entities using the term plasma on dietary and nutritional
supplements that actually contain plasma, and many of these products explain how
plasma builds muscle and is beneficial for athletes, the same class of consumer being
targeted by applicant.” 7 TTABVUE 12 (Serial No. 86295483). Applicant does not
expressly address this element of the Budge test.
The evidence of record depicted and discussed above shows that Protein Factory’s
Super Plasma Protein supplement, Need to Build Muscle’s Gear supplement, and
EMP’s Super Serum supplement all tout protein derived from animal plasma as a
key ingredient in their products. In the absence of any contrary evidence, this
evidence of third-party use of plasma protein derived from animal plasma as a
component of supplements is a sufficient factual basis from which to infer that
bodybuilders and athletes are likely to believe that Applicant’s supplements sold
under the PLAZMA and PLAZMA REACTIVE PUMP marks also contain plasma
protein derived from animal plasma. See Tapco, 122 USPQ2d at 1373 (evidence that

15 As discussed above, we have rejected the Examining Attorney’s claim that “plasma” means
“whey” in the context of these goods, and we have thus given no consideration to the whey-
specific evidence of record.
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“some adhesives are, in fact, clear and that this feature is touted to consumers”
sufficient to satisfy burden under second element of Budge test); Budge, 8 USPQ2d
at 1261; White Jasmine, 106 USPQ2d at 1392. We find that the Examining Attorney
has shown that consumers are likely to believe the misdescription for purposes of the
second element of the Budge test, and that Applicant has failed to rebut that showing.
C. Materiality
The test for materiality under the third element of the Budge test under Section
2(a) incorporates a requirement that “a significant portion of the relevant consuming
public be deceived.” In re Spirits Int’l N.V., 563 F.3d 1347, 90 USPQ2d 1489, 1495
(Fed. Cir. 2009). “To establish that the misdescriptive quality or characteristic would
be a material factor in the purchasing decision of a significant portion of the relevant
consumers, the examining attorney must provide evidence that the misdescription
would make the product or service more appealing or desirable to prospective
purchasers.” White Jasmine, 106 USPQ2d at 1392.
The Examining Attorney again relies on the record evidence regarding third-party
supplements to show that “plasma is a preferred ingredient in dietary and nutritional
supplements.” 7 TTABVUE 12 (Serial No. 86295483); 7 TTABVUE 9 (Serial No.
86295490). Applicant once again does not expressly address this element of the Budge
test.
The third-party evidence of record, as well as Applicant’s own specimen and
website, show that bodybuilders and high-performance athletes look to dietary and
nutritional supplements for an “edge” that will enable them to train harder, longer,
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and more efficiently, to recover more rapidly, and to achieve greater muscle mass and
endurance.16 In the materials in the record depicted and discussed above, plasma
protein derived from animal plasma is touted as providing such an “edge.”
The Super Plasma Protein supplement containing plasma protein, described as “a
concentrate of serum, the gold-standard of all natural substances in supporting cell
growth and proliferation,” claims that it works “harder for you than any other protein
source,” “goes to work the minute it becomes soluble to promote protein synthesis,
reduce protein turnover, and enhance protein retention,” and “has three times the
level of anabolic growth factors than whey!” The webpage contains “a list of benefits
proven with research with the use of Bovine Serum,” including promoting cell growth
and activating the immune system, “thereby preventing protein and energy loss.”
The Gear supplement containing plasma protein claims to enable the bodybuilder
or athlete user to convert protein into muscle more efficiently and to increase muscle
mass. According to the webpage at needtobuildmuscle.com, that is because “Super
Plasma Serum is the protein that already exists in the blood plasma. It’s instantly
recognized as ‘useable’. It’s like adding blood to your blood – there is no conversion.
Whatever you add is ‘more.’ That’s what happens with Super Plasma Serum. It’s
essentially instant muscle!” The webpage contains a discussion of the physiology
behind these claimed benefits, and concludes by claiming that “Blood serum

16 For example, Applicant’s product label states that “Plazma™ enables you to perform at
and beyond your limits while recovering and gaining so fast that you’ll be itching to get back
to the gym and do it again,” while its website states that “[f]or rapid recovery from intense
training and competition – while gaining size and strength at record rates - Plazma™ will
not only make you feel unbreakable, you’ll be unbreakable.”
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proteins have a Digestibility above 90% and a protein efficiency ratio (PER)
of 2.8! THE HIGHEST SCORE EVER! In fact off the charts.” (Emphasis in
original.) The webpage at legalsteroidstore.com characterizes Gear as “the most
effective bodybuilding supplement to have been formulated for building lean muscle
mass at warp speed.” It claims more broadly that “supplements such as GEAR, which
contain super plasma serum, can help your muscles grow by more than 20%.”
The EMP webpage claims that the company provides “the performance nutrition
that elite athletes need to excel.” The description of its SuperSerum product, “a bovine
plasma fraction extract that’s nothing short of amazing!,” claims that “[t]his fast
absorbing protein will become the next ‘Gold Standard’ in the protein world which all
others will be compared to!” on the basis of “over 50 human and animal studies
supporting that supplementation of plasma proteins promotes growth, particularly
lean tissue growth,” and states that “its [sic] no wonder why its [sic] sending
shockwaves through the industry.” A portion of the webpage not reproduced above
promotes a sense of urgency and exclusivity associated with the SuperSerum product
when it states:
Even though we’re running at full capacity, we still can
only produce a small amount of the SuperSerum. It really
is one of the rarest protein sources on the planet!
Bottom-line SuperSerum is not for everyone. Some people
won’t “understand it” or refuse to pay the extra few bucks
because they don’t know the real deal when they see it and
that’s fine… But if your [sic] knowledgeable, take what you
put into your body seriously, then you better find yourself
some SuperSerum and get ready for people pulling
you aside in the gym and asking “What’re you on?”
February 29, 2016 Office Actions at 6 (emphasis in original).
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The evidence of record is sufficient to establish that the misdescription that
Applicant’s PLAZMA and PLAZMA REACTIVE PUMP supplements contain plasma
protein is “likely to affect the purchasing decisions of a significant portion of relevant
consumers,” Budge, 8 USPQ2d at 1260, by making Applicant’s supplements desirable
to bodybuilders and athletes who want the performance benefits that are touted by
supplements containing plasma protein, and more desirable to those consumers than
supplements that do not contain plasma protein. Tapco, 122 USPQ2d at 1375. We
find that the Examining Attorney has shown that the misdescription is material for
purposes of the third element of the Budge test, and that Applicant has failed to rebut
that showing.
D. Summary
The record as a whole shows that the marks PLAZMA and PLAZMA REACTIVE
PUMP, as applied to dietary and nutritional supplements that do not contain plasma
protein, consist of or comprise deceptive matter within the meaning of Section 2(a) of
the Trademark Act.
III. Analysis of Section 2(e)(1) Refusals and Disclaimer
Requirement on PLAZMA REACTIVE PUMP Application
Because of our determination on the Section 2(a) refusals, we need not reach the
refusals under section 2(e)(1) and (6); however, for completeness we address them.
White Jasmine, 106 USPQ2d at 1394.

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A. Deceptive Misdescriptiveness
Section 2(e)(1) of the Trademark Act prohibits registration of “a mark which, (1)
when used on or in connection with the goods of the applicant is . . . deceptively
misdescriptive of them.” 15 U.S.C. § 1052(e)(1). The test for whether a mark is
deceptively misdescriptive consists of the first two parts of the Budge test for
deceptiveness. Hinton, 116 USPQ2d at 1052. “‘The key difference between
‘deceptively misdescriptive’ marks under § 2(e)(1) and ‘deceptive’ marks absolutely
barred under § 2(a) is that a ‘deceptive’ mark is one in which the mis-description or
falsity is ‘material’ in that it is likely to significantly induce a purchaser’s decision to
buy.’” Id. at 1055 n.24 (quoting 2. J. Thomas McCarthy, McCarthy on Trademarks &
Unfair Competition § 11:55 (4th ed. September 2015)).17 In view of our findings above
as to the first two Budge factors, the mark PLAZMA in application Serial No.
86295483 is deceptively misdescriptive of the goods under Section 2(e)(1).
B. Disclaimer
Turning to the disclaimer requirement in the PLAZMA REACTIVE PUMP
application, under Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), the Patent
and Trademark Office “may require the applicant to disclaim an unregistrable
component of a mark otherwise registrable.” If a mark comprises a word that is
misspelled but nonetheless must be disclaimed, the Examining Attorney must

17 The practical difference between these types of marks is that unlike a deceptive mark, a
deceptively misdescriptive mark is eligible for immediate registration on the Supplemental
Register, or registration on the Principal Register upon a showing of acquired distinctiveness
under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). Applicant does not seek
registration of PLAZMA on either of these bases, however, if that mark is found to be
deceptively misdescriptive rather than deceptive.
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require a disclaimer of the word in the correct spelling. See, e.g., In re Carlson, 91
USPQ2d 1198, 1203 (TTAB 2009). Failure to comply with a requirement of a
disclaimer of an unregistrable component of a mark is a basis for refusing registration
of the entire mark. In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1399-1400 (Fed.
Cir. 2006); In re Stereotaxis, Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir.
2005).
“As a component part of our prior conclusion that [PLAZMA] is deceptive in the
context of [the PLAZMA REACTIVE PUMP] mark, we found [PLAZMA]
misdescriptive of applicant’s goods.” White Jasmine, 106 USPQ2d at 1394. PLAZMA
is an admitted intentional misspelling of “plasma,” and its phonetic equivalent. Our
subsidiary findings within our Budge analysis above that PLAZMA is misdescriptive
and that prospective purchasers are likely to believe that misdescription are a
sufficient basis upon which to affirm the alternative requirement of a disclaimer of
“plasma” apart from the PLAZMA REACTIVE PUMP mark in application Serial No.
86295490 in the event that the entire mark is not deceptive under Section 2(a). Id.
Decision: The refusals to register under Section 2(a) of the Trademark Act are
affirmed in both applications, the refusal to register under Section 2(e)(1) of the
Trademark Act is affirmed in application Serial No. 86295483, and the refusal to
register PLAZMA REACTIVE PUMP without a disclaimer of “plasma” is affirmed in
application Serial No. 86295490.