Nordic Naturals, Inc.

Trademark Trial and Appeal Board

Mar 27, 2013

No. 77131419 (T.T.A.B. Mar. 27, 2013)

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.

Mailed: March 27, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Nordic Naturals, Inc.
________

Serial No. 77131419
_______

Meredith M. Wilkes of Jones Day for Nordic Naturals, Inc.

Nelson B. Snyder III, Trademark Examining Attorney, Law
Office 107 (J. Leslie Bishop, Managing Attorney).
_______

Before Kuhlke, Cataldo, and Shaw, Administrative Trademark
Judges.

Opinion by Shaw, Administrative Trademark Judge:

Applicant, Nordic Naturals, Inc., filed an application
to register on the Principal Register the mark
CHILDREN’S DHA in standard characters for “Nutritional
supplements containing DHA”1 in International Class 5.2
Applicant disclaimed DHA apart from the mark as shown.

1 DHA is the abbreviation for docosahexaenoic acid, an omega-3
fatty acid essential for the growth and functional development of
the brain, Office action dated June 25, 2007.
2 Application Serial No. 77131419 was filed March 14, 2007, based
upon applicant’s assertion of July 1, 2000 as a date of first use
anywhere and in commerce.
Ser. No. 77131419
2
Registration has been refused on the grounds that the
mark is deceptive of a feature or ingredient of the
identified goods under Section 2(a) of the trademark Act
and generic under Section 2(e)(1). 15 U.S.C. §§ 1052(a)
and 1052(e)(1). In the event the mark is not generic,
registration also has been refused on the ground that the
mark is merely descriptive and applicant has not
demonstrated that it has acquired distinctiveness under
Section 2(f). 15 U.S.C. § 1052(f). In addition, the
examining attorney made final his requirement that
applicant amend its identification of goods to indicate
that the goods are formulated for children.
When the refusals were made final, applicant filed an
appeal and two requests for reconsideration. Both requests
for reconsideration were denied and the appeal was resumed.
Applicant and the examining attorney each filed briefs, and
applicant filed a reply brief.
Evidentiary Issue
Before turning to the merits of the appeal, we first
address an evidentiary matter. Applicant submitted for the
first time with its appeal brief evidence identified as
Exhibit A, consisting of copies of eight third-party
registrations for marks including the term “kids” without a
disclaimer. The examining attorney, in his brief, objected
Ser. No. 77131419
3
to the untimely submission of this evidence. Trademark
Rule 2.142(d) provides that the record in an application
should be complete prior to the filing of an appeal. The
Board will ordinarily not consider additional evidence
filed after the appeal is filed. See TBMP § 1207.01 (3d
ed. rev. 2012) and cases cited therein. Accordingly, the
examining attorney’s objection is sustained, and we have
not considered applicant’s untimely evidence in reaching
our decision.
Whether CHILDREN’S DHA is Deceptive
The U.S. Patent and Trademark Office has the initial
burden of putting forth a prima facie case that a trademark
falls within the prohibition of Section 2(a). In re Budge,
857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988) (holding
LOVEE LAMB deceptive for “automotive seat covers”). The
Court of Appeals for the Federal Circuit has articulated
the following test for whether a mark consists of or
comprises deceptive matter:
1. Is the term misdescriptive of the character,
quality, function, composition or use of the goods and/or
services?
2. If so, are prospective purchasers likely to believe
that the description actually describes the goods and/or
services?
Ser. No. 77131419
4
3. If so, is the misdescription likely to affect a
significant portion of the relevant consumers’ decision to
purchase?
Id.
The examining attorney argues that the applicant’s
mark, CHILDREN’S DHA, “misdescribes Applicant’s goods if
they are not formulated for children.”3 Applicant, however,
states that the goods are “designed for use by children”.4
In light of the fact that the goods contain DHA and
are formulated for children, the mark CHILDREN’S DHA simply
cannot misdescribe a “character, quality, function,
composition or use of the goods.” Thus, the first prong of
the deceptiveness test is not met and the refusal to
register the mark under Section 2(a) must be reversed.
Recognizing that the mark may not misdescribe the
goods, the examining attorney alternatively required the
applicant to amend the identification of goods to indicate
that goods are in fact formulated for children.5 The
examining attorney argues that the formulation of the goods
for children is material to the consumer, and therefore,
the identification of goods must be amended to remove any

3 Examining Attorney’s Br. at 8. The examining attorney notes
that applicant has amended its identification of goods to
indicate that the goods contain DHA and thus he focuses on the
misdescriptivness of the term CHILDREN’S.
4 Applicant’s Request for Reconsideration, August 23, 2011, p.2.
5 Examining attorney’s Br. at 10.
Ser. No. 77131419
5
ambiguity between the mark and the goods as required by
TMEP section 1203.02(e)(ii). We agree.
Use of the term CHILDREN’S in the mark informs the
prospective consumer that the goods are formulated for
children. Used in this way, the term CHILDREN’S makes the
product more appealing or desirable and would materially
affect the decision to purchase applicant’s products over
similar nutritional supplements which might not be
formulated specifically for children thereby requiring
consumers to calculate the appropriate dosage themselves.
If the term “children’s” is material to consumers,
amendment of the identification is necessary. See In re
Juleigh Jeans Sportswear Inc., 24 USPQ2d 1694, 1698-99
(TTAB 1992)(materiality to the decision to purchase
includes connotations which increase appeal or desirability
to prospective consumers). Accordingly, the requirement
that applicant amend its identification of goods to
indicate that they are formulated for children is affirmed.
Whether CHILDREN’S DHA 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
Ser. No. 77131419
6
1110, 1111 (Fed. Cir. 1987); In re Merrill Lynch, Pierce,
Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143
(Fed. Cir. 1987).
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. Int’l 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?” Marvin 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 Prods., 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
Ser. No. 77131419
7
of goods: “Nutritional supplements containing DHA.”6 Magic
Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552
(Fed. Cir. 1991) (“[A] proper genericness inquiry focuses
on the description of [goods or] services set forth the in
the [application or] certificate of registration.”).
Applicant agrees with this inasmuch as it argues that the
goods “are commonly known and referred to as they have been
listed in the identification of goods, i.e., ‘nutritional
supplements containing DHA.’”7
The examining attorney argues that the genus should be
defined more narrowly as “nutritional supplements for
children that contain DHA.”8 This is an unnecessarily
narrow genus. It is well settled that a mark may be
refused registration if it is generic for any of the goods
encompassed within the genus. In re Reed Elsevier
Properties, Inc., 77 USPQ2d 1649, 1654 (TTAB 2005)(“[T]he
question of registrability must be determined by
considering any goods or services falling within the
literal scope of an identification.”); See In re Wm. B.
Coleman Co., 93 USPQ2d 2019 (TTAB 2010) (holding the genus
“lighting fixtures” to encompass electric candles). Thus,
the fact that applicant has identified its goods broadly as

6 We analyze this refusal based on the identification without the
addition of “children’s.”
7 Applicant’s Br. at 8
8 Examining attorney’s Br. at 14.
Ser. No. 77131419
8
“nutritional supplements containing DHA” will not permit
registration if CHILDREN’S DHA is generic for any goods
encompassed by this broad terminology, including more-
narrowly defined goods such as nutritional supplements
containing DHA for children. See In re Allen Electric and
Equipment Co., 458 F.2d 1404, 173 USPQ 689, 690 (CCPA
1972)(holding SCANNER merely descriptive of goods broadly
identified as “antennas” which encompassed narrower term,
“scanning antennas”).
Next, we must determine whether the primary
significance of CHILDREN’S DHA is understood by the
relevant public primarily to refer to that genus of goods.
Marvin Ginn, 228 USPQ at 530. The “relevant public” for
goods sold in the marketplace is limited to actual or
potential purchasers of the goods. Magic Wand, 19 USPQ2d
at 1552-53.
Neither the examining attorney nor applicant has
defined the relevant public. Based on the extensive
evidence made of record, the identification of goods, and
the fact that children are unlikely to buy their own
supplements, we find that the relevant public consists of
parents or other adults seeking nutritional supplements
containing DHA for children.
Ser. No. 77131419
9
We now to turn to the second inquiry, the public’s
understanding of the term CHILDREN’S DHA when used in
connection with “nutritional supplements containing DHA.”
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 Lynch, 4 USPQ at
1143. Based on the record discussed below, we find that
there is clear evidence to support a finding that the
relevant public, when it considers CHILDREN’S DHA in
connection with nutritional supplements containing DHA,
readily understands the mark to identify nutritional
supplements containing DHA formulated for children.
The examining attorney first submitted dictionary
definitions of “Children” and “DHA” from the MSN Encarta
dictionary:9
Child (plural children) noun
Definition: 1. young human being: a young human being
between birth and puberty.
DHA noun
Definition: essential fatty acid: a polyunsaturated
essential fatty acid found in cold-water fish and some
algae that has been linked to the reduction of
cardiovascular disease and other health benefits.
Full form docosahexaenoic acid.
Based on the dictionary definitions which establish
that “children’s” is the possessive plural meaning of
“young human beings” and “DHA ” is an “essential fatty

9 Office action of June 25, 2007.
Ser. No. 77131419
10
acid” with health benefits, which is present in the
applicant’s supplements, CHILDREN’S DHA merely refers to an
essential fatty acid for children. Gould, 5 USPQ2d at 1112
(dictionary definitions support genericness refusal); In re
Wm B. Coleman, 93 USPQ2d at 2025 (space between generic
terms does not disqualify proposed mark from Gould
analysis).
The examining attorney also included printouts from a
number of third-party websites showing use of the term
CHILDREN’S DHA in connection with nutritional supplements
for children. Below are sixteen representative samples,
including some images:
• www.chiopractic-sports.com – A web site for a
chiropractic sports institute offering nutritional
supplements including a product identified as Nutri-
West brand “Complete Children’s DHA/EPA10” supplement;11

10 EPA is the abbreviation for eicosapentaenoic acid, another
fatty acid, Office action dated June 25, 2007.
11 Office action dated June 25, 2007.
Ser. No. 77131419
11
• www.vitaminshoppe.com – A web site offering bottles of
Vitamin Shoppe brand “Children’s DHA” in 250 mg
capsules. The term Children’s DHA appears on the
bottle label as well as in the text identifying the
goods;12

• http://shop.deliciousorganics.com – A web site
offering bottles of Animal Parade brand “DHA for Kids”
and stating “No other children’s DHA supplement can
match the ease and convenience of Animal Parade DHA”;13
• http://shopping.aol.com – A web site offering bottles
of Spectrum brand “Children’s DHA chewable softgels.
The term Children’s DHA appears on the bottle label as
well as in the text identifying the goods”;14

• www.suzannes.com – A web site offering bottles of
Carlson for Kids brand Chewable DHA which is further
described as a “Children’s Chewable DHA”;15
• www.nextag.com – A web site offering bottles of Go
Fish brand “Children’s Omega-3 DHA” softgels”;16
• www.pandagen.com - A web site offering bottles of
NuHealth brand “Children’s Hyper DHA/EPA”;17

12 Id.
13 Office action dated April 18, 2008.
14 Id.
15 Office action dated November 18, 2008.
16 Id.
Ser. No. 77131419
12
• www.drugstore.com - A web site offering bottles of
“Kid Wise brand Children’s DHA+ Gummies” and stating
“Kid WiseTM Children’s DHA+ is a great way for kids to
get the healthy DHA they need in delicious fun to eat
gummies.” The term Children’s DHA+ appears on the
box;18

• http://shopping.msn.com – A web site offering a
product called “NSI Omega Fishies for Kids” which is
described as a “Chewable children’s DHA supplement”;19
• www.oceanhealth.com - A web site offering supplements
identified as “Ocean Health’s Children’s DHA.EPA”;20
• www.luckyvitamin.com - A web site offering bottles of
“Dr. Sears Family Approved – Go Fish Brainy Kidz
Children’s Omega-3 DHA”;21
• www.amazon.com - A web site offering Nature’s Way
brand “DHA 4Kids” powder described as a “Children’s
DHA Powder” with a “fruit punch flavor”;22

• www.wisegeek.com – A general information web site
discussing “Children’s DHA” and stating:

17 Id.
18 Id.
19 Office action dated June 11, 2009.
20 Office action dated July 26, 2010.
21 Office action dated November 18, 2008.
22 Office action dated November 18, 2008.
Ser. No. 77131419
13
Children's DHA is a dietary supplement
available specifically for children. . . .
There are a number of DHA and omega-3
supplements available of [sic] the market
today, including children's DHA and DHA for
pregnant women. . . . Children's DHA
supplements can come in many forms, such as
chewable tablets, gummies, or liquids. . . .
When looking for a children's DHA supplement,
experts agree that quality and safety are the
most important factors. Because there are so
many brands available, choosing the right one
can seem like a daunting task to some, and
researching each brand is important. Some
scientists believe that the best children's
DHA supplements are derived from flaxseed oil,
or wild freshwater fish. These typically
contain less contaminates [sic] than other
brands;23
• www.seniorfitness.com – A web site with an article
titled “Children’s DHA, Supplements and Brain
development” discussing the need for DHA for proper
growth and development in children;24
• www.arfworldcongress.com – A web site promoting
nutrition and vitamins. It states: “Another
children’s vitamin product offered by Shaklee is
Mighty Smart, a children’s DHA supplement”;25 and
• An excerpt from a Prescription Alternatives, a book
about prescription drugs by Earl Mindell available on
Google Books which states: “Supplementing diets of
kids with ADHD with fish oil high in DHA may help even
them out and foster better concentration and impulse
control. Chewable children’s DHA supplements are
widely available.”26
The foregoing examples of competitors’ use of the term
“children’s DHA” in the name of their products or used to
describe their products is persuasive evidence that the

23 Office action dated February 28, 2011.
24 Id.
25 Id.
26 Office action dated June 11, 2009.
Ser. No. 77131419
14
relevant consumers perceive the term as generic (e.g.,
Nutri-West Complete Children’s DHA/EPA, Vitamin Shoppe
Children’s DHA, Kid WiseTM Children’s DHA+, and Spectrum
Children’s DHA) and that competitors need to use the term.
Continental Airlines V. United Airlines Inc., 53 USPQ2d
1385, 1395 (TTAB 1999). Furthermore, the articles and book
excerpts about nutrition identify DHA as an important
nutritional supplement for children and demonstrate that
those writing about nutrition recognize CHILDREN’S DHA as
the generic name of DHA supplements formulated for
children.
The examining attorney also has included a number of
web sites selling applicant’s products and which use the
term CHILDREN’S DHA to refer to or name the goods. That
is, applicant’s own online vendors use the term CHILDREN’S
DHA as a generic term to refer to applicant’s supplements.
For example:
• www.vitaminexpress.com – A web site offering
applicant’s Nordic Naturals Children’s DHA supplement
and identifying the goods as follows: “Nordic Naturals
CHILDREN’S DHA is a small, chewable children’s DHA
supplement flavored with strawberry essence.”27 A
printout of the web page appears below.

27 Office action of February 28, 2011.
Ser. No. 77131419
15

• www.nextag.com - A web site offering several of
applicant’s nutritional supplements for children and
describing one of them as “Ultimate Omega Children’s
DHA Formula is a small, natural strawberry flavored
chewable children’s DHA supplement.”28
• www.brainchildnutritionals.com – A web site offering
applicant’s DHA JUNIOR supplement and describing it as
follows: “Nordic Naturals DHA Junior is a small,
strawberry flavored chewable children’s DHA
supplement.”29
The commercial impression conveyed by these web sites
is that Nordic Naturals is the brand of nutritional
supplements and CHILDREN’S DHA merely identifies the type
of supplement, i.e., DHA formulated for children. This use
by applicant’s vendors is consistent with the other web
sites that show that the terms “DHA” and “DHA supplements”

28 Office action of November 18, 2008.
29 Id.
Ser. No. 77131419
16
are used interchangeably to refer to supplements containing
DHA.
Applicant counters that this use of “children’s DHA
supplement” to describe its own products proves nothing
because its mark is CHILDREN’S DHA, not “CHILDREN’S DHA
SUPPLEMENT.” That is, applicant argues, the term
“children’s DHA supplement” in these advertisements “is
being used in its primary, descriptive sense, and not as a
source identifier,” and therefore, it creates a different
commercial impression from applicant’s mark, CHILDREN’S
DHA.30
This argument is unavailing. The fact that the term
“supplement” is not present in applicant's asserted mark is
not sufficient to avoid a genericness refusal. The web
pages made of record show that the terms “DHA” or “DHA
supplement” are used interchangeably to refer to
supplements containing DHA. Applicant’s use of the term
“supplement” after “children’s DHA” in the advertisement
describing its products does not make CHILDREN”S DHA any
less generic inasmuch as the record shows numerous examples
of “children’s DHA,” without the term “supplement,” being
used to refer to supplements containing DHA. See, In re
Abcor Development Corp., Inc. 588 F.2d 811, 200 USPQ 215,

30 Applicant’s Br. at 9.
Ser. No. 77131419
17
219 (CCPA 1978) (Rich, J., concurring) (GASBADGE described
as a shortening of the name “gas monitoring badge”).
This conclusion is supported by three third-party
registrations submitted by the examining attorney which
demonstrate that the term “DHA” is used by itself as
shorthand for nutritional supplements:
• Registration No. 3091572, for the mark BRAINIUMS DHA
for “nutritional supplements.” DHA disclaimed;31
• Registration No. 3448865, for the mark MAX DHA for,
inter alia, “nutritional supplements.” DHA
disclaimed;32 and
• Registration No. 3171458, for the mark FRESH CATCH
KID’S DHA for “nutritional supplements.” KID’S DHA
disclaimed.33
Applicant nevertheless argues that the examining
attorney’s evidence is insufficient to prove that the mark
is generic and points to its own evidence to show that the
mark is not generic. Applicant has submitted excerpts from
“trade journals,” an affidavit from its CEO, affidavits
from industry professionals, and other materials, all
purporting to “establish[] that the relevant public
understands CHILDREN’S DHA to refer not to a general class
of goods, but to Applicant’s specific goods.”34 We find
this evidence unpersuasive.

31 Office action dated June 25, 2007.
32 Id.
33 Office action dated November 18, 2008.
34 Applicant’s Br. at 10.
Ser. No. 77131419
18
First, in many of the trade journals and
advertisements, applicant’s goods are referred to as
“Nordic Naturals Children’s DHA.” While applicant’s
packaging and promotional efforts effectively reinforce the
house mark NORDIC NATURALS as the source of the goods, it
does not on its face create a separate trademark awareness,
or commercial impression, for CHILDREN’S DHA. The
following excerpts from articles submitted by applicant
show how the use of the house mark, Nordic Naturals,
diminishes the probity of these articles:
• www.blogsofhope – “Use Nordic Naturals Children’s DHA
for a Healthy Life! With its ability to enhance
learning and achievement Nordic Naturals Children’s
DHA is great for both kids and adults!”35
• Vitamin Retailer.com – An article awarding prizes to
various vitamins and supplements including: Children’s
Health . . . Second Place (Silver Medal) Nordic
Naturals–Children’s DHA.36
• Taste for Life Magazine – “DELICIOUS FOR THE WHOLE
FAMILY . . . Both kids and adults love the delicious
strawberry flavor of Nordic Naturals Children’s DHA
liquid. . . .”37
• Whole Foods – What’s Selling: Children’s Products
. . . Nordic Natural’s – Children’s DHA.38

It simply isn’t clear from these excerpts that the authors
of these articles recognize “children’s DHA” as a source

35 Applicant’s Response to Office Action dated, May 18, 2009.
36 Id.
37 Applicant’s Response to Office Action dated, May 20, 2009.
38 Id.
Ser. No. 77131419
19
indicator for the goods apart from the house mark, Nordic
Naturals.
More importantly, much of the evidence purporting to
rebut the examining attorney’s evidence of genericness
relies primarily on the claim that applicant was one of the
first manufacturers to offer DHA supplements formulated for
children. The fact that an applicant may be the first and
only user of a merely descriptive or generic designation
does not justify registration if the only significance
conveyed by the term is merely descriptive. See In re
Greenliant Systems Ltd., 97 USPQ2d 1078, 1083 (TTAB 2010);
In re Nat'l Shooting Sports Found., Inc., 219 USPQ 1018
(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).
For example, the declaration from applicant’s CEO,
Joar Opheim, explains that applicant has been promoting its
CHILDREN’S DHA products since 2000 via advertising, live
demonstrations, and distribution of free samples.39 But
nothing in the declaration rebuts the examining attorney’s
showing that the consuming public sees numerous competitors
and media sources also using CHILDREN’S DHA to refer to

39 Applicant Response to Office Action, dated May 18, 2009.
Ser. No. 77131419
20
omega-3 supplements for children from sources other than
applicant.
The form affidavits submitted on May 18, 2009 from
industry employees are similarly unpersuasive.40 The
affidavits are from employees of retail stores selling
applicant’s supplements. Each affidavit includes the
following relevant language:
***
3. I am familiar with an omega-3 fatty
acid supplement called “Children’s DHA” made by
Nordic Naturals, Inc. The “Children’s DHA”
product made by Nordic Naturals, Inc. was the
first omega-3 fatty acid supplement made for
children. For many years, it was the only one.

4. I associate the brand “Children’s DHA”
with omega-3 fatty acids originating
exclusively from Nordic Naturals, Inc.

5. Based on my experience with customers
for dietary supplements, customers associate
the “Children’s DHA” brand with a product
containing omega-3 fatty acids from Nordic fish
oil of the highest quality originating
exclusively from Nordic Naturals, Inc.

6. Recently, other manufacturers have
introduced omega-3 fatty acid supplements,
including some formulated for children. In my
opinion, those other omega-3 fatty acid
supplements are of lesser quality that the
original “Children’s DHA” product from Nordic
Naturals, Inc.

As an initial matter, many of the form affidavits are
missing critical information such as the number of years

40 Id.
Ser. No. 77131419
21
that the affiant has been working in the industry or the
volume of applicant’s product they sell each year. In
addition, the affiants are not end consumers, the
declarations are not in their own words, and many of the
affiants work in stores selling only a small number of
applicant’s product each year, with some stores selling as
few as 40 or 50 bottles each year. These defects limit the
probative value of the affidavits. See Mag Instrument Inc.
v. Brinkmann Corp., 96 USPQ2d 1701, 1723 (TTAB 2010)
(finding sixteen declarations of little persuasive value,
as they were nearly identical in wording and only one of
the declarants was described as an end consumer).
Setting aside the foregoing defects, we find the
affidavits are still unpersuasive because the affiants’
association of “Children’s DHA” solely with applicant
appears to be based more on applicant’s status as an early
provider of DHA supplements rather than on applicant’s
success in distinguishing its CHILDREN’S DHA from the goods
of third parties. In particular, the affidavits state that
“[f]or many years” applicant was the first and only
provider of omega-3 fatty acid supplements made for
children. The affidavits further state that third parties
also are producing DHA supplements formulated for children
which compete with applicant’s “original ‘Children’s DHA’
Ser. No. 77131419
22
product.” The emphasis on the fact that the applicant may
have been the first and only provider of DHA supplements
for children does not compel the conclusion that CHILDREN’S
DHA cannot now be generic. Rather, the affidavits suggest
that applicant is the “original” of several makers of
children’s DHA supplements, and nothing more. Simply put,
these affidavits do not outweigh the other evidence of
record which shows that other manufacturers are using
CHILDREN’S DHA to refer to the same genus of goods.41
We have considered applicant’s additional arguments
but find them all unpersuasive. Accordingly, we find that
CHILDREN’S DHA is the generic name for nutritional
supplements containing DHA inasmuch as this wording
encompasses nutritional supplements containing DHA
formulated for children. Reed Elsevier, 77 USPQ2d at 1654.
Whether CHILDREN’S DHA is Merely Descriptive
Implicit in our holding that the evidence before us
establishes that CHILDREN’S DHA is generic for applicant's
goods is a holding that it is at least merely descriptive
of applicant's goods under Section 2(e)(1). “The generic
name of a thing is in fact the ultimate in
descriptiveness.” Marvin Ginn, 228 USPQ at 530.

41 The additional form declarations submitted on May 20, 2009 have
the same failings. Many are missing critical information or
unduly rely on applicant’s claim of being first to market to
suggest that the proposed mark is not generic.
Ser. No. 77131419
23
Acquired Distinctiveness
For the sake of completeness, in the event the mark is
found to be not generic, we now turn to the issue of
whether applicant's mark has acquired distinctiveness. In
finding that the designation CHILDREN’S DHA is incapable of
being a source identifier for applicant's goods, we have
considered all of the evidence touching on the public
perception of this designation, including the evidence of
acquired distinctiveness. Applicant has the burden to
establish a prima facie case of acquired distinctiveness.
See Yamaha Int’l Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d
1572, 6 USPQ2d 1001, 1006 (Fed. Cir. 1988).
The amount and character of evidence required to
establish acquired distinctiveness depends on the facts of
each case and particularly on the nature of the mark sought
to be registered. See Roux Labs., Inc. v. Clairol Inc.,
427 F.2d 823, 829, 166 USPQ 34, 39 (CCPA 1970). Typically,
more evidence is required where a mark is so highly
descriptive that purchasers seeing the matter in relation
to the named goods or services 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).
Ser. No. 77131419
24
Finally, the ultimate test in determining whether a
designation has acquired distinctiveness is applicant’s
success, rather than its efforts, in educating the public
to associate the proposed mark with a single source. In re
Redken Labs., Inc., 170 USPQ 526, 529 (TTAB 1971)(“It is
necessary to examine the advertising material to determine
how the term is being used therein, what is the commercial
impression created by such use, and what would it mean to
purchasers.).
Applicant asserts that it “has had great commercial
success with its CHILDREN’S DHA brand” and that it “has
enjoyed a substantially exclusive use of the mark for more
than 10 years.”42 Further, applicant alleges that it has
invested “considerable resources” in promoting its
CHILDREN’S DHA mark and “has succeeded in creating in the
minds of consumers an association between the mark
CHILDREN’S DHA and Applicant as the origin of the goods.”43
We do not find applicant’s evidence to be convincing.
First, applicant’s use since 2000, while indicative of a
degree of commercial success, is not conclusive or
persuasive considering the nature of the mark sought to be
registered and the widespread third-party use of CHILDREN’S

42 Applicant’s Br. at 17.
43 Id.
Ser. No. 77131419
25
DHA to generally refer to supplements for children. See 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”).
Second, while applicant has also submitted sales
information, purchase orders for product samples,
advertising expenditures, and samples of advertising, this
evidence does not conclusively establish that consumers
understand CHILDREN’S DHA to refer solely to applicant’s
goods. For example, none of the purchase orders show how
the mark is used on the packaging. There also is no
context for the sales and advertising figures and marketing
materials by which we may determine that the term
CHILDREN’S DHA has come to indicate source in applicant
during the time the mark has been in use.
Moreover, as discussed supra, much of applicant’s
evidence uses CHILDREN’S DHA with applicant’s house mark,
Nordic Naturals, which reduces the probative value of the
evidence. The affidavits and declarations also discussed
supra, also are of limited probative value in showing that
Ser. No. 77131419
26
the consumer recognizes CHILDREN’S DHA in light of the use
of CHILDREN’S DHA by others in the nutritional supplement
field.
In sum, the evidence submitted by applicant suggests
that it has enjoyed some commercial success in marketing
its nutritional supplements under the name CHILDREN’S DHA.
But success in creating and selling a particular product
does not mean the name given to that product serves as a
source identifier. When all of the evidence of record is
viewed as a whole, including the widespread use of the mark
by third parties and the media to refer to products made by
others, applicant’s evidence falls short of demonstrating
that the mark has acquired distinctiveness under Section
2(f).

Decision: The refusal under Section 2(a) of the Trademark
Act of 1946 on the ground that the proposed mark is
deceptive is reversed. The requirement that the
identification of goods be amended is affirmed. The
refusal under Section 2(e)(1) of the Trademark Act on the
ground that the mark is generic is affirmed. The refusal
under Section 2(e)(1) of the Trademark Act on the ground
that the mark is merely descriptive and that the Section
2(f) showing is insufficient is likewise affirmed.