NOW Health Group, Inc.

Trademark Trial and Appeal Board

Jun 14, 2013

No. 85407659 (T.T.A.B. Jun. 14, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
June 14, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re NOW Health Group, Inc.
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Serial No. 85407659
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Mark I. Feldman of DLA Piper LLP (US) for NOW Health Group, Inc.

Alyssa Paladino Steel, Trademark Examining Attorney, Law Office 107 (J. Leslie
Bishop, Managing Attorney).
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Before Holtzman, Ritchie, and Masiello, Administrative Trademark Judges.
Opinion by Masiello, Administrative Trademark Judge:
NOW Health Group, Inc. has applied to register on the Principal Register the
mark set forth below for “Natural sweeteners; Low-calorie natural sweeteners,” in
International Class 30.1

1 Application Serial No. 85407659, filed on August 25, 2011 on the basis of use of the mark
in commerce under Trademark Act § 1(a), 15 U.S.C. § 1051(a), with a claim of first use and
first use in commerce of December, 2010.
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Applicant has disclaimed the exclusive right to use STEVIA and ZERO CALORIE
SWEETENER apart from the mark as shown. The colors blue, white and purple
are claimed as features of the mark.
The trademark examining attorney refused registration under Section 2(e)(1)
of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that applicant’s mark
merely describes the goods. When the refusal was made final, applicant filed two
requests for reconsideration, in the second of which applicant amended the
application to seek registration on the Supplemental Register in the alternative, i.e.,
only in the event that the Board affirms the examining attorney’s refusal under
Section 2(e)(1). Upon review of the second request for reconsideration, the
examining attorney indicated that she would allow registration on the
Supplemental Register if her refusal under Section 2(e) is affirmed. We now
consider applicant’s appeal from that refusal. Applicant and the examining
attorney have filed appeal briefs, and applicant has filed a reply brief.
1. Refusal under Section 2(e)(1).
The question before the Board is whether applicant’s mark, viewed in its
entirety, including the design elements, merely describes the goods identified in the
application. “A term is merely descriptive if it immediately conveys knowledge of a
quality, feature, function, or characteristic of the goods or services with which it is
used." In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987).
The descriptiveness of the wording of the mark is established by the
dictionary definitions made of record by the examining attorney, setting forth the
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meanings of “better,” “stevia,” “zero,” “calorie” and “sweetener.”2 Applicant, in its
brief, does not argue the issue of whether the wording of the mark is merely
descriptive, stating, “Applicant neither admits nor disputes whether the words
within its Mark are descriptive because Applicant’s design alone creates a distinct
commercial impression.”3 There is little question that the wording of the mark is
merely descriptive within the meaning of Section 2(e)(1). The word “stevia” is
defined as “a South American perennial shrub” and “a noncaloric, powdered
sweetener made from glycoside extracts of the leaves of this shrub.”4 That the
addition of the laudatory term BETTER does not render the mark registrable is
well established. “Better” is a comparative adjective meaning “of superior quality or
excellence” and “of superior suitability, … desirability.”5 Terms that merely
attribute quality or excellence to goods or services are merely descriptive under
Section 2(e)(1). See In re Best Software Inc., 58 USPQ2d 1314 (TTAB 2001) (BEST
and PREMIER); In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1052 (TTAB
2002) (SUPER); In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir.
2001) (ULTIMATE); Target Brands Inc. v. Hughes, 85 USPQ2d 1676, 1680 (TTAB
2007) (ULTIMATE); In re Dos Padres Inc., 49 USPQ2d 1860 (TTAB 1998)
(SUPREME). The wording ZERO CALORIE SWEETENER, which applicant has

2 Office action dated December 15, 2011.
3 Applicant’s brief at 1.
4 Definition from Dictionary.com, submitted with the Office action of December 15, 2011.
5 Definition from Dictionary.infoplease.com, submitted with the Office action of December
15, 2011.
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disclaimed, merely provides information regarding the nature and characteristics of
the goods.
We turn then, to applicant’s argument that the design elements of its mark
are sufficiently distinctive to render the mark registrable. Applicant argues that its
mark has “a high level of stylization with distinctive, thick, bubbly letters which are
distinctively colored and shaded in varying shades of light to darker blue.
Furthermore, the Mark’s text is surrounded in thick white outlines and thinner
blue outlines with various design elements such as shadowing and drop-down
boxes.6 Applicant points out the “gentle upward curve” of the lettering in the mark;
that the color gradient “provide[s] a three-dimensional gel-like appearance”; and
that the outlines and shadows “create separation of the letters (‘positive space’)
from their surroundings (‘negative space’).7 In addition to these features, applicant
points out:
-- the stacking of the words;
-- the banner-like drop-down box;
-- the distinction in style between the small, white, “edgy” lettering of ZERO
CALORIE SWEETENER and the differently stylized, larger, blue lettering of
BETTER STEVIA;
-- the purple shadow of differing widths beneath the drop-down box and
elsewhere in the mark, which creates a three-dimensional effect;8
-- the “hierarchy and scale” among the words of the mark (STEVIA being in
larger type than BETTER, and both being in substantially larger type than
the remainder of the wording);
-- the “stamp-like appearance” of the mark created by the overall outline;9
-- the “repetition” of the arch of the larger words in the arch of the banner;

6 Applicant’s brief at 5.
7 Id.
8 Id. at 7.
9 Id. at 9.
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-- the fact that the banner is “pulled up” behind the word STEVIA, causing this
word to “pop” at the viewer;10
-- the highly unusual shape that is defined by the bottoms of the letters in
BETTER and the tops of the letters of STEVIA:11

“When words which are merely descriptive, and hence unregistrable, are
presented in a distinctive design, the design may render the mark as a whole
registrable, provided that the words are disclaimed….” In re Clutter Control Inc.,
231 USPQ 588, 589 (TTAB 1986). However, “It is settled that a display of
descriptive or otherwise unregistrable matter is not registrable on the Principal
Register unless the design features of the asserted mark create an impression on
the purchasers separate and apart from the impression made by the words
themselves, [absent a showing of acquired distinctiveness].” In re Guilford Mills
Inc., 33 USPQ2d 1042, 1043 (TTAB 1994).
There is no question that many choices went into the design of applicant’s
mark. Applicant has ably analyzed and pointed out the many graphic devices that
are present in the mark. However, these devices are conventional typographical
devices whose primary purpose is to increase the legibility and coherence of the
words and to induce viewers to properly navigate and comprehend the words. When
well deployed, such typographical devices do not draw attention to themselves so as

10 Id. at 11.
11 Id. at 10.
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to create and deliver a message or impression separate from that of the wording of
the mark; rather, they draw attention to the wording and otherwise do not distract
from the message of the words. The stacking of words, as seen in applicant’s mark,
is a very common typographical device that is merely an extension of the western
convention of reading text from top to bottom. The hierarchized lettering aids the
viewer’s comprehension of the words, drawing attention to the large wording
BETTER STEVIA and giving subordinate importance to the remainder of the
wording, which appears in much smaller lettering. In other words, the graphic
elements of applicant’s mark serve the wording, without creating a separate
impression that would be noted by customers as an indicator of source. Customers
would not rely upon the outlining or the subtle shadowing of the letters as a sign
that the goods originate with applicant, because those graphic elements are in
widespread use in the commercial world. Neither is the blue-and-white coloring of
the mark, with subtle purplish gray shadows, inherently distinctive. While it is
true that the unusual shape appearing between the words BETTER and STEVIA
could function as a distinctive trademark if it were used in isolation, when viewed
in the context of the mark as a whole it is not likely to be noticed by viewers. Its
real purpose in the mark is to improve the legibility of the letters of BETTER
STEVIA.
We have considered applicant’s mark in its entirety, including the combined
impact of all of the graphic elements apparent to us and pointed out by applicant.
We find that the design elements of the mark are not sufficient to render applicant’s
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mark inherently distinctive. Accordingly, we agree with the examining attorney
that applicant’s mark is merely descriptive within the meaning of Section 2(e)(1).
As noted above, applicant has requested, in the alternative, registration on
the Supplemental Register, and the examining attorney has expressed no objection
to such registration.
Decision: The refusal to register the mark on the Principal Register on
grounds that it is merely descriptive of applicant’s goods within the meaning of
Trademark Act Section 2(e)(1) is affirmed.
Applicant’s amendment of the application to seek registration on the
Supplemental Register is noted and will be entered into the record, whereupon the
application will be forwarded for registration on the Supplemental Register.