Nutra-ceutical Corporation

Trademark Trial and Appeal Board

Mar 13, 2006

No. 78975072 (T.T.A.B. Mar. 13, 2006)

Mailed:
March 13, 2006
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Nutraceutical Corporation
________

Serial No. 78975072
_______

Andrea Anderson and Scott S. Havlick of Holland & Hart LLP
for Nutraceutical Corporation.

Andrea Koyner Nadelman, Trademark Examining Attorney, Law
Office 110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Walters, Bucher and Kuhlke, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Nutraceutical Corporation seeks registration on the
Supplemental Register of the term FRESH ORGANICS for goods
and services identified in the application, as amended, as
follows:
Fresh fruits and vegetables; living natural
plants and live flowers; unprocessed
cereals; unprocessed herbs; unprocessed
beans; unprocessed rice; unprocessed grains
for eating; pet food; unpopped popcorn; bulk
fresh nuts; raw nuts” in International Class
31; and

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 78975072
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Retail health food store services; retail
bakery shops” in International Class 35.1

This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this designation based upon the ground that this
term is incapable of functioning as a trademark for many of
the International Class 31 goods as well as the retail
health food store services, set forth above. Section 23 of
the Trademark Act, 15 U.S.C. § 1091.
Applicant and the Trademark Examining Attorney have
fully briefed the case, but applicant did not request an
oral hearing. We affirm the refusal to register.
As a preliminary matter, we note that the Trademark
Examining Attorney has objected to a declaration signed by
Leslie M. Brown, Jr., which was attached to applicant’s

1 The underlying application on the Principal Register
(assigned Application Serial No. 78108722) was filed on February
14, 2002 based upon applicant’s allegation of a bona fide
intention to use the mark in commerce. The application included
goods and services in International Classes 5, 29, 30, 31, 32, 33
and 35. In March 2003, at applicant’s request, the goods in
International Class 31 and the services in International Class 35
were divided from the original application and were placed into a
divisional application, Serial No. 78975072, which is the subject
of this appeal. At the same time, applicant submitted an
Amendment to Allege Use (AAU) in connection with the divisional
application and amended the application to seek registration on
the Supplemental Register. The AAU was supported by specimens
consisting of photographs of a shopping basket and the side of a
delivery truck, and the AAU alleged first use anywhere and use in
commerce in both classes of goods and services at least as early
as August 31, 2002.
Serial No. 78975072
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appeal brief. She argues that this declaration represents
an untimely attempt by applicant to qualify or negate one
of its earlier responses.2 By contrast, applicant argues
that the Board should consider this declaration because it
will result in no prejudice to the position of Trademark
Examining Attorney, it will assist the Board in its
determination on the issue of genericness, and allowing it
into the record is consistent with the Board’s more
permissive stance with regard to evidentiary matters during
ex parte appeals. See TBMP § 1208.
We agree with the Trademark Examining Attorney, and
hence, have not considered this declaration.3 The record in
the application is complete prior to the filing of an

2 Responding to specific questions posed by the Trademark
Examining Attorney, in its communication of August 26, 2004,
applicant offered the following statements:
“1. Some, but not all, of the products supplied by
Applicant in its retail health food stores are organic
products.
“2. Yes, Applicant features fresh produce in its retail
health food stores.
…
“4. Yes, some of the products identified in International
class 31 are organic.”
According to the Trademark Examining Attorney, these responses
confirm that applicant’s services feature the sale of “fresh
organics.”
3 We hasten to add that even if we had considered this
declaration, it would not have changed the outcome herein. The
issue of the genericness of the applied-for term in connection
with retail health food store services would not be decided
differently were we to find that only 30% of the gross revenues
from applicant’s stores (rather than some other, indeterminate
portion) is attributable to the sale of fresh fruits and
vegetables.
Serial No. 78975072
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appeal, and generally the Trademark Trial and Appeal Board
will not consider additional evidence filed with the Board
by the appellant or by the Trademark Examining Attorney
after the appeal is filed. See 37 C.F.R. § 2.142(2)(d).
We also note at the outset that the Trademark
Examining Attorney has conceded that the applied-for term
is nothing more than merely descriptive for certain of the
listed goods and services, namely the “living natural
plants and live flowers,” “pet food” and “retail bakery
shops” and specifically withdrew the refusal as to those
goods and services. Hence, irrespective of the outcome of
our decision on the question of the genericness of the
applied-for term when used in connection with the majority
of the listed goods and services, the term FRESH ORGANICS
will issue, in due course, as a registration on the
Supplemental Register in connection with “living natural
plants and live flowers,” “pet food” and “retail bakery
shops.”
Summary of the arguments
Applicant argues that: the limited evidence in this
record is insufficient to sustain the Trademark Examining
Attorney’s heavy burden of proving that consumers use and
understand the term “Fresh Organics” as a generic name for
Serial No. 78975072
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fresh fruits and vegetables rather than as a merely
descriptive adjective for such goods; the only potentially
relevant evidence of generic use of the term “fresh
organics” relates solely to fresh fruits and vegetables,
and not to any other type of food products; and that the
refusal with respect to the retail health food stores
services should be reversed inasmuch as fresh fruits and
vegetables constitute only a small percentage of the
products offered in applicant’s retail stores.
By contrast, the Trademark Examining Attorney contends
that a wide variety of products can be considered “fresh
organics” if they contain certain features, namely that
they are fresh, rather than processed foods, and that they
are organically grown. She contends that the record shows
this term to be sufficiently narrow and comprehensible to
delineate a class or genus of goods and services. She
takes the position that whenever the combination of two
generic terms is such that each term retains its generic
significance, then the combined expression is generic, and
thus, incapable of denoting source. She concluded that
when these two words are combined, they create a unitary
term that is recognized in the food industry as a
particular genus of goods and retail services. She
Serial No. 78975072
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disagrees with applicant’s criticisms of the record,
arguing that there is clear and compelling evidence in the
record demonstrating that the public understands “fresh
organics” primarily to identify a genus or class of the
goods and services identified in the instant application.
The law of genericness
Applicant is correct in pointing out that the burden
on the Trademark Examining Attorney to demonstrate
genericness is quite high. The critical issue in
genericness cases is whether members of the relevant public
principally use or understand the term sought to be
registered to refer to the category or class of goods and
services in question. In re Recorded Books, Inc.,
42 USPQ2d 1275 (TTAB 1997); and In re Women’s Publishing
Co. Inc., 23 USPQ2d 1876, 1877 (TTAB 1992). Our primary
reviewing court has set forth a two-step inquiry to
determine whether a mark is generic: first, what is the
genus (category or class) 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
(category or class) of goods or services? H. Marvin Ginn
Corporation v. International Association of Fire Chiefs,
Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986).
Serial No. 78975072
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With respect to genericness, the Office has the burden of
proving genericness by “clear evidence” thereof. In re
Merrill Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d
1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987).
To be found generic, a term does not have to
specifically name a narrow category as long as the goods or
services are encompassed within the broad term. For
example, the Board held that the term ANALOG DEVICES named a
category or class of devices having analog capabilities and
was generic for a number of products such as operational
amplifiers, power supplies, converters, transducers,
switches, etc., some of which were in the nature of analog
devices. See In re Analog Devices, Inc., 6 USPQ2d 1808
(TTAB 1988), aff’d in a decision marked non-citable as
precedent, 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989).
In response to applicant’s argument that the term ANALOG
DEVICES is a nebulous and vague one, the Board stated, in In
re Analog Devices at 1810:
However, while we readily concede that the
category of products which the term “analog
devices” names encompasses a wide range of
products in a variety of fields, we do not
believe this fact enables such a term to be
exclusively appropriated by an entity for
products, some of which fall within that
category of goods. For example, while terms
such as “digital devices,” “computer
Serial No. 78975072
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hardware,” “computer software,” and
“electronic devices,” just to name a few,
may be broad and even nebulous terms,
nevertheless, these terms may not be
exclusively appropriated but must be left
for all to use in their ordinary generic
sense.

ANALYSIS
We turn then to an analysis of how the law on
genericness applies to the facts of this case. Initially,
we find that the relevant public for these goods and
services would be ordinary consumers, as there is no
evidence that the consumers of applicant’s goods and
services constitute a more limited group.
The Trademark Examining Attorney’s evidence
In support of her position of genericness for the
affected goods and services,4 the Trademark Examining
Attorney referenced dictionary excerpts for each of these
words.5 In the Office action of February 2, 2003, the

4 That is, all the listed goods and services other than
“living natural plants and live flowers,” “pet foods” and “retail
bakery shops.”
5 “Fresh” is defined, inter alia, as “adjective … 3.
Recently made, produced or harvested; not stale or spoiled; …”;
and “organic” is defined, inter alia, as, “adjective … 3.a.
Using or produced with fertilizers of animals or vegetable
matter, using no synthetic fertilizers or pesticides: organic
gardening; organic vegetables. b. Free from chemical injections
or additives, such as antibiotics or hormones: organic chicken.
c. Simple, healthful, and close to nature: an organic
Serial No. 78975072
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Trademark Examining Attorney also provided evidence of
prior disclaimer practice concerning the words “Fresh” and
“Organics” as seen in composite marks in third-party
registrations on the principal register, on the principal
register under Section 2(f) and on the supplemental
register of the United States Patent & Trademark Office,
which registrations cover food products and services
similar to those of applicant. She also submitted excerpts
from the LEXIS/NEXIS database and from the Internet.
According to the Trademark Examining Attorney, a
search on January 31, 2003 of the Lexis/Nexis database for
the term “FRESH ORGANICS” resulted in 2,187 hits. Several
newspaper excerpts she submitted for the record used the
term “fresh organics”:
HEADLINE: Organics 101
“Among 30 or so fresh organics, there were
nine individual peaches ($1.26 a pound),
four peppers ($2.04 a pound), and four
cucumbers ($1.77 a pound). Organic red
potatoes (97 cents a pound) and onions
($1.10 a pound for yellow; $1.13 for red)
are sold from cartons.

“Prices for organics often were more than
double those of the conventional crops, in

lifestyle. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(1992).
Serial No. 78975072
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part because the conventional items were so
inexpensive.”6

HEADLINE: “Beetz in tha Hood: Nonprofit peddles cheap,
fresh organics where supermarkets fear to tread.”7

Several of the stories excerpted by the Trademark
Examining Attorney but not reproduced herein also refer to
applicant and its organic foods markets.
The majority of the excerpts from the LEXIS/NEXIS
database introduced into the record with the Trademark
Examining Attorney’s Office actions of February 3, 2003,
February 25, 2004, and October 18, 2004, use the term
“fresh organic” (singular) as a modifier, in expressions
such as “fresh organic produce” (Akron Beacon Journal,
Philadelphia Inquirer, The Providence (RI) Journal-
Bulletin), “fresh organic products” (Albuquerque Journal
(New Mexico)), “fresh organic food” (The Seattle Times,
Bangor Daily News, The Columbian (Vancouver, Washington)),
“fresh organic food market” (Press Enterprise (Riverside,
CA)), “fresh organic items” (Supermarket News, The
Columbian (Vancouver, Washington)), “fresh organic fruits
and vegetables” (The Californian (Salinas, CA), “fresh

6 Philadelphia Inquirer, September 13, 2004, article by
Marilynn Marter.
7 East Bay Express, Mar 12, 2003, article by Jonathan
Kauffman, discussing small food stands set up outside schoolyards
in South and West Berkeley selling at cost “beautiful organic
edibles.”
Serial No. 78975072
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organic vegetables” (The Boston Herald), “fresh organic
herbs” (The New York Times), “fresh organic broccoli” (San
Antonio Express News), “fresh organic greens, onions, sweet
potatoes, leeks, and herbs” (The Atlanta Journal-
Constitution), “the FDA’s fresh organic labeling laws”
(Rocky Mountain News), etc.
The excerpts the Trademark Examining Attorney placed
into the record from her Internet searches demonstrate use
of the phrase “fresh organics,” where “organics” is a noun
modified by “fresh,” including the following:
SOUTHWEST MICHIGAN
“Going Organic: Nutritional Choices for
Kids,” by Elizabeth K. Johnson, appearing in
September/October 1998 issue of Great Lakes
Family Magazine:
…
Benefits of organics

The first year for a child is so important
nutritionally, and I believe in eating as much
organic food as possible," said Susan Stuart,
a registered nurse and certified health
education specialist and wellness consultant
at The Fetzer Institute in Kalamazoo. She
advocates feeding children of all ages organic
foods as often as possible. In cases where
fresh organics aren’t available, Stuart said
that by thoroughly washing and scrubbing
fruits and vegetables, most of the outside
waxy residue and some of the pesticides can be
removed ….
http://www.glfamily.com/html/so-98/so-98-expect.html
Serial No. 78975072
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NEW YORK CITY
Candle Café has wonderful food CD
and service. Has delicious, New York, NY
fresh organics from local farmers. USA
Cozy warm atmosphere.
http://www.vegdining.com/GetRest.cfm?rk=US-NY-NY-CANDL
SOUTH FLORIDA
Glaser Organic Farms: South Florida’s own
certified organic grower, shipper, and
wholesaler, specializing in dehydrated and
organic raw and living foods
… You can select from our retail catalog and from
our large variety of our fresh organics produce …
http://www.thinkholistic.com/comdir/cditem.cfm?NID=59
FLORIDA
James Jul 27 2001
Glad to see Global Organics listed!! They are
a truly amazing company. I used to be a
produce buyer for a large Florida Health Food
Chain. They were honest, knowledgeable,
personable and ALWAYS took the extra step.
Once, I told them that my son was a freshmen
in college in Georgia and missed the fresh
organics I would bring home. Would you
believe they set up regular “care” packages
for my son (I don’t believe they normally
offer this service)? Global Organics is run
by its owners Mitch and Dennis. Everyone
needs to get their organics from them ….

http://www.greenpeople.org/viewcoms.cfm?memid=2860
WASHINGTON STATE
The Wild Iris Inn …
Savory delights extend to Le Jardin, the Inn’s
intimate and elegant dining room where chef Drew
Jackson appeases the most discerning palate with
his fresh bounty of Northwest fare. He attributes
his culinary magic to the use of fresh organics
that he handpicks from neighboring farms.…
http://honeymoons.about.com/cs/washington/a/washington_2.htm
Serial No. 78975072
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SAN FRANCISCO BAY AREA
Radical History by Carly Earnshaw
What he told me about the Black Panthers held true
for many groups involved in 1960s and ’70s Bay Area
food politics. The buying clubs, consumer co-ops,
and food giveaways provided people access to
healthy and affordable food, which was a political
necessity in an era when grocery stores preferred
to stock Cheese Whiz and TV dinners instead of tofu
and fresh organics. But people invested in the
food projects also wanted to strengthen their
communities and set the stage for revolution.
http://www.bestofthebay.com/2003/e_classics.php
VANCOUVER, BRITISH COLUMBIA, CANADA
“Geo [Green Earth Organics] will be providing
organic fruits and veggies to all the actors
in ‘This City Of Angels’; as well as provide
fresh organics for the opening night party…."

http://www.greenearthorganics.com/
VANCOUVER AND TORONTO, CANADA
From the Pacific to the Maritimes, Pro
Organics is Canada’s largest distributor of
fresh organics foods, shipping daily from
distribution centers in Vancouver and Toronto.
Pro Organics represents over 500 certified
organic farms worldwide, from Canada to the
USA, Central and South America, Mexico,
Europe, Australia and New Zealand. It serves
over 1,000 accounts, from supermarket chains
to independent retailers, natural food stores,
home delivery companies, co-operatives and
foodservice providers.

http://www.vancitycapital.com/clients/commercial/proorganics/
VANCOUVER ISLAND, BRITISH COLUMBIA, CANADA
Green House Market … offers fresh fish market,
sushi and fresh organics.
http://www.uclueletinfo.com/
Serial No. 78975072
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PRINCE EDWARD COUNTY, ONTARIO, CANADA
What to do in October: TASTE! A celebration of
regional cuisine
Come and enjoy sample-sized portions of delicious
gourmet dishes, wines, beers and ciders, fresh
organics and mouthwatering sweets all prepared from
our regional produce.
http://www.pec.on.ca/
CARIBBEAN COAST OF MEXICO
The Centro Ecológical Akumal, “Cooperativa Orgánica
is going into gear with increased fresh organics,
more than 1,000 kilos per week …."
http://ceakumal.org/

We note that the excerpts of the term FRESH ORGANIC(S)
from the Internet and the NEXIS database that the Trademark
Examining Attorney Examining Attorney placed into the
record are a mixed bag. As noted by applicant, some of the
evidence placed into the record by the Trademark Examining
Attorney does not point unquestionably toward genericness.
Several of the pluralized examples of the combined term
appear to be references to applicant. A meaningful
percentage of the occurrences of the term “Fresh Organics”
on the Internet would seem to represent English language
sites reflecting usages outside the United States, for
example, in the UK, New Zealand, Australia, and
particularly, in Canada. Apart from the issues surrounding
the probative value of foreign websites, these do serve to
Serial No. 78975072
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show that the usage of this term seems fairly widespread
among English-speaking countries. In context,
substantially all the U.S. and foreign references have
exactly the same connotation – namely, healthy foods not
conventionally grown and not processed.
“Fresh Organics” used on foreign websites
One of applicant’s arguments against the Trademark
Examining Attorney’s evidence of genericness is that there
is no probative value in any of these latter uses (shown
above) drawn from foreign websites. See In re Organik
Techs, Inc., 41 USPQ2d 1690, 1692 at n.3 (TTAB 1997)
[refusing to consider excerpts from foreign news sources
absent evidence of circulation or readership in the United
States]. Applicant argues that these obscure websites are
“discrete, foreign Internet websites originating in Canada,
Mexico, Australia, the United Kingdom and New Zealand,” and
that the record contains no evidence that any consumer in
the United States has ever viewed any of these sites, or
that the information contained on these sites was
“broadcast” and picked up by any U.S.-based websites that
might be viewed by U.S. consumers. See In re Cell
Therapeutics, 67 USPQ 2d 1795 (TTAB 2003) [Board considered
newswire stories as evidence of genericness, reasoning that
Serial No. 78975072
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these stories are often “broadcast” on the Internet, and
that many U.S. consumers consult Internet-based news media
on a daily basis].
The Trademark Examining Attorney argues that:
… the Internet has created a global
community, and consumers in the United
States have access to websites created
nearly everywhere on the planet. For this
reason, evidence of use of a term in an
English language website clearly illustrates
the significance of a term to United States
consumers. Computer users will not
summarily dismiss a website simply because
the top-level domain does not reference an
[Internet] address in the United States.

As noted by the Trademark Examining Attorney, in some
circumstances, web pages posted abroad may be considered
probative evidence on 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 website in the UK held
admissible]. However, applicant argues that in this case,
the foreign websites are of no probative value because
there is no evidence that U.S. consumers of groceries
Serial No. 78975072
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regularly consult any foreign websites in making their
grocery purchasing decisions.
We find that average consumers in the United States
may well link to foreign websites for informational
purposes when researching products they intend to purchase,
as was the case in In re King Koil Licensing Company, Inc.,
___ USPQ2d ___ (Serial No. 76565486, TTAB March 2, 2006).
However, while we do not discount entirely the impact of
the foreign websites in this case, we find them of much
more limited probative value than was true in the Remacle
case because the foreign websites excerpted herein are
primarily articles of local interest about the availability
of fresh, organic food items rather than informational
resources for the general consumer researching organic
food.
Applicant also argues that the Trademark Examining
Attorney cannot assume that English language terms are
uniformly understood “across the continents of Africa,
Australia, Europe, and North America, as the English
language has developed differently in each English-speaking
country.” Inasmuch as the Trademark Examining Attorney
placed copies of these foreign websites into the record
during examination, applicant had an opportunity to
Serial No. 78975072
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demonstrate, if indeed it is the case, that the combined
term, “Fresh Organics,” or the individual words, have
different meanings in foreign countries than the plain
English language meaning we would attribute to them in the
United States. That was not done.
Categories of Goods and Services
The evidence submitted by the Trademark Examining
Attorney supports the conclusion that the principal
category of goods involved herein is organic foods and the
principal category of services involved herein is organic
food markets. Further, while clearly not all fresh foods
are organic foods and not all organic foods are fresh
(e.g., packaged foods containing organic ingredients), the
evidence establishes that there is, nonetheless,
significant overlap between “fresh” foods and “organic”
foods such that there is a sub-category of organic foods
that consists of fresh, organic foods, and a sub-category
of organic food market services that consists of food
markets specializing in fresh, organic foods. Applicant’s
own identification of goods supports the conclusion that
“fresh” has a readily understood meaning in connection with
organic foods inasmuch as applicant uses phrases like
Serial No. 78975072
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“fresh fruits and vegetables” and “fresh nuts,” which would
encompass organic fruits, vegetables and nuts.
FRESH ORGANICS as understood by the relevant public
Turning to the second part of the test for
genericness, we weigh carefully the evidence submitted by
both applicant and by the Trademark Examining Attorney. As
stated previously, the genus of the involved goods and
services is fresh, organic foods, and food markets
specializing in fresh, organic foods, respectively.
Starting with the dictionary definitions of the
individual terms, we are not persuaded by applicant’s
arguments that each of these words has other definitions
unrelated to its goods and/or services, as we must consider
the mark in the context of the goods and it is only the
definitions of these terms discussed above that are
relevant to our analysis. The word “fresh” in the context
of “fresh foods,” and the word “organic” in the context of
“organic foods” are both generic adjectives. Each term
directly names a most important aspect of applicant’s goods
and services. See In re Central Sprinkler Co., 49 USPQ2d
1194 (TTAB 1998). Then considering the relevant
definitions of “fresh” and “organic” as they pertain to
applicant’s goods and services, when combined, the
Serial No. 78975072
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individual words retain their dictionary meanings and we
find nothing incongruous in applicant’s combination of
these common words in the applied-for term. Applicant has
done no more than combine terms that are individually
generic in relation to its goods and services. Thus, the
composite designation is likewise generic. See In re Gould
Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110 (Fed. Cir. 1987).
In fact, if one is referring to non-processed food
items grown organically, it is difficult to imagine a more
succinct expression to describe such goods and services
than “fresh, organic foods,” or simply “fresh organics.”
Based on these dictionary definitions and our common
parlance of the English language, we find that the relevant
purchasing public would readily understand that “Fresh
Organics” indicates that a variety of fresh, unprocessed
and/or raw food items have been grown organically. Thus,
we conclude that the term FRESH ORGANICS is incapable of
functioning as a trademark or service mark in connection
with fresh, organic foods.
The majority of generic uses in this record of the
term “Fresh Organics” appear to identify goods. Other than
the frequent uses of the word “Organics” within composite
trade names, there are admittedly fewer examples of
Serial No. 78975072
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occasions where the combined term “Fresh Organics” stands
alone as the name for retail store services. However, in
any case where a term is deemed to be generic for a class
of products, it is equally generic when used in connection
with the services of a retailer of such:
These third-party registrations, article
excerpts and web pages show that “blinds and
drapery” is used as the name or designation
for a class of products used in homes and
businesses and is the term used by many
businesses to indicate that they make or
sell blinds, drapery and other “window
treatments.” Both types of evidence, i.e.,
the evidence that shows there is a class of
products known as “blinds and drapery,” and
the evidence that shows businesses refer to
themselves as, or are referred to by others
as, a “blinds and drapery” business, are
probative evidence of the genericness of
BLINDSANDDRAPERY.COM for applicant’s
services. See, e.g., In re Half Price Books,
Records, Magazines, Incorporated, 225 USPQ
219, 221 (TTAB 1984) (generic terms for
products equally generic for a retailer of
such products).

In re Eddie Z’s Blinds and Drapery Inc., 74 USPQ2d 1037,
1041 (TTAB 2005) [BLINDSANDDRAPERY.COM is a generic term
for selling of blinds, draperies, and related items].
Many times the Internet and NEXIS excerpts reflected
usage of “fresh organic” as an adjectival term modifying
another noun. Accordingly, in its reply brief, applicant
draws a sharp line between the many appearances of the term
“fresh organic” (in the singular form) as comprising “a
Serial No. 78975072
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descriptive adjective, rather than a generic noun.”
However, we note initially that when conducting a
genericness inquiry under the Lanham Act, determining the
part of speech of a word is not the end of the query.8 It
is well-settled that generic terms may function as
adjectives or as nouns. Secondly, we agree with the
position of the Trademark Examining Attorney that
applicant’s adaptation from “fresh organic ______” to
“fresh organics” moves the expression undeniably in the
direction of a generic noun. Specifically, the Trademark
Examining Attorney argues that this “absence of a letter
‘S’” in these usages certainly does not undermine the
genericness of applicant’s mark. “In fact,” she argues,
“the addition of the letter ‘S’ creates a type of goods [a
noun], namely ‘organics’” rather than merely identifying a
feature of the goods in an adjectival form. Similarly, we
find it most relevant that the term “fresh organic”
frequently appears as an adjective modifying generic nouns
such as “food,” “vegetables,” “products,” “produce,” etc.
As applied to any food products edible by humans,

8 2 J.T. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION,
Section 12:10 (4th ed. 1997) [“A rule of thumb sometimes forwarded
as distinguishing a generic name from a descriptive term is that
generic names are nouns and descriptive terms are adjectives.
However, this ‘part of speech’ test does not accurately describe
the case law results.”].
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expressions such as “organic vegetables” or “fresh, organic
food” will be shortened in the common parlance to simply
“organics” or “fresh organics” without losing any meaning.
Otherwise, the logical result of applicant’s argument would
seem to be that even if it is clear, for example, that an
expression like “low carb foods” represents a category
within the healthy foods market, one manufacturer should
still be able to claim the term “low carbs” as its source
identifier, or if “functional foods” is a category within
the healthy foods market, one manufacturer should still be
able to claim the term “functionals.” We find this
counterintuitive in practice and wrong under the Lanham
Act.
In conclusion, we find that there is a category of
fresh, organic foods, often marketed through food markets
specializing in healthy foods, where a meaningful portion
of the products are neither processed nor conventionally
grown, and that consumers use and understand the term
“Fresh Organics” as a generic name for this category of
goods and services.
Decision: The refusal to register on the ground that
the applied-for mark is generic in connection with “fresh
fruits and vegetables; unprocessed cereals; unprocessed
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herbs; unprocessed beans; unprocessed rice; unprocessed
grains for eating; unpopped popcorn; bulk fresh nuts; raw
nuts, and retail health food store services” is hereby
affirmed. Nonetheless, a registration will issue on the
Supplemental Register for only the following goods:
“living natural plants and live flowers, and pet food” in
International Class 31, and for “retail bakery shops” in
International Class 35.