Omega Alpha Pharmaceuticals Inc.

Trademark Trial and Appeal Board

Mar 26, 2013

No. 77486429 (T.T.A.B. Mar. 26, 2013)

THIS OPINION IS A NOT
PRECEDENT OF THE TTAB

Oral Hearing: February 26, 2013 Mailed: March 26, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Omega Alpha Pharmaceuticals Inc.
_____

Serial Nos. 77486429 and 774864411
_____

Scott Hemingway of Hemingway & Hansen LLP for Omega Alpha Pharmaceuticals
Inc.

Darryl Spruill, Trademark Examining Attorney, Law Office 112 (Angela Wilson,
Managing Attorney)
_____

Before Kuhlke, Bergsman and Shaw, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Applicant, Omega Alpha Pharmaceuticals Inc. filed an application to register
on the Principal Register the marks 2 and OMEGA ALPHA3 in standard
characters for a variety of nutritional/herbal supplements in International Class 5.

1 These proceedings were consolidated for purposes of oral hearing due to the similarities in
issues and we issue our determination in a single decision.

2 Application Serial No. 77486429, filed on May 29, 2008, based on a foreign registration
under Section 44 of the Trademark Act, 15 U.S.C. § 1126, claiming prior Principal Reg. No.
3111385 for the mark OMEGA ALPHA PHARMACEUTICALS (pharmaceuticals
disclaimed) for similar goods.

Serial Nos. 77486429; 77486441

2

Registration has been refused under Section 2(a) of the Trademark Act, 15 U.S.C.
§1052(a), on the ground that applicant’s mark is deceptive. When the refusals were
made final, applicant appealed, briefs have been filed, and an oral hearing was held
on February 26, 2013.
Our determination under Trademark Act § 2(a) is based upon an analysis of
whether all three of the following criteria are met:
(1) The applied-for mark consists of or contains a term that
misdescribes the character, quality, function, composition, or use
of the goods and/or services.

(2) Prospective purchasers are likely to believe that the
misdescription actually describes the goods and/or services.

(3) The misdescription is likely to affect a significant portion of the
relevant consumers' decision to purchase the goods and/or
services.

In re Budge, 857 F.2d 773, 8 USPQ2d 1259, 1260 Fed. Cir. 1988); see also In
re Spirits Intl, N. V. , 563 F.3d 1347, 1353, 1356, 90 USPQ2d 1489, 1492-93, 1495
(Fed. Cir. 2009); In re ALP of S. Beach Inc., 79 USPQ2d 1009 (TTAB 2006); In re
Phillips-Van Heusen Corp., 63 USPQ2d 1047 (TTAB 2002); and In re Organik
Techs., Inc., 41 USPQ2d 1690 (TTAB 1997).
It is the Examining Attorney’s position that:
[T]he term Omega as used within the dietary, nutritional and/or herbal
supplements industry denotes supplements containing omega fatty
acids as a material ingredient. Here, applicant’s mark encompasses
the term OMEGA, but not all of its goods encompass omega fatty acids
… [and] [s]ince all of the goods do not encompass omega fatty acids,
such omission misdescribes the character, quality, function,

3 Application Serial No. 77486441, filed on May 29, 2008, based on a foreign registration
under Section 44 of the Trademark Act, 15 U.S.C. § 1126, also claiming prior Reg. No.
3111385.
Serial Nos. 77486429; 77486441

3

composition, or use of the dietary, nutritional, and/or herbal
supplements.

E. A. Br. pp. 5-6.
In support of the refusal, the examining attorney submitted evidence showing
use of the terms “omega-3 fatty acids,” “omega 3,” “omega-6 fatty acids,” and
“omega-9 fatty acid” in connection with both human and animal nutritional
supplements.4
Applicant argues that there “is no chemical or biological ingredient in
existence which is called an ‘omega’ or ‘omegas’ and thus the Examining Attorney’s
evidence does not even pertain to Appellant’s mark.” App. Br. p. 7. Rather,
applicant argues that its OMEGA ALPHA marks when viewed in their entireties
would be perceived as the Greek letters signifying “from the end to the beginning.”
App. Br. p. 8. Applicant explains that in chemistry “the term ‘omega’ is used to
pronounce the Greek letter ‘ώ’ used in chemical nomenclature to indicate a location
of a carbon atom with respect to the molecule as a whole …[t]hus, the Examining
Attorney’s conclusion that few of Appellant’s goods contain ‘omegas’ is incorrect. In
fact, none of Appellant’s goods contain ‘omegas’ nor do any other compositions in the
world contain ‘omegas.’ ‘Omega’ (ώ ) is a Greek letter simply signifying a position of
a carbon, and is not a substance.” App. Br. pp. 8-9. Applicant concludes that there
“is no evidence in the record that ‘omegas’ or ‘omega fatty acids’ is an ingredient

4 We grant the examining attorney’s request that we take judicial notice of dictionary
definitions BETA, BETA-TEST and IOTA. In re Red Bull GmbH, 78 USPQ2d 1375, 1378
(TTAB 2006). See also University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

Serial Nos. 77486429; 77486441

4

which any of the goods on Appellant’s list can possibly contain. Rather the evidence
of record shows that ‘omega’ is a term in chemistry describing the end chemical
group, and is not exclusive to describing fatty acids. … All of this evidence in the
record makes clear that that numeral is consistently used by the public to denote
the fatty acid ingredient of a nutritional supplement. Appellant’s mark does not
utilize any numerals because it does not refer to fatty acids but instead to the Greek
letters OMEGA and ALPHA.” Reply Br. p. 9, 11.
As noted by applicant, all of the examples in the record are for the specific
ingredient omega 3, 6 or 9 fatty acids. There is no example of the term OMEGA or
even OMEGAS used to describe an ingredient of a nutritional supplement. In
addition, viewing the marks as a whole we find that they do conjure up the meaning
“from the end to the beginning” the reverse of the commonly known ALPHA to
OMEGA “from the beginning to the end.” In view thereof, we find that there is not
sufficient evidence to establish that they contain a term that misdescribes the
character, quality, function, composition, or use of the goods. Budge, 8 USPQ2d at
1260.
Accordingly, we find that the examining attorney has failed to demonstrate
that applicant’s mark is deceptive when used in connection with the identified
goods.
Decision: The refusal to register under Section 2(a) of the Trademark Act is
reversed.