88282119 (T.T.A.B. Oct. 6, 2021)

Perdue Foods LLC

Trademark Trial and Appeal BoardOct 6, 2021

88282119 (T.T.A.B. Oct. 6, 2021)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: October 6, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Perdue Foods LLC _____ Application Serial No. 88282119 Application Serial No. 88282136 _____ Rebecca Liebowitz of Venable LLP, for Perdue Foods, LLC. Edward Payabyab, Trademark Examining Attorney, Law Office 128, Travis Wheatley, Managing Attorney. _____ Before Bergsman, Lynch and Pologeorgis, Administrative Trademark Judges. Opinion by Bergsman, Administrative Trademark Judge: Perdue Foods LLC (“Applicant”) seeks registration on the Principal Register of the mark FLEXITARIAN FRIENDLY (in standard characters), in two applications, for Meat; poultry; chicken; turkey; beef; pork; processed meats; processed food products, namely, appetizer bites, cutlets, nuggets, meatballs, patties, and sausages consisting primarily of poultry, meat, beef, chicken, pork, or turkey, in International Class 29;1 1 Serial No. 88282119 was filed January 30, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in commerce. Serial No. 88282118 Serial No. 88282136 - 2 - Meat substitutes; plant-based meat substitutes; vegetable based meat substitutes; vegan meat substitutes; vegetarian meat substitutes; processed food products, namely, appetizer bites, cutlets, nuggets, meatballs, patties, and sausages consisting primarily of vegetables, nuts or pulses, in International Class 29; and Processed food products, namely, appetizer bites, cutlets, nuggets, meatballs, patties, and sausages consisting primarily of grains, in International Class 30.2 The Examining Attorney refused to register Applicant’s mark, in both applications, on the grounds that it fails to function as a trademark under Sections 1, 2, and 45, and that it is merely descriptive under Section (2)(e)(1) of the Trademark Act, 15 U.S.C. §§1051-1052, 1127; 15 U.S.C. §1052(e)(1). Because the issues in the appeal for both applications involve common issues of law and fact, the Board, on its own initiative, consolidates the appeals. See, e.g., In re S. Malhotra & Co., 128 USPQ2d 1100, 1102 (TTAB 2018) (Board sua sponte consolidated two appeals). We refer to the record in Serial No. 88282119 unless otherwise indicated. Citations to the record are to the Trademark Status and Document Retrieval (TSDR) system by page number in the downloadable .pdf format. I. Evidentiary Issue Before proceeding to the merits of the refusals, we address an evidentiary matter. Applicant, in its brief, attached copies of third-party registrations and a copy of a 2 Serial No. 88282136 was filed January 30, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in commerce. Serial No. 88282118 Serial No. 88282136 - 3 - Board decision designated as “not a Precedent of the TTAB” that Applicant previously submitted in its March 4, 2021 Request for Reconsideration. In addition, Applicant, in its brief, attached dictionary definitions of the word “compliant” and “friendly” from several sources including the Merriam-Webster Dictionary (merriam-webster.com). The Examining Attorney, in his brief, objects to the above-noted evidence contending that Applicant submitted “new evidence” in its brief.3 The objection is overruled. First, with respect to the previously submitted evidence, Applicant should not have submitted it a second time with its brief. Exhibits to briefs are generally unnecessary and are discouraged. See Hole In 1 Drinks, Inc. v. Michael Lajtay, 2020 USPQ2d 10020, at *2 (TTAB 2020) (exhibits attached to brief not considered); Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1955 (TTAB 2008) (“while exhibits to briefs are not explicitly prohibited by the Trademark Rules, the Board will usually ignore them, because they comprise either untimely evidence or unnecessary copies of timely evidence”); ITC Entm’t Group Ltd. v. Nintendo of Am. Inc., 45 USPQ2d 2021, 2022-23 (TTAB 1998) (filing duplicative submissions is a waste of time and resources, and is a burden on the Board). We consider the third-party registrations attached to Applicant’s March 4, 2021 Request for Reconsideration. With respect to the copy of the case designated as “not a Precedent of the TTAB,” when such a case is relied on, “the citing party should append a copy of the decision to the motion or brief in which the decision is cited.” TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 101.03 (2021). Thus, the inclusion of the Board 3 Examining Attorney’s Brief (8 TTABVUE 3). Serial No. 88282118 Serial No. 88282136 - 4 - decision was appropriate. Nevertheless, the Board does not encourage the citation to non-precedential decisions because they are not binding on the Board, nor are they a substitute for evidence needed to support or traverse a refusal. See In re tapio GmbH, 2020 USPQ2d 1138, at *8 n.34 (TTAB 2020) (Board found unpersuasive non- precedential decisions decided on different records); In re Soc’y of Health and Physical Educators, 127 USPQ2d 1584, 1587 n.7 (TTAB 2018) (“Board decisions which are not designated as precedent are not binding on the Board, but may be cited and considered for whatever persuasive value they may hold.”). Finally, we take judicial notice of the definitions from the MERRIAM-WEBSTER DICTIONARY posted at as it is a reliable source. See In re Jimmy Moore LLC, 119 USPQ2d 1764, 1767-1768 (TTAB 2016) (Board may take judicial notice of online dictionary definitions also available in printed form). II. Whether Applicant’s mark FLEXITARIAN FRIENDLY is merely descriptive. In the absence of acquired distinctiveness, Section 2(e)(1) of the Trademark Act precludes registration of a mark on the Principal Register that, when used in connection with an applicant’s goods, is merely descriptive of them. 15 U.S.C. § 1052(e)(1). “A mark is merely descriptive if it immediately conveys information concerning a feature, quality, or characteristic of the goods or services for which registration is sought.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1373 (Fed. Cir. 2018) (quoting In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017)). Serial No. 88282118 Serial No. 88282136 - 5 - We “must consider the mark as a whole and do so in the context of the goods or services at issue.” DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (emphasis added); In re Calphalon Corp., 122 USPQ2d 1153, 1162 (TTAB 2017). “Whether consumers could guess what the product is from consideration of the mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). Rather, “the question is whether someone who knows what the goods and services are will understand the mark to convey information about them.” DuoProSS, 103 USPQ2d at 1757 (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)). This applies to compound marks as well. In considering a mark as a whole, the Board may weigh the individual components of the mark to determine the overall impression or the descriptiveness of the mark and its various components. … [I]f ... two portions individually are merely descriptive of an aspect of appellant’s goods, the PTO must also determine whether the mark as a whole, i.e., the combination of the individual parts, conveys any distinctive source-identifying impression contrary to the descriptiveness of the individual parts. In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004). Thus, the issue before us is whether the mark FLEXTARIAN FRIENDLY, in its entirety, is merely descriptive when used in connection with the identified food products. Serial No. 88282118 Serial No. 88282136 - 6 - The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “flexitarian” as “one whose normally meatless diet occasionally includes meat or fish.”4 The dictionary posted the following example of “flexitarian” used in a sentence: “Some individuals classify themselves as part-time vegetarians, or flexitarians.”5 The word “flexitarian” is derived by the combination of Flexi(ble) and (Vege)tarian.6 The MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) defines “friendly,” inter alia, as “serving a beneficial or helpful purpose” and “designed or intended to accommodate particular needs, users, etc. – usually used in combination // a kid- friendly restaurant // providing a more business-friendly and professional environment.”7 The websites listed below refer to a flexitarian diet as a plant-based diet permitting occasional meat and other animal products. ● Everyday Health website (everydayhealth.com) (January 3, 2019) What is a Flexitarian Diet? What to Eat and How to Follow the Plan Flexitarians eat a mostly plant-based diet with animal products occasionally thrown in. The word flexitarian is simply the combination of the two words flexible and vegetarian, while a diet is simply a way of life. The theory behind a Flexitarian Diet is a more flexible approach to vegetarianism, so that you can still 4 November 18, 2019 Office Action (TSDR 8). See also the CAMBRIDGE DICTIONARY (dictionary.cambridge.org/us/) (id. at TSDR 14); MACMILLAN DICTIONARY (macmillandictionary.com/us/) (id. at TSDR 17). 5 Id. at TSDR 9. 6 Id. at TSDR 10. 7 Id. at TSDR 20-21. See also the CAMBRIDGE DICTIONARY (dictionary.cambridge.or/us/) (id. at TSDR 33). Serial No. 88282118 Serial No. 88282136 - 7 - reap the benefits of loading up on fruits and vegetables, and whole grains, without ditching animal products like steak and burgers entirely.8 ● Good Housekeeping magazine website (goodhousekeeping.com) (October 24, 2019) What is the Flexitarian Diet? Everything to Know About the Semi-Vegetarian Lifestyle ___ What is the Flexitarian diet? The diet emphasizes plant-based foods most of the time, but also leaves wiggle room for the occasional meaty indulgence.9 ● Healthline website (healthline.com) (October 17, 2018) The Vegetarian Diet: A Beginner’s Guide and Meal Plan ___ There are several forms of vegetarianism, each of which differs in their restrictions. The most common include: ___ Flexitarian diet. A mostly vegetarian diet that incorporates occasional meat, fish or poultry.10 ● P. Allen Smith website (pallensmith.com) (May 8, 2019) What is a Flexitarian Diet? ___ 8 September 4, 2020 Office Action (TSDR 71). 9 Id. at TSDR 73. 10 May 18, 2020 Response to Office Action (TSDR 23-24). Serial No. 88282118 Serial No. 88282136 - 8 - Sustainable diets were designed to combine the challenges of creating a food system that supplies healthy diets for a growing population while also reducing its environmental impact. This is where the flexitarian diet comes in. The name, Flexitarian, is a combination of word flexible and vegetarian. Created by dietitian Dawn Jackson Blatner, this diet is designed to help reap the benefits of a plant- based diet without having to give up meat and animal products entirely.11 ___ The goal of a flexitarian diet is to emphasize plant-based foods, while still allowing meat and other animal products in moderation.12 ● Let’s Chat Snacks website (letschatsnacks.com) Flex Marks the Spot: Flexitarian Foodservice Trend Helps Boost Business Millennials continue to flex their muscles in the foodservice marketplace. The prevalence of flexitarianism – the trend toward consuming less meat and diversifying food intake with more meat alternatives – is a case in point. ___ As Forbes reported, the millennial-driven rise of flexitarianism has been so meteoric, it prompted Meat Industry Hall of Fame President Chuck Jolley to dub it one of the six great challenges of agriculture in 2018.13 ● The National Provisioner Magazine website (provisioneronline.com) (February 13, 2020) Perdue Foodservice launches Perdue Chicken Plus 11 November 18, 2019 Office Action (TSDR 53). 12 Id. at TSDR 55. 13 Id. at TSDR 57. Serial No. 88282118 Serial No. 88282136 - 9 - To help flexitarian consumers who are hungry for new ways to eat more vegetables without sacrificing flavor, Perdue Foodservice is introducing the first-of-its-king PERDUE CHICKEN PLUS nuggets and patties blended with vegetables. Perdue’s latest innovation, PERDUE CHICKEN PLUS blends plant-based ingredients you can pronounce, such as cauliflower and chickpeas, with no-antibiotics-ever white meat chicken that is 100% vegetarian fed with no animal by-products.14 The websites listed below use the term “flexitarian friendly,” in text, to refer to foods or diets designed to accommodate the flexitarian diet. (Emphasis added). ● Nestlé Professional website (nestleprofessional.com) (July 29, 2020) NutriPro Make it sizzle: Six Steps to Success Since demand for flexitarian-friendly food is already high, it’s easy to plan a successful launch and create buzz. From the environment to health concerns to simple curiosity, there are many reasons behind the recent rise in flexitarians. And just in time for this growing trend, there’s also a brand new category of flexitarian-friendly food that’s versatile, easy to work with in the kitchen, and good to eat.15 ● Google Search for “flexitarian friendly” (Google.com) retrieved the following: Below are a few guidelines you can follow to maintain a flexitarian diet. • Eat mostly fruits, vegetables, legumes and whole grains. • Focus on protein from plants instead of animals. • Be flexible and incorporate meat and animal products from time to time. 14 September 4, 2020 Office Action (TSDR 23). 15 September 4, 2020 Office Action (TSDR 79). Serial No. 88282118 Serial No. 88282136 - 10 - • Eat the least processed, most natural form of foods.16 ● Kalsec website (kalsec.com) IFT 2017 Trends: Reflect with Purpose ___ POWER TO THE PLANTS The third tread we noticed was a focus on flexitarian- friendly foods and ingredients to support a (mostly) plant- based diet.17 ● American Egg Board website (aeb.org) Incredible Any Time Of Day ___ Eggs Play Supporting Role on Plant-Friendly Plates … This flexitarian-friendly protein is also an economical choice. Many plant-forward diners are flexitarian, with 63 percent of consumers agreeing that a plant-based diet dish can include an animal-based component.18 ● The Food Service Direct website (foodservicedirect.com) advertises TOFURKY, a vegetarian plant-based food as “flexitarian approved.”19 In addition, the website provides the following information: About this product In this day and age, it’s harder to survive as a dining establishment without featuring plant-based and flexitarian-friendly options.20 16 October 17, 2019 Response to Office Action (TSDR 19). 17 April 17, 2019 Office Action (TSDR 9). 18 April 17, 2019 Office Action (TSDR 11). 19 November 18, 2019 Office Action (TSDR 44). 20 Id. at TSDR 45. Serial No. 88282118 Serial No. 88282136 - 11 - ● The Soyfoods Council website (soyfoodscouncil.com) Considering The Mediterranean Diet? Add Healthy Soyfoods Into The Mix ___ 3. If you are looking for flexitarian friendly foods, say hello to soy.21 ● Cision PRWeb website (prweb.com) (November 15, 2019) Champion of Gut Health to Bring Prebiotic Energy Bars to UNIF/SUPERVALU 2019 National Expo ___ Rowdy’s pioneering use of low-glycemic prebiotic Yacon Root has the food industry buzzing. Brand Highlights • Keto, Vegetarian, Paleo, and Flexitarian friendly22 ● SmartBrief website (smartbrief.com) (July 8, 2019) How can grocers and food producers cater to flexitarians? ___ What does a flexitarian eat? Defined generally, a flexitarian diet combines flexibility with vegetarianism, allowing consumers to enjoy some animal products in moderation, while also adopting some tenets of a vegetarian lifestyle, according to the 2009 book, The Flexitarian Diet. Those who follow this lifestyle aren’t necessarily shutting animal products out of their diets, but they are looking to reduce them and to bring in more plant-based foods.23 21 Id. at TSDR 50. 22 Id. at TSDR 62. 23 September 4, 2020 Office Action (TSDR 47). Serial No. 88282118 Serial No. 88282136 - 12 - ___ Brands interested in appealing to flexitarian consumers should keep in mind that although more people are adopting this diet, they may not label themselves “flexitarians.” Therefore, those who are looking to connect with these consumers should more generally share the ingredients of their foods rather than advertising them as “flexitarian-friendly.”24 ● RecipeGuru website (therecipeguru.com) (August 9, 2019) Why Food Marketing Teams Should Be Jumping On Board With The Flexitarian Trend ___ We often use Tesco as an example of a grocery retailer that is doing recipes right thanks to their shoppable meal planer. Although they don’t promote their featured meal plans as flexitarian-friendly, choosing to focus on seasonality instead, these meal plans do include 1-3 vegan and/or vegetarian recipes. For consumers getting to grips with reducing meat consumption in particular, this is [ ] and incredibly valuable tool that should keep them engaged with Tesco’s recipe content going forward, but Tesco is missing a trick by not promoting these meal plans as flexitarian.25 ● Orlando Weekly website (orlandoweekly.com) (February 1, 2020) The most anticipated new restaurants opening in Orlando this year ___ Estefan Kitchen She shuttered Bongo’s Cuban Café at Disney Springs (it’ll transform to the flexitarian-friendly Beatrix in the spring of 2021) last summer, by Gloria Estefan, along with hubby Emilio, got back in the game by opening a Cuban 24 Id. at TSDR 48. 25 September 4, 2020 Office Action (TSDR 52). Serial No. 88282118 Serial No. 88282136 - 13 - restaurant at the Margaritaville Resort’s Sunset Walk in late December.26 ● Forward newspaper website (forward.com) (April 28, 2020) Make Persian kuku sabzi for #QuarantineCooking ___ Kuku sabzi has since become my go-to for Shabbat dinner. It’s easy to scale up to feed a crowd, can be made ahead of time, has beautiful and dramatic presentation, and is vegetarian/flexitarian friendly.27 The above-noted evidence shows that FLEXITARIAN FRIENDLY used in connection with food products, such as those listed in Applicant’s description of goods, directly conveys to consumers that the food products accommodate a flexitarian diet. There is no incongruity or double entendre present in FLEXITARIAN FRIENDLY. The consumer does not need to utilize any logic or multiple step reasoning to perceive the nexus between the mark and the products. Therefore, FLEXITARIAN FRIENDLY when used in connection with the identified goods is merely descriptive. Applicant submitted copies of 25 third-party registrations consisting in part of the word “Friendly” along with another term that Applicant contends have the same structure as Applicant’s mark.28 The USPTO registered these registrations on the Principal Register without a claim of acquired distinctiveness and without a disclaimer of the exclusive right to use the word “Friendly.” We list below five representative registrations: 26 Id. at TSDR 55. 27 Id. at TSDR 60. 28 March 4, 2021 Request for Reconsideration (TSDR 26- 64, 71-74, 79, 82, 95 and 97). Serial No. 88282118 Serial No. 88282136 - 14 - ● Registration No. 4917569 for the mark SEWER FRIENDLY for, inter alia, “sewer line repair and replacement” (“sewer” disclaimed); ● Registration No. 5074140 for the mark FOOD FRIENDLY for “providing nutritional information about food to others” (“food” disclaimed); ● Registration No. 5230112 for the mark GRAIN FRIENDLY for “pet food; pet treats” (“grain” disclaimed); ● Registration No. 5293848 for the mark WEB FRIENDLY for providing services in the field of social media (“web” disclaimed); and ● Registration No. 5309693 for the mark FILIPINO FRIENDLY for, inter alia, “restaurant services”. In response, the Examining Attorney submitted copies of 13 third-party registrations consisting in part of the word “Friendly” with the same structure as Applicant’s mark where the registrants disclaimed the exclusive right to use the word “Friendly.”29 We list below three representative registrations: ● Registration No. 5847142 for the mark LO-FO PANTRY GUT-FRIENDLY FOODS for, inter alia, flour, breads, and pasta (“Gut-Friendly Foods” disclaimed); ● Registration No. 6214828 for the mark DIABETIC FRIENDLY PURE MONK FRUIT and design for barbecue sauce and spice blends (“Diabetic Friendly” disclaimed); and 29 April 12, 2021 Denial of the Request for Reconsideration (TSDR 4-42). Serial No. 88282118 Serial No. 88282136 - 15 - ● Registration No. 6225604 for the mark EARTH-FRIENDLY, BUTCHER APPROVED! for, inter alia, prepared meals consisting of plant-based meat (“Earth- Friendly” disclaimed). Applicant argues that the USPTO has not treated “- Friendly” formative marks consistently: sometimes the USPTO considers the “- Friendly” formative as merely descriptive and sometimes the USPTO does not consider it merely descriptive. Applicant contends the USPTO’s contradictory treatment of the “- Friendly” formative creates doubt as to whether Applicant’s mark FLEXITARIAN FRIENDLY is merely descriptive and, therefore, asserts it should be approved for publication.30 The record in this case is similar to the record in In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001), in containing many prior registrations with similar characteristics. In this case, the prior registrations feature the “- Friendly” formative. However, some of the combinations of words are distinguishable, and as noted above, the prior registrations do not conclusively establish a consistent policy or practice that would apply to Applicant’s mark. Thus, the prior registrations do not overcome our finding that Applicant’s mark FLEXITARIAN FRIENDLY is descriptive. We are required to decide each case on its own merits. Nett Designs, 57 USPQ2d at 1566. “Even if some prior registrations had some characteristics similar to [Applicant’s] application, the PTO's allowance of such prior registrations does not bind the Board or this court.” Id. 30 Applicant’s Brief, p. 10 (6 TTABVUE 13). Serial No. 88282118 Serial No. 88282136 - 16 - Because we affirm the refusals to register Applicant’s mark FLEXITARIAN FRIENDLY under mark under Section 2(e)(1) of the Trademark Act, we need not analyze the refusals that FLEXITARIAN FRIENDLY fails to function as a mark under Sections 1, 2, and 45 of the Trademark Act. See In re DTI Partnership LLP, 67 USPQ2d 1699, 1702 (TTAB 2003) (affirmance of requirement for product information was sufficient basis to refuse registration; Board declined to reach merits of refusal based on mere descriptiveness because applicant’s failure to submit required information hindered Board’s ability to assess the latter refusal). “Like the federal courts, the Board has generally used its discretion to decide only those claims necessary to enter judgment and dispose of the case. . . [T]he Board’s determination of registrability does not require, in every instance, decision on every pleaded claim.” Multisorb Tech., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1171 (TTAB 2013). Decision: We affirm the refusals to register Applicant’s mark FLEXITARIAN FRIENDLY under Section 2(e)(1) of the Trademark Act.