Pruvit Ventures, Inc.

Trademark Trial and Appeal Board

Oct 30, 2018

No. 87138792 (T.T.A.B. Oct. 30, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 30, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Pruvit Ventures, Inc.
_____

Serial No. 87138771
Serial No. 87138792
(Consolidated)
_____

Kyle Anne Citrynell and C. Shawn Fox of Seiller Waterman LLC,
for Pruvit Ventures, Inc.
Natalie Polzer, Trademark Examining Attorney, Law Office 108,
Steven R. Berk, Acting Managing Attorney.
_____

Before Wellington, Goodman, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Pruvit Ventures, Inc. (“Applicant”) seeks registration on the Principal Register of
the proposed marks KETO//SALT in standard characters for goods identified (as
amended) as “dietary and nutritional supplements containing ketones; ketone-based
sodium salt,” in International Class 5, and KETO//KOFFEE in standard characters
Serial Nos. 87138771 and 87138792 (Consolidated)
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for goods identified (as amended) as “dietary and nutritional supplements containing
ketones,” in International Class 5.1
The Trademark Examining Attorney has refused registration of Applicant’s
proposed marks under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1),
on the ground that they are merely descriptive of the goods identified in the respective
applications. When the Examining Attorney made the refusals final, Applicant
appealed and requested reconsideration of each refusal, which was denied. Because
the two appeals involve similar legal and factual issues, we have consolidated the
appeals sua sponte and will decide them in this single opinion. In re Anderson, 101
USPQ2d 1912, 1915 (TTAB 2012). Each appeal is fully briefed. We affirm the refusals
to register.
I. Records on Appeal
The records on appeal consist of the following:2
1. Definitions of the words “keto,” “ketones,” “salt,” and “coffee” from
dictionary.infoplease.com, and a definition of the word “ketogenic” from the

1 Application Serial No. 87138771 to register KETO//SALT and Application Serial No.
87138792 to register KETO//KOFFEE were both filed on August 15, 2016 under Section 1(b)
of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegations of a bona fide
intention to use the marks in commerce.
2 We will summarize the records in the two appeals together, but will cite them separately in
our analysis of each refusal. The Examining Attorney issued office actions in both cases on
the same dates, and Applicant responded in both cases on the same dates, so we will cite
office actions and responses in the singular.
Serial Nos. 87138771 and 87138792 (Consolidated)
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COLLINS DICTIONARY (collinsdictionary.com), made of record by the
Examining Attorney;3
2. Pages from Applicant’s website at pruvitnow.com, made of record by the
Examining Attorney;4
3. Registrations of marks containing the word KETO for various goods with
no disclaimer of KETO (including two owned by Applicant), made of record
by Applicant in Serial No. 87138771,5 and registrations of marks containing
the word KOFFEE for various goods in which the word COFFEE has been
disclaimed, made of record by the Examining Attorney;6
4. Applicant’s co-pending Application No. 87250180 to register KETO KALM
for, among other things, “dietary and nutritional supplements containing
ketones,” in which Applicant has disclaimed KETO, made of record by the
Examining Attorney;7

3 November 28, 2016 Office Action at 2-5, 44-46 (Serial No. 87138771); 2-5, 44-45 (Serial No.
87138792); July 24, 2017 Office Action at 17-20. The “ketogenic” entry in the COLLINS
DICTIONARY is followed by the word “in British,” but Applicant does not dispute that the
definition per se also applies in American English.
4 November 28, 2016 Office Action at 6-43; July 24, 2017 Office Action at 97-102; February
10, 2018 Denial of Request for Reconsideration at 4-8 (Serial No. 87138771), 4-7 (Serial No.
87138792).
5 May 30, 2017 Response to Office Action at 23-63. Applicant did not make the registrations
of record in its May 30, 2017 Response to Office Action in Serial No. 87138792. As discussed
below, the Examining Attorney objects to Applicant’s discussion of these registrations in its
brief in Serial No. 87138792, and to the submission of the registrations with its reply brief.
6 July 24, 2017 Office Action at 164-172 (Serial No. 87138792).
7 February 10, 2018 Denial of Request for Reconsideration at 2-3. The Examining Attorney
states in her brief in Serial No. 87138792 that the application matured into Registration No.
5429333 on March 20, 2018, 9 TTABVUE 4 n.1, but that registration is not in the record.
Serial Nos. 87138771 and 87138792 (Consolidated)
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5. Third-party webpages displaying KETO-formative marks for various goods,
including nutritional supplements, made of record by Applicant;8 and
6. Third-party webpages discussing the process of ketosis, the ketogenic diet,
ketones, and/or ketogenic or keto nutritional supplements and other
products, made of record by the Examining Attorney.9
II. Evidentiary Issue in Serial No. 87138792
As noted above, Applicant did not make of record in Serial No. 87138792 the third-
party registrations that it made of record in Serial No. 87138771. Applicant discussed
the registrations in its main brief in Serial No. 87138792, 7 TTABVUE 7-9, and
attached them to its reply brief. 12 TTABVUE 11-51.
The Examining Attorney objects to the third-party registrations on the grounds
that they “were never properly made part of the record” and that the “mere
submission of a list of registrations does not make such registrations part of the
record.” 9 TTABVUE 4.10 Applicant responds in its reply brief that it first provided
the list of registrations during prosecution,11 and that the Examining Attorney
discussed and rejected the probative value of the registrations in her final refusal,12

8 May 30, 2017 Response to Office Action at 2-19.
9 July 24, 2017 Office Action at 2-16, 21-96, 103-146 (Serial No. 87138771), 2-16, 21-96, 103-
163, 173-182 (Serial No. 87138792).
10 After making her objection, the Examining Attorney stated later in her brief that she would
address the registrations “[i]n the event that the Board does not grant the evidentiary
objection.” 9 TTABVUE 7 n.2. Applicant does not argue in its reply brief that the Examining
Attorney’s discussion of the registrations in her brief constitutes a waiver of her objection,
and we do not find that it constitutes a waiver.
11 May 30, 2017 Response to Office Action at 21.
12 July 24, 2017 Office Action at 1.
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but “failed to indicate that a mere listing of third-party registrations was not a proper
means to introduce the evidence into the record.” 12 TTABVUE 6. According to
Applicant, this “operates as a waiver of an objection to such evidence.” Id. Applicant
relies primarily on In re Houston, 101 USPQ2d 1534 (TTAB 2012), in support of its
waiver argument.
In Houston, the applicant’s main brief listed 13 third-party registrations in
support of its argument, and copies of the registrations were attached to the
applicant’s reply brief. Id. at 1536. The examining attorney objected to consideration
of both the list and the copies of the registration. The Board noted that the same list
of registrations had been included in the applicant’s response to an office action, and
that in the examining attorney’s final refusal, she “neither discussed applicant’s
listed registrations, nor did she inform applicant that a mere list was not a proper
means to introduce registrations into the record.” Id. Under those circumstances, the
Board found that “the examining attorney’s failure to advise applicant of the
insufficiency of the list of registrations when it was proffered during examination
constituted a waiver of any objection to consideration of that list” and stated that “we
will consider the same list of registrations set out in applicant’s opening brief ‘for
whatever limited probative value such evidence may have.’” Id. (quoting In re Broyhill
Furniture Indus. Inc., 60 USPQ2d 1511, 1513 n.3 (TTAB 2001)).
The Board “reach[ed] a different conclusion with respect to the copies of
applicant’s thirteen listed third-party registrations attached to its reply brief,” id.,
however, finding that it was “manifestly untimely” and would not be considered. Id.
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at 1537. The Board found that “the examining attorney’s failure to object during
examination constituted a waiver of objection only to the evidence which was
improperly submitted during examination, namely, the list of registrations,” and that
the “absence of an objection to the list was not a waiver of any objection to the future
untimely submission of the registrations with applicant’s brief or reply brief.” Id. at
1537 n.7. The Board held that its consideration of the third-party registrations would
be limited to the information that applicant had listed in its response during
prosecution and had repeated in its main brief. Id.
In her final refusal here, the Examining Attorney addressed Applicant’s
references to third-party registrations in general terms,13 but failed to advise
Applicant that it was necessary to submit copies of the registrations themselves to
make them of record. We find that the Examining Attorney’s failure to object during
examination constituted a waiver of objection, but “only to the evidence which was
improperly submitted during examination, namely, the list of registrations,” not to
the registrations themselves, which were submitted for the first time with Applicant’s
reply brief. Id.; see also In re ActiveVideo Networks Inc., 111 USPQ2d 1581, 1593-94
n.40 (TTAB 2014) (where examining attorney “explicitly countered the substance” of

13 She stated, among other things, that Applicant’s “arguments in favor of registration on the
Principal Register based on third-party registrations submitted by the applicant is [sic] not
persuasive,” that the “fact that third-party registrations exist for marks allegedly similar to
applicant’s mark is not conclusive on the issue of descriptiveness,” and that “[a]n applied-for
mark that is merely descriptive does not become registrable simply because other seemingly
similar marks appear on the register.” July 24, 2017 Office Action at 1. She also discussed
the general principle that each application for registration must be decided on its own merits
and that examining attorneys and the Board are not bound by prior decisions involving
different marks and records. Id.
Serial Nos. 87138771 and 87138792 (Consolidated)
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a detailed table regarding third-party registrations discussed by the applicant during
prosecution, but failed to advise the applicant that the list did not make the
registrations of record, the Board “considered the list and the detailed information
provided during examination”); cf. In re Mueller Sports Med., Inc., 126 USPQ2d 1584,
1587 (TTAB 2018) (discussing examining attorney’s failure to object during
prosecution to applicant’s improper Internet evidence). We have considered the list
of registrations and additional information provided by Applicant during
prosecution,14 and repeated in Applicant’s main brief, 7 TTABVUE 7-9,15 but we
sustain the Examining Attorney’s objection to the copies of the third-party
registrations attached to Applicant’s reply brief. Houston, 101 USPQ2d at 1537; In re
Fiat Grp. Mktg. & Corp. Commc’ns S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014).
III. Analysis of Mere Descriptive Refusals
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the goods of the
applicant is merely descriptive . . . of them,” unless the mark has been shown to have
acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C.
§ 1052(f).16 A mark is “merely descriptive” within the meaning of § 2(e)(1) “if it
immediately conveys information concerning a feature, quality, or characteristic of

14 May 30, 2017 Response to Office Action at 21.
15 Applicant makes statements in its main brief about when certain of the registrations
issued. 7 TTABVUE 9. That information was not provided during prosecution and we have
given it no consideration.
16 Applicant did not make a claim of acquired distinctiveness during prosecution of either
application.
Serial Nos. 87138771 and 87138792 (Consolidated)
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the goods or services for which registration is sought.” In re N.C. Lottery, 866 F.3d
1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer Aktiengesellschaft,
488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). “A mark need not immediately
convey an idea of each and every specific feature of the goods in order to be considered
merely descriptive; it is enough if it describes one significant attribute, function or
property of the goods.” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513
(TTAB 2016) (citing In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir.
1987)).17
Whether a mark is merely descriptive is “evaluated ‘in relation to the particular
goods for which registration is sought, the context in which the mark is used, and the
possible significance the term would have to the average consumer because of the
manner of its use or intended use,’” Chamber of Commerce, 102 USPQ2d at 1219
(quoting Bayer, 82 USPQ2d at 1831), and “not in the abstract or on the basis of
guesswork.” Fat Boys, 118 USPQ2d at 1513 (citing In re Abcor Dev. Corp., 588 F.2d
811, 200 USPQ 215, 218 (CCPA 1978)). We must ask “‘whether someone who knows
what the goods and services are will understand the mark to convey information
about them.’” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., ___ F.3d ___, 128 USPQ2d
1370, 1374 (Fed. Cir. 2018) (quoting DuoProSS Meditech Corp. v. Inviro Med. Devices

17 A “mark need not be merely descriptive of all recited goods or services in an application. A
descriptiveness refusal is proper ‘if the mark is descriptive of any of the [goods] for which
registration is sought.’” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d
1217, 1219 (Fed. Cir. 2012) (quoting In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087,
1088 (Fed. Cir. 2005)).
Serial Nos. 87138771 and 87138792 (Consolidated)
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Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (internal quotation
omitted)).18
Because the KETO//SALT and KETO//KOFFEE marks at issue involve the
combination of two terms, we are “required to examine the meaning of each
component individually, and then determine whether the mark as a whole is merely
descriptive.” DuoProSS, 103 USPQ2d at 1758. We “may not ‘dissect’ the mark into
isolated elements, without ever consider[ing] the entire mark,” but we “may weigh
the individual components of the mark to determine the overall impression or
descriptiveness of the mark and its various components.” Real Foods, 128 USPQ2d
at 1374 (internal quotation marks and citations omitted). If the first word KETO, and
the secondary terms SALT and KOFFEE, are individually descriptive of the goods in
the two applications, we must then determine whether their combination in
Applicant’s marks “‘conveys any distinctive source-identifying impression contrary to
the descriptiveness of the individual parts.’” Fat Boys, 118 USPQ2d at 1515-16
(quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed.
Cir. 2003)). If each word instead “retains its merely descriptive significance in
relation to the goods, the combination results in a composite that is itself merely
descriptive.” Fat Boys, 118 USPQ2d at 1516 (citing In re Tower Tech., Inc., 64
USPQ2d 1314, 1317-18 (TTAB 2002)); see also In re Mecca Grade Growers, LLC, 125
USPQ2d 1950, 1953-55 (TTAB 2018).

18 A mark is suggestive, and not merely descriptive, if it requires imagination, thought, and
perception on the part of someone who knows what the goods or services are to reach a
conclusion about their nature from the mark. See, e.g., Fat Boys, 118 USPQ2d at 1515.
Serial Nos. 87138771 and 87138792 (Consolidated)
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Evidence of the public’s understanding of a term may be obtained from any
competent source, such as dictionaries, newspapers, surveys, labels, packaging, or
advertising materials. Real Foods, 128 USPQ2d at 1374 (citing Royal Crown Co. v.
Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1046 (Fed. Cir. 2018)). It may also
be obtained from the applicant’s own materials, including its specimen of use, Mecca
Grade Growers, 125 USPQ2d at 1953 (citing N.C. Lottery, 123 USPQ2d at 1710), as
well as from information provided by the applicant during prosecution. In re
Calphalon Corp., 122 USPQ2d 1153 (TTAB 2017).
“It is the Examining Attorney’s burden to show, prima facie, that a mark is merely
descriptive of an applicant’s goods or services.” Fat Boys, 118 USPQ2d at 1513
(citations omitted). “If such a showing is made, the burden of rebuttal shifts to the
applicant.” Id. “The Board resolves doubts as to the mere descriptiveness of a mark
in favor of the applicant.” Id.
A. Serial No. 87138771
We begin by defining the nature of Applicant’s goods as identified and explained
by Applicant. Applicant originally sought registration of KETO//SALT for goods
identified as “dietary and nutritional supplements; ketone-based sodium salt.” In
response to an information request during prosecution, Applicant explained that its
“goods will contain ketones,”19 and “are a condiment containing ketones that serve as

19 The dictionary definition of “ketone” in the record is a scientific one: “any of a class of
organic compounds containing a carbonyl group, CO, attached to two alkyl groups, as
CH3COCH3 or CH3COC2H5.” November 28, 2016 Office Action at 4 (infoplease.com). The
record shows, however, that consumers of nutritional supplements have been exposed to the
use of “ketone,” and related terms such as “ketosis,” “ketogenic,” and “keto,” in a manner
understandable to ordinary consumers who are not familiar with the chemical properties of
Serial Nos. 87138771 and 87138792 (Consolidated)
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a dietary and nutritional supplement providing health benefits such as weight loss,
blood sugar balance, preservation and promotion of muscle mass, and improved
energy levels and athletic performance.”20 Applicant also amended the portion of its
identification covering “dietary and nutritional supplements” to specify that those
goods “contain[] ketones.”
Against the backdrop of Applicant’s statements during prosecution and its
identification of goods, the Examining Attorney’s basic position is straightforward:
“[T]he individual components of the proposed mark and combination of terms, in the
context of the applicant’s goods merely describes [sic] ingredients as well as the
nature of the goods, i.e. ketones, salt, and ketone salt.” 9 TTABVUE 5. She cites
definitions of “keto” as “a combining form representing ketone in compound words,”21
and “salt” as “a crystalline compound, sodium chloride, NaCl, occurring as a mineral,

ketones. One website explains that a “ketogenic diet” is one that is “high in fat and low in
carbohydrates while supplying adequate protein to the body,” and that causes the body to be
“put into a metabolic state called Ketosis, where ketones become the main source of energy
for the brain and the body to function.” July 24, 2017 Office Action at 3. Another website
provides a “Quick Overview of Ketones, Ketosis, and Other Keto Terms,” and explains that
ketosis “is when our body burns ketones for fuel, and those ketones are created via a process
called ketogenesis,” and that exogenous ketones “are ketone bodies that are not made
endogenously (in the body),” but rather “are typically ingested in the form of ketone salts,
which are the main active ingredients in [Applicant’s] Keto//OS products.” February 10, 2018
Denial of Request for Reconsideration at 9. A third websites asks and answers the questions
“What is the ketogenic diet?,” “What is ketosis?,” and “What are ketones?” July 24, 2017 Office
Action at 70. Applicant’s own website states that “[w]ith a few of the right ingredients, you
can switch your body from being a slow, inefficient sugar burner to a lean, mean, fat burning
machine,” November 28, 2016 Office Action at 11, and that its KETO//KREME product “is
specially formulated to boost the body’s natural ability to convert fat into energy quickly
giving you a mental and physical boost” and “is a simple way to promote a keto lifestyle and
up your ketone game.” February 10, 2018 Denial of Request for Reconsideration at 5.
20 May 30, 2017 Response to Office Action at 1 (Serial No. 87138771).
21 November 28, 2016 Office Action at 2 (infoplease.com).
Serial Nos. 87138771 and 87138792 (Consolidated)
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a constituent of seawater, etc., and used for seasoning food, as a preservative, etc.,”22
and evidence that the term “ketone salt” describes a type or category of ketone
supplements. Id. at 5-6.23 She concludes that Applicant’s “identification of goods
clearly indicates that the applied-for dietary and nutritional supplements contain
ketones and that applicant’s salt is a ketone-based sodium salt.” Id.24
Applicant does not dispute that the word SALT in the proposed KETO//SALT
mark immediately describes (indeed, is the generic name of) the particular good
identified by Applicant as “ketone-based sodium salt.” Applicant focuses instead
almost entirely on the meaning of the word KETO, arguing that “[o]ne must exercise
‘mature thought or follow a multi-stage reasoning process’ to connect the term ‘keto’
to ketones and determine if ketones are an ingredient of Applicant’s goods,” 7
TTABVUE 12 (citing In re Tennis in the Round, Inc., 199 USPQ 496 (TTAB 1978)),
because “the term ‘keto’ can have multiple meanings.” Id. According to Applicant:
A consumer (even a consumer with knowledge that the
product is a dietary or nutritional supplement)
encountering the term “keto” would have to ask which of
the following three things the term “keto” is trying to
suggest about the product: 1) Is the product part of or
promoting a ketogenic diet? 2) Does the product affect the
body in such a way as to cause the body to produce ketones

22 Id. at 44 (infoplease.com).
23 July 24, 2017 Office Action at 108-109 (displaying Nutricost Ketone Salt, which claims to
contain “4 Different Ketone Salts” and which list four types of ketone salts on label
ingredients disclosure), 125 (discussing “Ketone Salt Supplements” and “Ketone salts,” which
the website states are formed when “ketones are bound to a salt, typically sodium or calcium,
potassium, or magnesium,” and stating that “[a]ll of the supplements available on the market
currently are ketone salts, and they are the most recommended and useful for the average
consumer”).
24 The Examining Attorney also responds to a number of Applicant’s arguments, which we
discuss below.
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as a bi-product as a result of its ingredients? 3) Does the
product contain actual ketones as an ingredient?
7 TTABVUE 7.
Applicant’s basic argument, that “a consumer (even one with knowledge that the
product is a dietary or nutritional supplement) would not instantaneously know that
Applicant’s products contain ketones upon seeing the term ‘keto’ used in association
with the product,” and “must do further research or engage in further reasoning to
determine that ketones are an ingredient of the product,” 7 TTABVUE 13, reflects a
fundamental misunderstanding of the test for mere descriptiveness. The relevant
“question is not whether someone presented only with the mark could guess the goods
. . . listed in the identification. Rather, the question is whether someone who knows
what the goods and services are will understand the mark to convey information
about them.” Mecca Grade Growers, 125 USPQ2d at 1953 (citing DuoProSS, 103
USPQ2d at 1757). Accordingly, it does not matter that in “Applicant’s industry . . .
there are foods and products that do not contain ketones and are simply part of or
promote a ketogenic diet,” or that there are “supplements that do not contain ketones
but affect the body in such a way to produce ketones as a bi-product as a result of the
ingredients,” 7 TTABVUE 12-13, because the fact that KETO “may have other
meanings in different contexts is not controlling.” In re Franklin Cty. Historical Soc’y,
104 USPQ2d 1085, 1087 (TTAB 2012). The goods identified in the application are
“dietary and nutritional supplements containing ketones” and “ketone-based sodium
salt,” and we must ask whether a consumer would understand the proposed mark
Serial Nos. 87138771 and 87138792 (Consolidated)
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KETO//SALT to immediately convey information about the ingredients, features, or
characteristics of those goods.
In the proposed mark, the word KETO, “a combining form representing ketone in
compound words,”25 identifies an ingredient of “dietary and nutritional supplements
containing ketones” and “ketone-based sodium salt,” while the word SALT is the
generic name of “ketone-based sodium salt” and identifies an ingredient of Applicant’s
“dietary and nutritional supplements containing ketones,” which Applicant explains
are “ketogenic based sodium salt supplements.” 7 TTABVUE 6. A term that describes
an ingredient of goods is merely descriptive of the goods. Real Foods, 128 USPQ2d at
1375 (agreeing with Board’s finding that CORN THINS for “crisp-bread slices
predominantly of corn, namely popped corn cakes” and RICE THINS for “crispbread
slices primarily made of rice, namely rice cakes” were merely descriptive because “the
terms corn and rice . . . are descriptive because they identify ‘ingredients,’ which are
‘qualities or properties’” of the goods and the term THINS “describes physical

25 November 28, 2016 Office Action at 2 (infoplease.com). The record is also replete with
examples of the use of “keto” as a shorthand for “ketone(s),” or as a reference to the use of
ketones to achieve ketosis or as part of a ketogenic diet. See, e.g., id. at 14 (stating that use
of Applicant’s KETO//KREME supplement “is a simple way to promote a keto lifestyle”); May
30, 2017 Response to Office Action at 16 (stating that Keto Aminos product was “created
specifically for keto, low-carb or intermittent fasting diets”), July 24, 2017 Office Action at
21-34 (discussing and listing the “Top 7 Keto Supplements to Help You Reach Ketosis” and
“The 7 Best Keto Supplements for the Ketogenic Diet”), 35-43 (discussing “2017’s 10 Best
Keto Supplements,” including Nutricost Ketone Salts, Applicant’s KETO//OS product,
described as “an exogenous ketone formula specifically designed in individual packets that
can be added to your favorite beverage on the go,” and Kiss My Keto Exogenous Ketones), 44
(displaying KetoShred, “a Ketogenic Diet Supplement” that is “a multivitamin for anyone on
a keto diet”), 60 (Asking “Why Go Keto?” and stating that there “are many reasons why people
are turning to the ketogenic diet”), 64 (captioned “Common Keto FAQs”), 140 (listing “Keto
Conclusions” and discussing ketone supplements and ketone salts at end of article entitled
“To Ketone or Not to Ketone: Mineral Salts”).
Serial Nos. 87138771 and 87138792 (Consolidated)
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characteristics of the corn and rice cakes”); In re TriVita, Inc., 783 F.3d 872, 114
USPQ2d 1574, 1575-76 (Fed. Cir. 2015) (agreeing with Board’s finding that
NOPALEA was merely descriptive of “dietary and nutritional supplements
containing, in whole or in part, nopal juice” because “the relevant consumer, knowing
that the goods are supplements containing nopal cactus juice, would understand the
mark NOPALEA to convey information that the goods contain ingredients from the
Nopalea cactus”).26 The combination of the descriptive word KETO and the generic or
descriptive word SALT in the proposed KETO//SALT mark does not convey “any
distinctive source-identifying impression contrary to the descriptiveness of the
individual parts.” Fat Boys, 118 USPQ2d at 1515-16 (quotation omitted); see Real
Foods, 128 USPQ2d at 1375 (the composite marks CORN THINS and RICE THINS
were merely descriptive “because they immediately convey[] knowledge of a quality
or characteristic of the product[s], specifically the products’ main ingredients and
thickness”) (internal quotation marks and citation omitted). We agree with the
Examining Attorney that KETO//SALT “merely describes ingredients as well as the
nature of the goods, i.e. ketones, salt and ketone salt,” 9 TTABVUE 5,27 and we find

26 Unlike in TriVita, where “the record contain[ed] somewhat conflicting evidence as to the
content of [the] goods,” 114 USPQ2d at 1575, the record and the identifications of goods here
make clear that Applicant’s goods consist of salt and contain ketones.
27 Applicant argues that because its proposed mark combines “two words, ‘keto’ and ‘salt’,
that consumers would not expect to see together and, as described above, are susceptible to
multiple connotations requiring imagination, cognition, or further information to perceive
the actual ingredients, use, nature, or characteristics of Applicant’s goods, Applicant’s Mark,
when considered as a whole, is suggestive.” 7 TTABVUE 14 (citing TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) Section 1209.01(a) (Oct. 2017)). Applicant’s citation of this
section of the TMEP, which states in part that “[i]ncongruity is a strong indication that a
mark is suggestive rather than merely descriptive,” suggests that Applicant believes that its
combination of KETO and SALT is an incongruity “that consumers would not expect to see
Serial Nos. 87138771 and 87138792 (Consolidated)
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that the Examining Attorney showed prima facie that the proposed mark is merely
descriptive of the goods.
Applicant’s primary response to the Examining Attorney’s showing of mere
descriptiveness is that the Examining Attorney has “ignored extensive evidence of 40
third-party registered marks using the term ‘keto’ in connection with goods similar
to Applicant’s goods.” 7 TTABVUE 10-11.28 Applicant concludes that the “registration
of such marks is evidence of the suggestive nature of the term ‘Keto.’” Id.29 We
disagree.
It is axiomatic that each application for registration must be considered on its own
merits, and neither the Examining Attorney nor the Board is bound by the actions of
other examining attorneys who have issued registrations of other similar marks on
other records. See, e.g., Real Foods, 128 USPQ2d at 1377; In re Cordua Rests., Inc.,
823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016); In re Nett Designs Inc., 236

together.” 7 TTABVUE 14. Given the record evidence that the term “ketone salt” describes a
category of ketone supplements, July 24, 2017 Office Action at 108-109, we see nothing
incongruous in the combination of KETO and SALT in a mark for “ketone-based sodium salt”
or “dietary and nutritional supplements containing ketones” in the form of “ketogenic based
sodium salt supplements.” See Calphalon, 122 USPQ2d at 1163 (finding that there was
“nothing incongruous about the use of the word sharpen (or its phonetic equivalent
SHARPIN) to describe the function of goods identified as ‘cutlery knife blocks which
incorporate built-in sharpeners that automatically sharpen knives’”).
28 As the Examining Attorney points out, “there are actually only thirty-eight third-party
registrations submitted by the applicant as the other two registered marks are owned by the
applicant.” 9 TTABVUE 6 n.2.
29 Applicant cites Shoe Corp. of Am. v. Juvenile Shoe Corp. of Am., 266 F.2d 793, 121 USPQ
510 (CCPA 1959), as authority for its argument. 7 TTABVUE 11. That case is readily
distinguishable because it held that third-party registrations should have been considered
for the purpose of “determining whether a word or syllable has a descriptive or suggestive
significance” in “deciding an issue of confusing similarity” between two marks, id. at 512-13,
not whether one of the marks was merely descriptive.
Serial Nos. 87138771 and 87138792 (Consolidated)
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F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).30 We must assess the
registrability of Applicant’s mark for the goods identified in its application based on
the record in this case, not the previous actions of other examining attorneys.
To the extent that the third party-registrations have any probative value on the
issue of the descriptiveness of Applicant’s proposed mark, Datapipe, 111 USPQ2d at
1136-37, the Examining Attorney argues that only 14 of the third-party registrations
are currently subsisting, 9 TTABVUE 7, and Applicant does not appear to disagree,
12 TTABVUE 6,31 so we will accept this figure as the number of “live” registrations.32
Applicant also does not appear to disagree with the Examining Attorney’s additional
claim that only 10 of the 14 subsisting registrations cover dietary and nutritional
supplements. 9 TTABVUE 7; 12 TTABVUE 5. The Examining Attorney refers to
Registration No. 5160546 of the mark KETOVITALS for dietary supplements;33 No.

30 “Moreover, we are not privy to the evidence and argument adduced in these other
registrations,” In re Datapipe, Inc., 111 USPQ2d 1330, 1336 (TTAB 2014), because Applicant
made of record only the certificates of registration, not the registrations’ file histories. May
30, 2017 Response to Office Action at 23-63. As a result, there is nothing in the record to
support Applicant’s claims that for “all but 13 of those registered marks, no descriptiveness
argument was ever raised by the Examiner” and that for “the 13 registered marks where a
descriptiveness argument was raised, the mark proceeded to registration despite the
descriptiveness argument raised by the Examiner.” 7 TTABVUE 11.
31 Applicant’s main brief states that only 23 of the 40 registrations “are live marks.” 7
TTABVUE 7. Its reply brief accepts 14 as the figure. 12 TTABVUE 6.
32 Contrary to Applicant’s claim, 12 TTABVUE 6-7, only those registrations have probative
value because “[w]e have long held that cancelled or expired registrations are not evidence of
anything except that they issued.” Datapipe, 111 USPQ2d at 1336 n.11. Applicant appears
to misinterpret the quoted language in Datapipe to mean that the “dead” registrations have
probative value because they “would never have been registered and issued if ‘keto’ was
descriptive” and “the fact that the marks were registered proves that the term is not
descriptive,” 12 TTABVUE 6, but the Board in Datapipe did not consider them in its analysis
of descriptiveness even though they had issued at one time. 111 USPQ2d at 1336.
33 May 30, 2017 Response to Office Action at 48.
Serial Nos. 87138771 and 87138792 (Consolidated)
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5015582 of the mark KETOSLIM for dietary supplements, namely, dietary
supplements that improve KETO genesis;34 No. 4616017 of the mark KETOGEN for
dietary supplements, namely, drinks and powdered drink mixes for use in the dietary
management of epilepsy and metabolic disorders and for the treatment of seizures;35
No. 5061068 of KETOSHIELD for nutritional supplements; dietary and nutritional
supplements,36 No. 4514284 of KETOFORCE for a liquid nutritional supplement;37
No. 4449793 of KETOFLO for nutritional supplements for medical use and dietary
food supplements for medical use, among other goods;38 No. 4382775 of KETO-MAX
for dietary supplements;39 Nos. 4355091 and 4347595 of KETOVOLVE and
KETOVOLVE and design for dietary supplements, namely, drinks and powdered
drink mixes, for use in the dietary management of epilepsy and metabolic disorders
and for the treatment of seizures;40 and No. 2964802 of 7-KETO for ingredients and
components of dietary supplements.41
KETO was not disclaimed in any of the 10 registrations, but only Registration No.
5015582 of the mark KETOSLIM for “dietary supplements that improve KETO
genesis” references ketones in the identification, and that registration does not

34 May 30, 2017 Response to Office Action at 42.
35 Id. at 40.
36 Id. at 45.
37 Id. at 41.
38 Id. at 38.
39 Id. at 39.
40 Id. at 36-37.
41 Id. at 63.
Serial Nos. 87138771 and 87138792 (Consolidated)
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specify that the goods contain ketones. The goods identified in this registration
appear to be in the category of supplements described by Applicant as ones that “do
not contain ketones, but affect the body in such a way as to cause the body to produce
ketones as a by-product as a result of the ingredients.” 7 TTABVUE 6. The goods
identified in the involved application are not in that category, but rather in the
category of “supplements [that] contain ketones as an ingredient.” Id. We find that
the third-party registrations do not rebut the Examining Attorney’s showing that
KETO//SALT is merely descriptive of the ingredients and nature of Applicant’s goods
identified as “dietary and nutritional supplements containing ketones” and “ketone-
based sodium salt.” The proposed mark KETO//SALT is thus ineligible for
registration on the Principal Register without a showing of acquired distinctiveness.
B. Serial No. 87138792 (KETO//KOFFEE)
Because the word KETO is the first word in the proposed mark KETO//KOFFEE,
the arguments and evidence in this appeal overlap to a significant degree with their
counterparts in Serial No. 87138771,42 and we will focus in this appeal on the
arguments and evidence directed to the word KOFFEE and its impact, when
combined with KETO in the proposed mark, on the perception of the mark as a whole.
We again begin by discussing the nature of Applicant’s goods as identified and
explained by Applicant. Applicant originally sought registration of KETO//KOFFEE

42 As discussed above, we have sustained the Examining Attorney’s objections to
consideration of the third-party registrations attached to Applicant’s reply brief in this appeal
and have considered only the list of registrations and related information made of record by
Applicant during prosecution and repeated in its main brief.
Serial Nos. 87138771 and 87138792 (Consolidated)
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for “dietary and nutritional supplements.” In response to an information request,
Applicant acknowledged that its goods “are a coffee or other beverage additive
containing ketones that serve as a dietary and nutritional supplement providing
health benefits such as weight loss, blood sugar balance, preservation and promotion
of muscle mass, and improved energy levels and athletic performance.”43 Applicant
amended its identification of goods to read “dietary and nutritional supplements
containing ketones.” In its main brief, Applicant acknowledges that its “goods are a
beverage additive that may be used with coffee or other beverages.” 7 TTABVUE 6.
The Examining Attorney’s basic argument here is very similar to her argument in
the KETO//SALT appeal: “[T]he individual components of the proposed mark and
combination of terms, in the context of applicant’s goods merely describes an
ingredient and use of the goods.” 9 TTABVUE 6. She argues that the suffix element
KOFFEE “is a novel spelling that is the phonetic equivalent for the term ‘coffee’ which
means a ‘beverage consisting of a decoction or infusion of the roasted ground or
crushed seeds of the two-seeded fruit of certain coffee trees.’” Id.44 She notes that
Applicant’s identification of goods states that they contain ketones, and argues that
Applicant’s “goods are a coffee (or other beverage) additive containing ketones that
serve as a dietary and nutritional supplement.” Id. She points to evidence from
Applicant’s website that she claims “demonstrates how the applicant markets its
goods for use with coffee,” and third-party websites that show the use of dietary

43 May 30, 2017 Response to Office Action at 1.
44 November 28, 2016 Office Action at 44 (infoplease.com).
Serial Nos. 87138771 and 87138792 (Consolidated)
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supplements as an additive to coffee. Id. at 8-9. She concludes that “consumers who
perceive the applicant’s mark combining KETO and the phonetic equivalent for
‘coffee’ would most likely perceive that the applicant’s supplements containing
ketones are intended for use with coffee.” Id. at 7.
Applicant’s arguments with respect to the significance of the term KETO in the
applied-for mark KETO//KOFFEE, 7 TTABVUE 6-7, 14-15, are virtually identical to
those advanced in the KETO//SALT appeal. With respect to the significance of the
term KOFFEE, Applicant argues that because its “goods do not contain coffee or
coffee beans as ingredients and are not coffee, coffee substitutes, coffee flavored, coffee
colored, or look like coffee in any way, the term ‘koffee’ does not describe Applicant’s
goods.” Id. at 13.45 Applicant criticizes the Examining Attorney’s theory that the word
KOFFEE “is descriptive because it conveys that Applicant’s supplements ‘are to be
used with coffee,’” id., and argues that “the term ‘koffee’ requires the exercise of
mature thought or a multi-stage reasoning process to connect to a possible use of
Applicant’s dietary and nutritional supplements,” id., and to reach a conclusion as to
the nature of the goods.” Id. at 14.
For the reasons discussed above in the KETO//SALT appeal, we find that the word
KETO in the proposed mark KETO//KOFFEE merely describes an ingredient of

45 By making these arguments, Applicant effectively concedes that KOFFEE is the phonetic
equivalent of COFFEE and would be understood as such by consumers. A novel spelling or
misspelling of a merely descriptive word or term is also merely descriptive if consumers would
perceive the different spelling as the equivalent of the descriptive word or term. See, e.g.,
Calphalon, 122 USPQ2d at 1164 (holding that SHARPIN, the phonetic equivalent of
“sharpen,” was merely descriptive of knife blocks with built-in sharpeners); In re Carlson, 91
USPQ2d 1198, 1203 (TTAB 2009) (holding that URBANHOUZING would be perceived by
consumers as the equivalent of the descriptive term “urban housing”).
Serial Nos. 87138771 and 87138792 (Consolidated)
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Applicant’s “dietary and nutritional supplements containing ketones.” With respect
to the word KOFFEE, we find that consumers of Applicant’s “dietary and nutritional
supplements containing ketones,” which Applicant explains are “a beverage additive
that is complementary to and may be used with coffee or other beverages,” 7
TTABVUE 13, are likely to understand KOFFEE as describing a feature, function, or
purpose of Applicant’s “dietary and nutritional supplements containing ketones,”
namely, that they are intended for and suitable for use in coffee.
The record shows the promotion of the addition of MCT oil and butter to coffee in
a “Recipe for Fat Burning Keto Coffee”:

Serial Nos. 87138771 and 87138792 (Consolidated)
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46
Applicant similarly offered a recipe for a beverage called “KETO//KOFFEE” on its
website:
47

46 July 24, 2017 Office Action at 177.
47 February 10, 2018 Denial of Request for Reconsideration at 7.
Serial Nos. 87138771 and 87138792 (Consolidated)
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As an alternative to the creation of the beverage called “KETO//KOFFEE,” made from
Applicant’s recipe, and as “an easier way to make your coffee limitless,” Applicant
touted the addition of its KETO//KREME supplement to coffee:
48
49
We must evaluate the descriptiveness of KETO//KOFFEE in “relation to the
particular goods for which registration is sought, the context in which it is being used,
and the possible significance that the term would have to the average purchaser of

48 November 28, 2016 Office Action at 12.
49 Id. at 14.
Serial Nos. 87138771 and 87138792 (Consolidated)
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the goods because of the manner of its use or intended use.” Chamber of Commerce,
102 USPQ2d at 1219. Against that backdrop, including Applicant’s recipe for
“KETO//KOFFEE,” we find that the word KOFFEE in the proposed mark
immediately describes the intended use of Applicant’s supplements in coffee, and that
the Examining Attorney showed prima facie that when the descriptive word KETO
is combined with the descriptive word KOFFEE, the proposed mark KETO//KOFFEE
does not convey “any distinctive source-identifying impression contrary to the
descriptiveness of the individual parts,” Fat Boys, 118 USPQ2d at 1516, and “the
combination results in a composite that is itself merely descriptive.” Id.
Applicant did not rebut that showing. For the reasons discussed above in Serial
No. 87138771, Applicant’s arguments with respect to the meaning of the word KETO
in the proposed KETO//KOFFEE mark are no more persuasive here than they were
in the KETO//SALT appeal.50 Applicant never addresses the Examining Attorney’s
evidence regarding the descriptive nature of the word KOFFEE (the phonetic
equivalent of “coffee”) in the proposed KETO//KOFFEE mark, including the evidence
of Applicant’s own quasi-generic use of the proposed mark in its recipe for
“KETO//KOFFEE.” Instead, Applicant argues that “the Examining Attorney overly
expands the trademark definition of ‘use’ for purposes of determining

50 Applicant relies heavily in its main brief on the putative third-party registration evidence,
7 TTABVUE 11-12, and its reply brief is essentially confined to its response to the Examining
Attorney’s objection to that evidence and to a discussion of its significance. 12 TTABVUE 6-
9. The list of registrations and the related information that we have considered over the
Examining Attorney’s objection do not rebut the record evidence showing that
KETO//KOFFEE as a whole is merely descriptive, for the reasons that we rejected the third-
party registrations themselves as rebuttal evidence in Serial No. 87138771.
Serial Nos. 87138771 and 87138792 (Consolidated)
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descriptiveness,” claiming that the “‘use’ of Applicant’s product is as a beverage
additive” and that “[t]o describe its use, Applicant’s products would have to be coffee
or a coffee substitute.” 7 TTABVUE 13-14. According to Applicant, because its
“product cannot be used as coffee or as a coffee substitute, the term ‘koffee’ cannot
immediately convey or describe its use.” Id. at 14. We again disagree.
The Board has long held that a proposed mark that describes the intended use or
purpose of the goods is merely descriptive. See, e.g., In re G. E. Smith, Inc., 138 USPQ
518, 519 (TTAB 1963) (finding that KOLD KURE was merely descriptive of foundry
core and mold binder compositions because it was the phonetic equivalent of COLD
CURE, which “merely described the intended use of the product--an ingredient used
in the cold cure process of making cores or molds”); In re The Clorox Co., 196 USPQ
140, 142 (TTAB 1977) (finding that ERASE was merely descriptive of laundry soil
and stain remover because it “immediately describe[d] to the average purchaser of
household detergents the purpose and function of applicant’s product”). Applicant’s
website states that “[c]offee is the perfect delivery method” for the introduction of fats
into the body for the purpose of stimulating ketosis,51 that Applicant’s goal was to
“supercharge a humble cup of coffee in less than 30 seconds,”52 and that Applicant’s
supplements achieved this goal because they can “turn coffee into brain+body fuel in
15 seconds.”53 Given these statements, Applicant’s recipe for “KETO//KOFFEE,”

51 November 28, 2016 Office Action at 12.
52 Id. at 13.
53 Id. at 10.
Serial Nos. 87138771 and 87138792 (Consolidated)
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Applicant’s explanation that its “dietary and nutritional supplements containing
ketones” are “a beverage additive that may be used with coffee or other beverages,” 7
TTABVUE 6, and the other record evidence about the addition of ketones to coffee,
we find that consumers would understand the proposed mark KETO//KOFFEE to
describe a key feature, function, or purpose of Applicant’s goods, namely, that they
are intended to be used as an additive to coffee to create the beverage that Applicant
called “KETO//KOFFEE.” The proposed mark KETO//KOFFEE is merely descriptive
of Applicant’s goods, and is thus ineligible for registration on the Principal Register
without a showing of acquired distinctiveness.
Decision: The refusals to register KETO//SALT in Application Serial No.
87138771 and KETO//KOFFEE in Application Serial No. 87138792 are affirmed.