Pure Distributors, Inc.

Trademark Trial and Appeal Board

Mar 16, 1998

No. 75010405 (T.T.A.B. Mar. 16, 1998)

Paper No. 9
PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB MARCH 16, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Pure Distributors, Inc.
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Serial No. 75/010,405
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John P. Halvonik for Pure Distributors, Inc.
Steven R. Foster, Trademark Examining Attorney, Law Office
107 (Thomas Lamone, Managing Attorney).
_______
Before Hohein, Hairston and Walters, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Pure Distributors, Inc. has filed an application to
register the mark NUTRITION FOR THE SKIN for “skin creams,
skin lotions, hair shampoo, skin soap, shaving creams,
sun tan lotions and skin moisturizers.”1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
ground that the mark merely describes applicant’s goods.
Ser No. 75/010,405
2
Further, the Examining Attorney has required that applicant
specify the type of commerce in which the mark was first
used and the method of use.
Applicant and the Examining Attorney have filed briefs,
but no oral hearing was requested.
We note that applicant, neither in its appeal brief or
during the prosecution of this case, addressed the
requirements to specify the type of commerce in which the
mark was first used and the method of use. Trademark Rule
2.33 requires, in relevant part, that an application under
Section 1(a) of the Trademark Act specify the nature of the
commerce in which the mark is used and the mode, manner or
method of applying, affixing or otherwise using the mark on
or in connection with the goods. Inasmuch as the
application fails to specify either of the above, we find
the requirements by the Examining Attorney to be proper.
We turn next to the refusal to register under Section
2(e)(1) of the Trademark Act. The Examining Attorney
maintains that the phrase NUTRITION FOR THE SKIN
“immediately apprises the consumer as to a significant
quality, or feature or purpose of [applicant’s] goods, which
in fact, provide nutrition to the skin.” (Final office
action, p. 1)

1 Application Serial No. 75/010,405 filed October 25, 1995;
alleging a date of first use of June 15, 1995 and a date of first
use in commerce of July 20, 1995.
Ser No. 75/010,405
3
In support of the refusal to register, the Examining
Attorney has submitted excerpts of articles taken from the
NEXIS data base. According to the Examining Attorney, these
excerpts show that the term “nutrition” has been used
descriptively in connection with topical skin treatments,
for example:
. . . 1.04-ounce multi-biological cream for $45.
A patented molecule that Biotherm calls a
“microsphere” enhances the diffusion of
Biologics antiaging ingredients, said Aubert.
The ingredients include keratin, animal
protein and hydrolized protein. “It’s giving
nutrition to the skin to balance the effects
of aging,” said Aubert. (Women’s Wear
Daily, December 11, 1987);
. . . Pour Homme Masculus comprises shampoo,
conditioner, grooming gel, facial scrub
shaving cream, after-shave gel, moisturizing
cream and a facial masque. The active
ingredients of each of the products are
botanical extracts, which according to
Michaelson, provide external nutrition to
the skin. (Daily News Record, July 20,
1988);
The new 14-product line is named for its
active ingredients, which the company
developed at the research and development
plant it built in 1989. Precursors, as
they are called in English, are natural-
based ingredients that provide the skin with
nutrition and stimulate the skin’s natural
healing processes, according to the company.
Every item in the line is imbued with
the precursors.
. . . . .
The line is divided into three categories,
each with its own primary function. Soins
Purette, for clarifying the complexion,
includes three cleaning and makeup . . .
(Women’s Wear Daily, March 19, 1993); and
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About 100 people work at the company’s existing
facility in Irvine, which manufactures vitamins
and dietary supplements. The new plant will
turn out Alacer’s line of vitamin and mineral
tablets with a topical nutrition skin-care line.
(Los Angeles Times, March 20, 1996).
Further, the Examining Attorney submitted a copy of a
third-party registration (Registration No. 1,983,777) for
the mark shown below which covers hair and skin care
preparations. The wording NUTRITION & SHINE have been
disclaimed apart from the mark as shown.
Also, the Examining Attorney submitted the following
definitions taken from the Random House Unabridged
Dictionary, 2d. (1993):
nutrition: 1. the act or process of nourishing
or of being nourished. . . 4. food; nutriment.
nutriment: 1. any substance or matter that,
taken into a living organism, serves to
sustain it in its existence, promoting
growth, replacing loss, and providing energy.
2. anything that nourishes, nourishment, food.
Applicant, in urging reversal of the refusal to
register, contends that the word nutrition does not apply to
substances that may be placed on the skin. Applicant
maintains that nutrition, as it is commonly understood,
pertains not to a topical skin care product, but rather to
Ser No. 75/010,405
5
food and/or minerals which are ingested. Applicant states
that its products do not provide nutrition in the commonly
understood sense because the skin does not take in and use
these products in the same manner that food is taken in and
used by the body. In support of its position, applicant
submitted the following definition from Webster’s Seventh
New Collegiate Dictionary (1969):
nutrition: the act or process of nourishing
or being nourished; specif: the sum of
the processes by which an animal or plant
takes in and utilizes food substances.
Further, applicant maintains that the news stories
submitted by the Examining Attorney are not reliable
evidence of how the public views the word nutrition.
A term is considered to be merely descriptive of goods
within the meaning of Section 2(e)(1) of the Trademark Act,
if it immediately describes an ingredient, quality,
characteristic of feature thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods. In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215 (CCPA 1978). It is not necessary that a term
describe all of the properties or functions of the goods in
order for it to be considered to be merely descriptive
thereof; rather, it is sufficient if the term describes a
single significant attribute or idea about them. In re
Venture Associates, 226 USPQ 285 (TTAB 1985). Moreover, the
Ser No. 75/010,405
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question of whether a mark is merely descriptive must be
determined not in the abstract, that is, not by asking
whether one who sees the mark alone can guess what the
applicant’s goods are, but rather in relation to the goods
for which registration is sought, that is, by asking
whether, when the mark is applied to the goods, it
immediately conveys information about their nature. In re
Bright-Crest, Ltd., 104 USPQ 591 (TTAB 1979).
The dictionary evidence establishes that “nutrition”
means “the process of nourishing or being nourished.” While
the ingestion of food and/or minerals into the body is
probably the best known example of this process, the
dictionary evidence does not limit nutrition to only this
process. Moreover, as evidenced by the excerpts retrieved
from the NEXIS database, nutrition is used in describing a
function of topical skin care products. As to applicant’s
contention that the excerpts from the NEXIS data base are
not probative evidence, it is well settled that evidence of
the purchasing public’s understanding of a term may be
obtained from sources such as magazines and newspapers.
In re Northland Aluminum Products, Inc., 777 F.2d 1556, 227
USPQ 961 (Fed. Cir. 1985).
Thus, we agree with the Examining Attorney that when
the mark NUTRITION FOR THE SKIN is considered in relation to
applicant’s skin creams, skin lotions, hair shampoo, skin
Ser No. 75/010,405
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soap, shaving creams, sun tan lotions and skin moisturizers,
it directly conveys to prospective purchasers that these
goods provide nutrition to, i.e., nourish, the skin.
Decision: The requirements to specify the type of
commerce in which the mark was first used and the method of
use are affirmed, and the refusal to register under Section
2(e)(1) of the Trademark Act is affirmed.
G. D. Hohein
P. T. Hairston
C. E. Walters
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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