Pure Plant Beauty, Inc.

Trademark Trial and Appeal Board

Aug 23, 2007

No. 78551219 (T.T.A.B. Aug. 23, 2007)

Mailed:
August 23, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Pure Plant Beauty, Inc.
________

Serial No. 78551219
_______

Amanda V. Dwight of Dwight Law Group for Pure Plant Beauty,
Inc.

John S. Yard, Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).
_______

Before Seeherman, Drost and Zervas, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Pure Plant Beauty, Inc., assignee of Tina Rocca
Lundstrom, has appealed from the final refusal of the
Trademark Examining Attorney to register PURE PLANT BABY
for the following goods in Class 3:
Skin care products, namely, facial
cleansers, under eye creams, facial
creams, facial emulsions, facial masks,
and facial scrubs; body care products,
namely, body creams and lotions, hand
creams and lotions, personal
deodorants, body scrubs, exfoliants for
the face and body, non-medicated foot
creams and lotions, massage oils; bath
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78551219
2
products, namely, bath and shower gels,
bath and shower foams, bubble baths,
milk baths, non-medicated bath salts,
bath oils, bath crystals, bath pearls,
body washes, bath powder, and skin
soap; color cosmetics; scented
products, namely, perfumes, potpourri,
essential oils for personal use, and
essential oils for use in the
manufacture of scented products; and
hair care products, namely, hair care
preparations, hair cleaning
preparations, hair conditioners, hair
rinses, and hair styling preparations.1

Registration has been refused pursuant to Section 2(e)(1)
of the Trademark Act, 15 U.S.C. §1052(e)(1), on the ground
that applicant’s mark is merely descriptive of its
identified goods.
Applicant and the Examining Attorney have filed
briefs. In its brief applicant states, at footnote 1, that
“the examining attorney also references the attached pages
from the applicant’s website,” and states that these pages
show that applicant manufactures and sells candles.
Applicant did not attach any pages to its brief, nor does
it appear that any of the website pages submitted by the
Examining Attorney are from applicant’s current or previous
website. In any event, to the extent that applicant had
intended to submit pages from its website with its appeal

1 Application Serial No. 78551219, filed on January 20, 2005,
based on Section 1(b) of the Trademark Act (intent-to-use).

Ser No. 78551219
3
brief, such evidence would be untimely if it had not been
submitted prior to the filing of the appeal. See Trademark
Rule 2.142(d). On another point with respect to
applicant’s brief, we note that in many instances applicant
failed to provide USPQ citations for the cases it cited.
“When cases are cited in a brief, the case citation should
include a citation to The United States Patent Quarterly
(USPQ), if the case has appeared in that publication.”
TBMP §801.03. As for the Examining Attorney’s brief, he
states, at footnote 2, that applicant’s mark is part of a
family of PURE PLANT marks for similar goods, and this
emphasizes the unitary nature of the “pure plant” component
of the mark. He apparently bases this assertion on the
fact that applicant claimed ownership of two applications,
Serial No. 78405148 for PURE PLANT SPA and No. 78516603 for
PURE PLANT BEAUTY, which had originally been cited as
potential bars to the registration of the subject
application. A mere claim of ownership of two applications
(one of which has been published and for which a notice of
allowance has issued, and the other of which has been
abandoned) does not establish a family of marks, nor does
it establish that PURE PLANT is a unitary term.
It is the Examining Attorney’s position that PURE
PLANT BABY “immediately and logically describes that
Ser No. 78551219
4
applicant’s goods are cosmetic, bath and body products for
babies which feature pure plant content, extracts, oils or
derivatives.” Brief, p. 5. Specifically, the Examining
Attorney asserts that “pure plant” is a term of art which
denotes something derived entirely from plants, such as
pure plant extracts, oils, essential oils or other
ingredients, while “baby” means a very young child, and
that when these terms are combined as PURE PLANT BABY “the
mark immediately and directly conveys information about the
goods, namely, that the goods are pure plant based products
for babies.
In support of his position the Examining Attorney has
made of record definitions of the individual words in the
mark,2 as well as excerpts of articles taken from the NEXIS
database, and from websites, including the following:3
Pure: 1. Having a homogeneous or
uniform composition; not mixed: pure
oxygen. 2. Free from adulterants or
impurities: pure chocolate.

Plant: 1. Botany. a. Any of various
photosynthetic, eukaryotic,
multicellular organisms of the kingdom
Plantae characteristically producing
embryos, containing chloroplasts,

2 The definitions are taken from The American Heritage
Dictionary of the English Language, 3d ed. © 1992.
3 We have not given any weight to the NEXIS evidence of articles
taken from foreign publications, or foreign websites, since we
cannot determine to what extent customers in the United States
have been exposed to them.
Ser No. 78551219
5
having cellulose cell walls, and
lacking the power of locomotion.
b. A plant having no permanent woody
stem; an herb.

Baby: 1. a. A very young child; an
infant.

The aromatherapy collection includes
scented soap, body wash, oil, lotion
and bath salts, all handmade with pure
plant ingredients from a farm in the
small Czech village of Ostra.
“The Dallas Morning News,” May 5, 2005

We suggest Aveda Tourmaline Charged
Protecting Lotion SPF 15 ($38;
aveda.com), prepared with pure plant
extracts plus the mineral tourmaline….
“Natural Health,” February 1, 2005

The line, available at Bath &
Bodyworks, offers products such as
Elasticity Belly Oil, which contains
pure plant extracts that aim to prepare
skin for stretching.
“Omaha World-Herald,” September 9, 2004

The addition of pure plant essential
oils transforms Gautreau’s recipe into
body bars that offer both rich lather
and natural herbal properties.
“Daily World,” August 1, 2004

Boots Botanics--plant-based skin, hair,
cosmetics, bath, body and aromatherapy
products merging high technology with
pure plant extracts.
“Chain Drug Review,” April 12, 2004

Services include Swedish and deep
tissue massage; body wraps such as salt
glow, seaweed and pure plant extract;….
“Ventura County Star,” February 29,
2004

Ser No. 78551219
6
…a list of fragrances to hunt for,
which usually fluctuates around 30
items—anything from inexpensive sprays
thinly diluted with water or alcohol to
rare perfumes with high concentrations
of pure plant extract.
“Orlando Sentinel,” September 3, 2003

Total Double Serum, an extra-firming
potion by Clarins, has been souped up
with more pure plant extracts to
hydrate and revitalize skin.
“Pittsburgh Post-Gazette,” June 8, 2003

Create an at-home facial with the June
Jacobs Spa collection. The new line,
made from pure plant extracts….
“Chicago Tribune,” January 29, 2003

[Listing for product on which
“australian organics” appears as
trademark, and “pure plant soap”
appears as name of product]
Drugstore.com
www.drugstore.com

[Listing for products on which
“Grampa’s Garden” appears as trademark,
and “100% Pure Plant Essential Oil”
appears as product name, below the
scent for each bottle, e.g.,
“Lavender,” “Eucalyptus,” “Peppermint”]
Grampa’s Garden
www.grampasgarden.com

Pure Plant Spa Lotion
[This heading appears on the website
for what appears to be a spa called Ten
Thousand Waves, and is part of the
“Shopping” webpage, under the subgroups
“Bath” and “Aroma Natural.”
The text on the webpage that describes
the products is “Made with organic
botanicals, plant-derived ingredients
and pure essential oils. Four
fragrances: Ginger vanilla, Grapefruit
Ser No. 78551219
7
& Mandarin, Mint & Rosemary, Lavender &
Tangerine.”]
www.tenthousandwaves.com

Baby Blossoms specializes in safe,
gentle, organic aromatherapy skin care
products for babies, children and
anyone with sensitive skin.
Our products are hand-crafted and
formulated with 100% pure essential
oils and pure plant ingredients.
Baby Blossoms
Aroma therapy nectars
www.babyblossoms.com

Weleda Calendula Baby Soap 3.5 oz.
Weleda Calendula Baby Soap gently
cleanses and soothes even the most
delicate skin. With pure plant
ingredients, the beneficial
properties….
Yahoo! Shopping
http://shopping.yahoo.com

A mark is merely descriptive, and therefore prohibited
from registration under the provisions of Section 2(e)(1),
if it immediately conveys knowledge of the ingredients,
qualities or characteristics of the goods or services with
which it is used. In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009 (Fed. Cir. 1987). On the other hand, if a mark is
suggestive, it is registrable. A suggestive mark is one
for which imagination, thought or perception is required to
reach a conclusion as to the nature of the goods or
services. Id. Further, there is but a thin line of
distinction between a suggestive and a merely descriptive
term, and it is often difficult to determine when a term
Ser No. 78551219
8
moves from the realm of suggestiveness into the sphere of
impermissible descriptiveness. In re Recovery, Inc., 196
USPQ 830 (TTAB 1977).
With respect to the Examining Attorney’s position that
applicant’s mark is merely descriptive of goods for babies,
we note that many of the goods listed in the identification
are not products that would be sold for use on babies,
e.g., under eye creams, facial masks, facial scrubs,
personal deodorants, exfoliants for the face and body, and
color cosmetics. However, if a mark is descriptive of any
of the goods or services for which registration is sought,
it is proper to refuse registration as to the entire class.
In re Analog Devices Inc., 6 USPQ2d 1808 (TTAB 1988), aff’d
without pub. op., 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir.
1989). Thus, we consider the question of descriptiveness
in connection with those goods that are appropriate for use
on babies, including soap, body lotion and hair cleaning
preparations (shampoo).
In general, the evidence shows that the words “pure
plant” are used in connection with “extract” or another
term, and modify that term as part of a phrase. In
applicant’s mark, however, because there is no clear term
for PURE PLANT to modify, this can give consumers a mental
pause as they may either wonder what a PURE PLANT is or
Ser No. 78551219
9
does in connection with, for example, BABY lotion or, if
they see PURE as modifying PLANT BABY, the incongruity of
that combination is likely to give them pause. In either
case, this “mental hiccup” is sufficient for us to conclude
that the mark falls on the suggestive side of the
suggestive/descriptive line.
As the case law recognizes, it is often difficult to
determine when a term moves from the realm of
suggestiveness into the sphere of impermissible
descriptiveness. In re Recovery, Inc., supra. We
acknowledge that our decision herein is not free from
doubt, but it is well established that such doubt must be
resolved in favor of the applicant. See In re Merrill
Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4
USPQ2d 1141 (Fed. Cir. 1987), citing In re Aid
Laboratories, Inc., 221 USPQ 1215, 1216 (TTAB 1983) (in
deciding whether PEST PRUF for animal shampoo with
insecticide is suggestive or merely descriptive, doubt is
resolved in favor of applicant in holding the term merely
suggestive of a possible end result of the use of
applicant's goods); In re Gourmet Bakers, Inc., 173 USPQ
565 (TTAB 1972) (any doubt in determining the
registrability of THE LONG ONE for bread is resolved in
favor of applicant “on the theory that any person who
Ser No. 78551219
10
believes that he would be damaged by the registration will
have an opportunity ... to oppose the registration of the
mark and to present evidence, usually not present in the ex
parte application, to that effect”).
Decision: The refusal of registration is reversed.