Spartan Brands, Inc.

Trademark Trial and Appeal Board

Sep 23, 2015

No. 86111061 (T.T.A.B. Sep. 23, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: September 23, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Spartan Brands, Inc.
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Serial No. 86111061
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Philip Y. Braginsky and Amy B. Goldsmith of Tarter Krinsky & Drogin LLP,
for Spartan Brands, Inc.
Douglas M. Lee, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
_____

Before Quinn, Kuhlke and Cataldo,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Spartan Brands, Inc. (“Applicant”) seeks registration on the Principal Register of
the mark CITRUS ENERGY (in standard characters) for
vitamins and nutritional supplements and dietary and
nutritional supplemental drinks in the nature of vitamin
and mineral beverages in International Class 5.1

1 Application Serial No. 86111061 was filed on November 5, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
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The Trademark Examining Attorney has refused registration of Applicant’s
mark as merely descriptive of Applicant’s goods under Section 2(e)(1) of the
Trademark Act.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeal was resumed. We affirm the refusal to register.
Procedural History
As originally filed, the application included
Hair care preparations, namely, shampoos and
conditioners, hair cream, hair gel, hair spray; non-
medicated skin care preparations, namely, hand lotions,
face and body lotions, skin lotions, body cream, hand
cream, skin soap, body wash for humans, facial cleansers,
skin cleansers, body scrubs and facial scrubs in
International Class 3.
The Examining Attorney refused registration for the goods in International Class 3
absent a disclaimer for the word CITRUS and, as noted above, refused registration
for the goods in International Class 5 based on mere descriptiveness of the entirety
of the proposed mark CITRUS ENERGY.
Applicant filed two requests for reconsideration. The second request resolved the
outstanding requirement that Applicant disclaim the term CITRUS in connection
with the goods listed in International Class 3. On the same day the Examining
Attorney accepted Applicant’s amendment to disclaim the word CITRUS, Applicant
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filed a request to divide, and a child application (Serial No. 86976437) was created
for the goods in International Class 3.2
Mere Descriptiveness
The test for determining whether a mark is merely descriptive is whether it
immediately conveys information concerning a significant quality, characteristic,
function, ingredient, attribute or feature of the product or service in connection with
which it is used, or intended to be used. In re Chamber of Commerce of the U.S., 675
F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). See also In re Oppedahl &
Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (quoting Estate
of P.D. Beckwith, Inc. v. Commissioner, 252 U.S. 538, 543 (1920) (“A mark is merely
descriptive if it ‘consist[s] merely of words descriptive of the qualities, ingredients or
characteristics of’ the goods or services related to the mark.”)). See also In re
TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015). The
determination of whether a mark is merely descriptive must be made “in relation to
the goods [or services] 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 the goods because of the manner of its use or intended use.” In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) (citing In
re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). It is not
necessary, in order to find a mark merely descriptive, that the mark describe each
feature of the goods or services, only that it describe a single, significant ingredient,

2 The child application published for opposition on July 7, 2015 and a notice of allowance
issued on September 1, 2015.
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quality, characteristic, function, feature, purpose or use of the goods or services.
Chamber of Commerce of the U.S., 102 USPQ2d at 1219; In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987).
Where a mark consists of multiple words, the mere combination of descriptive
words does not necessarily create a nondescriptive word or phrase. In re Phoseon
Tech., Inc., 103 UPQ2d 1822, 1823 (TTAB 2012); In re Associated Theatre Clubs Co.,
9 USPQ2d 1660, 1662 (TTAB 1988). If each component retains its merely
descriptive significance in relation to the goods or services, the combination results
in a composite that is itself merely descriptive. Oppedahl & Larson LLP, 71
USPQ2d at 1371. However, a mark comprising a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
nondescriptive meaning, or if the composite has a bizarre or incongruous meaning
as applied to the goods or services. See generally In re Colonial Stores Inc., 394 F.2d
549, 157 USPQ 382 (CCPA 1968). See also In re Shutts, 217 USPQ 363, 364-65
(TTAB 1983). Finally, to the extent there is any doubt on this issue, such doubt
must be resolved in favor of Applicant. In re Intelligent Medical Systems Inc., 5
USPQ2d 1674, 1676 (TTAB 1987) (“where reasonable men may differ, it is the
Board’s practice to resolve the doubt in applicant’s favor and publish the mark for
opposition”).
Evidence and Argument
It is the Examining Attorney’s position that CITRUS ENERGY is merely
descriptive of Applicant’s goods because (1) ENERGY “is descriptive of the intended
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benefit, result or purpose of the vitamins, nutritional supplements, and/or vitamin
and mineral beverages, namely, an increase or boost in one’s vigor, power or
capacity for work or vigorous activity.” Ex. Att. Br., 18 TTABVUE 5. As to the word
CITRUS, the Examining Attorney argues that in view of the disclaimer, Applicant
has conceded the descriptive nature of the wording “CITRUS.” Further, the
Examining Attorney asserts that the record indicates “citrus” is a common
ingredient and/or flavor in vitamins, nutritional supplements and nutritional
supplement beverages, including energy drinks. 18 TTABVUE 8.3
In support of his refusal, the Examining Attorney has made of record the
following dictionary definition for the word ENERGY:
Energy: The capacity for work or vigorous activity; vigor;
power.4
In addition, the Examining Attorney submitted printouts from several third-
party websites (1) showing citrus is a common ingredient and/or flavor in
nutritional supplement and nutritional supplement beverages, including energy
drinks and (2) the word energy is used to describe the intended outcome or purpose

3 The Examining Attorney initially also argued, inter alia, that the wording CITRUS
ENERGY is merely descriptive of Applicant’s vitamin and mineral beverages because
“energy” indicates the vitamin and mineral beverages are in the nature of energy drinks.
Office Action December 30, 2013, TSDR p. 1; Office Action July 10, 2014, TSDR p. 1. In the
January 21, 2015 denial of Applicant’s request for reconsideration, the Examining Attorney
continued to characterize Applicant’s goods as “citrus flavored energy drinks” but noted
that “the refusals and evidence support the refusal for vitamin and mineral drinks even
though they may not fall into the category of ‘energy drink.’” This line of argument is
discussed infra.
4 www.thefreedictionary.com based on THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (4th ed. 2000), December 30, 2013 Office Action, TSDR p. 2.
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of vitamins, nutritional supplements, vitamins and/or nutritional beverages. A few
examples are set forth below:
5
6 7 8
9 10
11 12 13 14

5 www.luckyvitamin.com, December 30, 2013 Office Action, TSDR p. 73.
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15 16 17
18
19

6 www.pepsicobeveragefacts.com, Id., TSDR p. 81.
7 www.puritan.com, July 10, 2014 Office Action, TSDR p. 2.
8 www.vitacost.com, Id., TSDR p. 6.
9 www.nowfoods.com, Id., TSDR p. 35.
10 www.drugstore.com, Id., TSDR p. 37.
11 www.gnc.com, Id., TSDR p. 14.
12 www.walmart.com, Id., TSDR p. 20.
13 Id., TSDR p. 22.
14 www.walgreens.com, TSDR p. 23.
15 www.revhoney.com, January 21, 2015 Office Action, TSDR p. 13.
16 www.walmart.com, Id., TSDR p. 15.
17 http://store.realtree.com, TSDR p. 36.
18 http://www.examiner.com, TSDR p. 39.
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Finally, the Examining Attorney points to several third-party registrations
where the term ENERGY has been disclaimed in marks that are for similar goods,
the marks registered based on acquired distinctiveness under Section 2(f), or issued
on the Supplemental Register. See, e.g., Reg. No. 3996097 (DR. SCHULZE’S
ENERGY “SHOT” for herbal supplements, “ENERGY ‘SHOT’” disclaimed); Reg. No.
4030735 (MONSTER ENERGY EXTRA STRENGTH NITROUS TECHNOLOGY
for, inter alia, nutritional supplements in liquid form, carbonated energy drinks,
soft drinks enhanced with vitamins, minerals, nutrients, proteins, amino acids,
and/or herbs, “ENERGY EXTRA STRENGTH NITROUS TECHNOLOGY”
disclaimed); Reg. No. 4392762 (ERUPTION EFFERVESCENT ENERGY for dietary
supplements, “ENERGY” disclaimed); Reg. No. 4370628 (STARZ ENERGY for
dietary supplemental drinks, energy drinks, “ENERGY” disclaimed); Reg. No.
4321702 (SEXY SKINNY ENERGY for, inter alia, meal replacement drinks for use
as a food fillers [sic], diet capsules, meal replacement bars, “ENERGY” disclaimed);
Reg. No. 4419225 (REAL ENERGY for nutritional supplements, “ENERGY”
disclaimed); Reg. No. 4183438 (WORX ENERGY for nutritional supplements in
liquid form, “ENERGY” disclaimed); Reg. No. 4346215 (FULL TIME ENERGY for
herbal supplements for boosting energy, “ENERGY” disclaimed); Reg. No. 4360546
(4D CLEAN ENERGY for, inter alia, dietary beverage supplements for human
consumption in liquid and dry mix form for therapeutical purposes; dietary
supplemental drink; dietary supplemental drinks in the nature of vitamin and

19 http://mystore.capcoff.com, TSDR p. 44.
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mineral beverages; liquid nutritional supplement; vitamin and mineral
supplements, “ENERGY” disclaimed); Reg. No. 4432061 (ENERGY SERJ for
dietary supplements, namely, royal jelly dietary supplement, “ENERGY”
disclaimed); Reg. No. 4389783 (ENERGY O2 for dietary supplements registered on
the Supplemental Register); Reg. No. 4331477 (LASTING ENERGY for herbal
dietary supplements registered under Section 2(f)); and Reg. No. 4456582
(SPORTMAX ENERGY for nutritional supplements, “ENERGY” disclaimed).20
Based on this evidence, the Examining Attorney concludes that CITRUS
ENERGY “merely describes features of applicant’s goods, namely, vitamins,
nutritional supplements, and vitamin and mineral beverages that are (1) intended
to increase or boost one’s vigor, power or capacity for work or vigorous activity; and
(2) feature citrus as an ingredient and/or flavor.” Ex. Att. Br., 18 TTABVUE 16.
Applicant argues that its proposed mark is not merely descriptive because
“‘citrus energy’ (a) is nonstandard usage of the terms ‘citrus’ and ‘energy’ together;
(b) does not make grammatical sense (as modification of the noun ‘energy’ by the
adjective ‘citrus’ is grammatically nonsensical); and (c) does not make scientific
sense (as the scientific concept of energy can never be characterized as citrus, and
thus, there is no such thing as ‘citrus energy’).” App. Br., 12 TTABVUE 8.
Applicant explains that “[t]he standard, grammatical and scientific usage and
understanding of CITRUS ENERGY as a whole does not immediately convey that it
is to be used in connection with vitamins and nutritional supplements and dietary

20 December 30, 2013 Office Action, TSDR pp. 15-50, 110-121.
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and nutritional supplemental drinks in the nature of vitamin and mineral
beverages.” 12 TTABVUE 8-9. This analysis is flawed because it does not take into
account the meaning of CITRUS ENERGY when viewed by the potential purchaser
in connection with the goods, i.e., knowing what the goods are. Chamber of
Commerce of the U.S., 102 USPQ2d at 1219 (quoting Bayer Aktiengesellschaft, 82
USPQ2d at 1831)).
Applicant also challenges the evidence submitted to support the refusal. In
particular, Applicant asserts that the evidence only shows the words “separated by
or joined with additional, modifying words” or with “products that are energy
drinks, in contrast to Applicant’s intended goods, which are not energy drinks
(because among other reasons, energy drinks typically contain caffeine, and
Applicant’s intended goods contain vitamins and minerals, which do not make them
‘energy drinks’).” App. Br., 12 TTABVUE 9 (emphasis in original). More specifically,
Applicant explains that
[T]here are no examples of the words “citrus” and
“energy” both (1) together and (2) used in connection with
vitamins and nutritional supplements and dietary and
nutritional supplemental drinks in the nature of vitamin
and mineral beverages. All instances of the words “citrus”
and “energy” together refer to energy drinks. As
mentioned above, Applicant’s products are not energy
drinks. That is, these examples further support
Applicant’s position that the term ‘citrus energy’ is itself a
nonstandard usage of the terms “citrus” and “energy” and
accordingly, further establish that some reasoning or
imagination are necessary for consumers to determine the
attributes or characteristics of the goods associated with
Applicant’s mark.
App. Br., 12 TTABVUE 9-10 (emphasis in original).
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Applicant argues that this assumption on the part of the Examining Attorney
that the goods could be considered energy drinks is incorrect, colors his analysis and
his conclusion of mere descriptiveness is “flawed as a result.” App. Reply Br., 19
TTABVUE 6.
It is the Examining Attorney’s position that the identification “vitamin and
mineral beverages” encompasses “energy drinks” because there is no “hard
definition” as to what constitutes an “energy drink.” Ex. Att. Br., 18 TTABVUE 19.
However, he continues, “even assuming that applicant’s goods would not include
‘energy drinks’, the evidence of record demonstrates that the term ‘energy’ is
descriptive of the intended health benefit, namely, an increase or boost in one’s
vigor, power or capacity for work or vigorous activity, and that the term ‘citrus’ is
descriptive of the ingredient or flavor of these goods.” Id.
We note that “energy drink” is defined as “a drink intended to boost mental
energy, typically containing sugar and caffeine or other stimulants.”21 While this
definition indicates such drinks “typically” include caffeine, it does not definitively
exclude drinks without caffeine. In addition, Applicant’s identification does not
exclude caffeine as an ingredient in its drinks. However, the “energy drinks”
included in the record appear to contain caffeine. In view of the lack of clarity on
this point, we restrict our analysis of the record with the assumption that

21 Dictionary.com based on RANDOM HOUSE DICTIONARY (2015) (dictionary.reference.com).
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
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Applicant’s beverages are a type separate from “energy drinks.” Thus, we do not
rely on the examples of CITRUS ENERGY used together on energy drinks shown
above.
Analysis
We find the proposed mark CITRUS ENERGY is merely descriptive of the
applied-for goods. Each word describes a significant feature of nutritional
supplements, whether in pill, powder or liquid form. Applicant asserts that it “did
not intend to and has not agreed to disclaim ‘CITRUS’ with respect to International
Class 5 …” such that the Examining Attorney may not rely on this disclaimer to
support a mere descriptiveness refusal.22 App. Reply Br., 19 TTABVUE 5. Based on
this record, we need not and do not rely on a disclaimer for purposes of this decision.
The word “citrus” is used by purveyors of nutritional supplements to indicate an
ingredient or flavor. The word “energy” is used by others in the field to indicate a
significant benefit or purpose of the goods – to provide the consumer with energy.
Moreover, the clearly descriptive nature of the individual words, “citrus” and
“energy,” is not lost when the words are combined to form CITRUS ENERGY. When
viewed on the package of vitamin and nutritional supplements or the bottle of the
vitamin and mineral beverage it takes no imagination to conclude that “citrus” is an
ingredient or at least a flavor of the goods and the intended purpose of the goods is

22 We note that further in the brief Applicant offers to disclaim “CITRUS” if the mere
descriptiveness refusal is withdrawn. App. Reply Br., 19 TTABVUE 7.
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to provide the consumer with “energy.”23 There is no incongruity present in this
combination. There is no double entendre, no redundancy or anything else to create
a commercial impression separate from the descriptive meaning of the terms.
Finally, the fact that an Applicant may be the first or only user of a merely
descriptive designation does not necessarily render the wording inherently
distinctive. In re Phoeseon Tech., Inc., 103 USPQ2d 1822, 1826 (TTAB 2012); In re
Sun Microsystems, Inc., 59 USPQ2d 1084, 1087 (TTAB 2001). See also TMEP
§1209.03(c) (2015) and authorities cited therein.
Pointing to the USPTO’s “Consistency Initiative” created to facilitate uniform
treatment of applications under the Trademark Act,24 Applicant also argues that
the Examining Attorney’s position is inconsistent with the approval of Applicant’s
other application for the mark CITRUS ENERGETICS which was passed to
publication. Applicant did not make this application of record in this proceeding. We
further note that although the referenced exhibits were not actually attached to the
reply brief, had they been so attached they would have been untimely. Trademark
Rule 2.142(d); In re Midwest Gaming & Entertainment LLC, 106 USPQ2d 1163,
1165 n.3 (TTAB 2013). See also TBMP § 1207.01 (June 2015). In any event, the
word ENERGETICS, although from the same root, is different from the word

23 We take judicial notice that “citrus” is defined as “1. any small tree or spiny shrub of the
genus Citrus, of the rue family, including the lemon, lime, orange, tangerine, grapefruit,
citron, kumquat, and shaddock, widely cultivated from fruit or grown as an ornamental. 2.
The tart-to-sweet, pulpy fruit of any of these trees or shrubs, having a characteristically
smooth, shiny, stippled skin.” www.dictionary.com based on the RANDOM HOUSE
DICTIONARY (2015).
24 http://www.uspto.gov/trademark/trademark-updates-and-announcements/consistency-
initiative.
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ENERGY. In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (citing In re Atavio
Inc., 25 USPQ2d 1361 (TTAB 1992) (“It has long been acknowledged that there is a
thin line between terms that are merely descriptive and those that are suggestive.”)
Thus, allowance of that application does not on its face violate the USPTO’s
“consistency initiative.”25 In any event, “inconsistency” does not form the basis of an
appeal other than simply to be an additional circumstance to be considered.
Similarly, Applicant references six alleged third-party registrations that
Applicant has not made of record. In addition to not being of record, the references
do not include registration numbers, and if these references are actually
applications they would not have served to support Applicant’s argument. In re
Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1270 n. 8 (TTAB 2009) (quoting
In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1049 n. 4 (TTAB 2002) (“[T]he
third-party applications submitted by applicant have ‘no probative value other than
as evidence that the application was filed.’”); TBMP § 1208.03. Moreover, the
references do not indicate if any of the marks include distinctive design elements or
disclaimers. In any event, as acknowledged by Applicant “[e]ven if some prior
registrations had some characteristics similar to” the current application, “the
PTO’s allowance of such prior registrations does not bind the Board … .” In re Nett
Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001); In re Hunter

25 We note this initiative directs Applicants to bring to the attention of the Office the
inconsistent treatment. Presumably this should occur during prosecution of the application
and be directed to the Trademark Examining Operation. In addition, this initiative seeks to
have the same Examining Attorney examine the “co-pending” applications, which occurred
in this case.
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Fan Co., 78 USPQ2d 1474, (TTAB 2006) (“A mark that is merely descriptive should
not be registered on the Principal Register simply because other such marks appear
on the register.”).
Finally, Applicant argues that
[T]he combination of the terms “citrus” and “energy”
together evokes a unique commercial impression with
regard to vitamins and nutritional supplements and
dietary and nutritional supplemental drinks in the nature
of vitamins and nutritional supplements and dietary and
nutritional supplemental drinks in the nature of vitamin
and mineral beverages. ... The mark CITRUS ENERGY
viewed in its entirety is ambiguous, subject to many
possible interpretations, and thus cannot be considered to
be descriptive of vitamins and nutritional supplements
and dietary and nutritional supplemental drinks in the
nature of vitamin and mineral beverages.
App. Br., 12 TTABVUE 10.
Applicant recites several Board cases wherein it was found that the combination
of merely descriptive terms was incongruous and concluded that they are similar to
the present case (In re John H. Breck, Inc., 150 USPQ 397, 398 (TTAB 1966) (TINT
TONE for hair coloring preparation “[t]he words ‘TINT’ and ‘TONE’ rather than
having distinctly different meanings do overlap in significance [thus] … TINT
TONE is somewhat incongruous or redundant.”; In re Getz Foundation, 222 USPQ
571 (TTAB 1985) (MOUSE HOUSE for museum services “applied to services
involving the public display of these [mouse] memorabilia, it seems to use that the
term MOUSE HOUSE is no less fanciful than is the very notion of a museum
dedicated to this unusual purpose.”); In re Vienna Sausage Manufacturing Co., 156
USPQ 155 (TTAB 1967) (FRANKWURST for wieners “the combination of these
Serial No. 86111061
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terms is incongruous”)). However, Applicant does not explain in what way these
cases are similar to the facts in this case, or what other meanings are evoked by
CITRUS ENERGY used in connection with vitamins and nutritional supplements
and dietary and nutritional supplemental drinks in the nature of vitamin and
mineral beverages. It may be that there is no such specific type of “energy” called
“citrus.” However, given the common use of the word “citrus” to indicate an
ingredient or flavor and “energy” to indicate a desired outcome for supplements in
pill, powder or liquid form, as determined above, these meanings would not be lost
when the two words “citrus” and “energy” are combined to form CITRUS ENERGY.
Decision: The refusal to register Applicant’s mark CITRUS ENERGY is
affirmed.