Split Peak, LLC

Trademark Trial and Appeal Board

Sep 30, 2021

88746083 (T.T.A.B. Sep. 30, 2021)

Mailed: September 30, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re Split Peak, LLC
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Serial No. 88746083
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Kristina M. DiMaggio and Mark D. Bowen of Malin Haley DiMaggio & Bowen, P.A.,
for Split Peak, LLC.
Diane Collopy, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
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Before Cataldo, Pologeorgis, and Johnson,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Split Peak, LLC (“Applicant”) seeks to register on the Principal Register the
stylized mark THE CLEAN HYDRATION COMPANY, as displayed below, for
“Nutritional supplements, namely, electrolyte drink mixes, capsules, effervescent
tablets, and chewable tablets” in International Class 5:1

1 Application Serial No. 88746083 was filed on January 3, 2020, based on an allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b). The description of the mark reads as follows: “The mark consists of the
phrase ‘THE CLEAN HYDRATION COMPANY’ with the word ‘THE’ presented vertically in
lower case to the left of the word ‘CLEAN’ presented in lowercase letters and disposed above
the words ‘HYDRATION COMPANY’ presented in upper case letters.” Color is not claimed
as a feature of the mark.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 88746083
2

The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that
the mark, in its entirety, is merely descriptive of the goods identified in Applicant’s
application.
When the refusal was made final, Applicant appealed. The appeal is fully briefed.
For the reasons explained below, we affirm the refusal to register.2
I. Mere Descriptiveness – Applicable Law
A mark is merely descriptive of goods or services within the meaning of Section
2(e)(1) of the Trademark Act if it conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the goods or services. In re
Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir.
2012); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether
a mark is merely descriptive is determined in relation to the goods or services for
which registration is sought and the context in which the mark is used, not in the
abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200
USPQ2d 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).

2 All TTABVUE and Trademark Status & Document Retrieval (“TSDR”) citations reference
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .pdf version of the documents.
Serial No. 88746083
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In other words, we evaluate whether someone who knows what the goods or services
are will understand the mark to convey information about them. DuoProSS Meditech
Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir.
2012). A mark need not immediately convey an idea of each and every specific feature
of the goods or services in order to be considered merely descriptive; it is enough if it
describes one significant attribute, function or property of the goods or services. See
In re Gyulay, 3 USPQ2d at 1010; In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB
1982); In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973). Moreover, if a mark is
descriptive of some the goods or services identified in a particular class, or even just
one of them, then the whole class of goods or services may be refused. In re Positec
Grp. Ltd., 108 USPQ2d 1161, 1171 (TTAB 2013).
When two or more merely descriptive terms are combined, the determination of
whether the combined mark is also merely descriptive turns on whether the
combination of terms evokes a non-descriptive commercial impression. 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. In
re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004)
(quoting Estate of P.D. Beckwith, Inc. v. Comm’r., 252 U.S. 538, 543 (1920)); see also
In re Tower Tech, Inc., 64 USPQ2d 1314, 1318 (TTAB 2002) (SMARTTOWER merely
descriptive of commercial and industrial cooling towers); In re Sun Microsystems Inc.,
59 USPQ2d 1084, 1087 (TTAB 2001) (AGENTBEANS merely descriptive of computer
programs for use in developing and deploying application programs).
Serial No. 88746083
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On the other hand, a mark comprising a combination of merely descriptive
components is registrable if the combination of terms creates a unitary mark with a
non-descriptive meaning, or if the composite has an incongruous meaning as applied
to the goods or services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) (SUGAR & SPICE for “bakery products”); In re Shutts, 217 USPQ 363,
365 (TTAB 1983) (SNO-RAKE for “a snow removal hand tool having a handle with a
snow-removing head at one end, the head being of solid uninterrupted construction
without prongs”). In this regard, “incongruity is one of the accepted guideposts in the
evolved set of legal principles for discriminating the suggestive from the descriptive
mark.” Shutts, 217 USPQ at 365; see also In re Tennis in the Round, Inc., 199 USPQ
496, 498 (TTAB 1978) (the association of applicant’s mark TENNIS IN THE ROUND
with the phrase “theater-in-the-round” creates an incongruity because applicant’s
services do not involve a tennis court in the middle of an auditorium). Thus, we must
consider the issue of descriptiveness by looking at Applicant’s mark in its entirety.
In determining how the relevant consuming public perceives Applicant’s mark in
connection with its identified goods, we may consider any competent source, including
websites and webpages, newspaper articles and publications, and Applicant’s own
advertising material and explanatory text. See In re N.C. Lottery, 866 F.3d 1363, 123
USPQ2d 1707, 1709-10 (Fed. Cir. 2017); In re Nett Designs, Inc., 236 F.3d 1339, 57
USPQ2d 1564, 1566 (Fed. Cir. 2001) (citing In re Bed & Breakfast Registry, 791 F.2d
157, 229 USPQ 818, 819 (Fed. Cir. 1986)); TRADEMARK MANUAL OF EXAMINING
PROCEDURE (“TMEP”) §1209.01(b) (July 2021).
Serial No. 88746083
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II. Arguments and Evidence
In support of the Section 2(e)(1) refusal, the Examining Attorney submitted the
dictionary definitions of the terms “clean,” “hydrate,” and “company,” as set forth
below:
 “clean” is defined as “free from foreign matter or pollution;
unadulterated.”3

 “hydrate” is defined as “to supply water to a person, for example, in
order to restore or maintain fluid balance.”4

 “company” is defined as “a business enterprise.”5

The Examining Attorney also submitted evidence demonstrating that the word
“clean” is a term of art in the supplement industry.6 Specifically, the term “clean” is
widely used to identify a category of supplements that are free from additives, fillers,
or other harmful ingredients.7 Labeling supplements as “CLEAN” is a common
practice intended to communicate information to the consumer about the nature of
those goods. As example: the screenshots from the website
www.healthytasteoflife.com discusses “Clean supplements” and how to select them.8
Additionally, the Examining Attorney submitted third-party registrations for
goods identical or similar to those of Applicant that include the term CLEAN in the

3 April 1, 2020 Office Action, at TSDR p. 34.
4 Id., at TSDR p. 36.
5 Id., at TSDR p. 35.
6 Id., at TSDR pp. 16-33 and 37-38.
7 Id.
8 Id., at TSDR pp. 37-38.
Serial No. 88746083
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mark and where such term is disclaimed or the mark as a whole was issued on the
Supplemental Register.9
The Examining Attorney also introduced Internet evidence which demonstrates
that the use of “clean” ingredients extends to hydration beverages and supplements
of the type provided by Applicant. The evidence is provided below:10
 www.ultimareplenisher.com – describing its drink mix product that
contains electrolytes and how the drink mix hydrates the body and is not
only Paleo and Keto friendly, but “clean” as well.

 www.amazon.com - describing electrolyte-containing beverages
as “Clean Hydration, Low Cal, Electrolytes, B-Vitamins;

 www.nuunlife.com, - Electrolyte tablet manufacturer touts its
“clean” formulation: “Our products are made with clean electrolytes
for complete hydration;” and

 www.memorandum.com - Third-party review describing
hydration beverages as “Clean Hydration Electrolyte Drinks” “[…]
contains very basic, pronounce-able ingredients so you know you’re
getting hydrated without any other unnecessary stuff in your
drink.”).

As for the term “hydration,” the Examining Attorney submitted screenshots from
the websites of GNC and Liquid IV demonstrating multiple electrolyte supplements
identified as intended for use in supporting hydration.11
Moreover, the Examining Attorney argues that the term “COMPANY” merely
identifies a business enterprise.12 The Examining Attorney further maintains that

9 Id., at TSDR pp. 5-15.
10 October 8, 2020 Final Office Action, at TSDR pp. 19-24.
11 Id., at TSDR pp. 39-40.
12 Examining Attorney’s Brief, p. 4; 6 TTABVUE 5.
Serial No. 88746083
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business type designations and abbreviations such as “Corporation,” “Inc.,”
“Company,” “LLC,” and “Ltd.” or family business designations such as “& Son’s” or
“Bros.” merely indicate Applicant’s business type or structure and generally have no
source-indicating capacity.13 Thus, the Examining Attorney concludes that the term
“company” merely indicates that Applicant’s goods are offered by a business.
Lastly, the Examining Attorney argues that both the individual components of
Applicant’s proposed mark and the composite result are descriptive of Applicant’s
goods and do not create a unique, incongruous, or nondescriptive meaning in relation
to the goods. When combined, the Examining Attorney contends that they retain the
descriptive significance they have as individual terms, and immediately identify a
business enterprise providing preparations for hydration that are free from fillers or
unwanted ingredients; that is, “clean.”14
Based on the foregoing, the Examining Attorney concludes that Applicant’s mark,
when viewed in its entirety, is merely descriptive of Applicant’s identified goods.
In challenging the refusal, Applicant argues that the mark is suggestive of
Applicant’s products. Specifically, Applicant states that “[c]onsumers upon viewing
the mark in connection with the Applicant’s products would not immediately
understand the nature of Applicant’s goods, nutritional supplements which maintain
one’s electrolyte balance with its natural additives.”15 Applicant also contends that

13 Id.
14 Id., at p. 5; 6 TTABVUE 6.
15 Applicant’s Appeal Brief, p. 3; 4 TTABVUE 8.
Serial No. 88746083
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the term “CLEAN” in its proposed mark is suggestive when used in connection with
the goods because the term “CLEAN” has “multiple connotations.”16 Similarly,
Applicant argues that the term “HYDRATION” is “most commonly associated with
beverages or quenching thirst and there is no immediate association here.”17
Finally, Applicant argues that “the combination of terms [in its proposed mark]
creates a unique commercial impression as applied to Applicant’s products,” and that
the stylization of the mark creates a distinct commercial impression “such that the
mark as a whole is all the more registrable.”18
III. Analysis
We are not persuaded by Applicant’s arguments. With respect to Applicant’s
argument that, upon viewing Applicant’s mark, consumers would not immediately
understand the nature of Applicant’s goods, we find this argument is a
mischaracterization of the standard for descriptiveness. The appropriate inquiry is
rather “whether someone who knows what the goods and services are will understand
the mark to convey information about them.” DuoProSS Meditech Corp., 103 USPQ2d
at 1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17
(TTAB 2002)). Thus, whether or not consumers viewing the mark would “immediately
understand the nature” of the goods is not probative on the question of
descriptiveness.

16 Id., at p. 4; 4 TTABVUE 9.
17 Id.
18 Id., at pp. 5-6; 4 TTABVUE 10-11.
Serial No. 88746083
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With regard to Applicant’s argument that the term CLEAN may have multiple
meanings, that fact alone is not controlling on the issue of whether Applicant’s
mark is merely descriptive of Applicant’s identified goods. In re Franklin Cnty.
Historical Soc’y, 104 USPQ2d 1085, 1087 (TTAB 2012) (citing In re Bright-Crest,
Ltd., 204 USPQ 591, 593 (TTAB 1979)); TMEP § 1209.03(e). “It is well settled
that so long as any one of the meanings of a term is descriptive, the term may be
considered to be merely descriptive.” In re Mueller Sports Med., Inc., 126 USPQ2d
1584, 1590 (TTAB 2018) (quoting In re Chopper Indus., 222 USPQ 258, 259
(TTAB 1984)). Here, the evidence of record clearly demonstrates that the term
“CLEAN” is frequently used in a specific manner in Applicant’s industry to refer
to a category of goods that are free from additives, fillers, or other harmful
ingredients. Therefore, as the term has a descriptive significance in Applicant’s
industry, the term may be properly considered to be merely descriptive regardless of
its alternate meanings in other contexts.
As to Applicant’s argument that the term “HYDRATION” is “most commonly
associated with beverages or quenching thirst and there is no immediate association
here,” we disagree. Applicant concedes in its brief that its identified goods “maintain
appropriate electrolyte balance”19 and the evidence of record demonstrates that
electrolyte preparations are consumed for hydration purposes. Moreover, Applicant
replied “Yes […]” to an information request as to whether “applicant’s goods are

19 Id., at p. 5; 4 TTABVUE 10.
Serial No. 88746083
10
intended for or used to promote appropriate hydration.”20 Further, Applicant has also
submitted evidence that it describes as being “similar to the drink mixes Applicant
intends to sell.”21 This evidence depicts an “electrolyte mix” described as a “super
hydration formula.”22 Therefore, based on the evidence of record, we find that
consumers who know what Applicant’s goods are, that is, “electrolyte drink mixes,
capsules, effervescent tablets, and chewable tablets,” will understand the term
“HYDRATION” to refer to a feature and characteristic of those goods.
As for the term “company,” Applicant does not contest that this term merely
indicates the business entity type of Applicant and, therefore, has no source-
indicating significance.
Further, Applicant’s argument that the combination of the terms in its proposed
mark creates a unitary mark with a non-descriptive meaning is similarly unavailing
because Applicant fails to state what this impression is or would be. Instead, we find
that each component of Applicant’s proposed mark retains its merely descriptive or
entity designation significance in relation to Applicant’s identified goods, the
combination of which results in a composite mark that is itself merely descriptive.
Lastly, we acknowledge that Applicant’s proposed mark is displayed in stylized
lettering. Stylized descriptive or generic wording is registrable only if the stylization
creates a commercial impression separate and apart from the impression made by

20 October 1, 2020 Response to Office Action, at TSDR p. 8.
21 Id., at TSDR pp. 7-8.
22 Id., at TSDR p. 8.
Serial No. 88746083
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the wording itself. See In re Cordua Rests., Inc., 823 F.3d 594, 606, 118USPQ2d 1632,
1639-40 (Fed. Cir. 2016); In re Northland Aluminum Prods., Inc., 777 F.2d 1556,
1561, 227 USPQ 961, 964 (Fed. Cir. 1985); TMEP § 1209.03(w). The degree of
stylization in this case, however, is not sufficiently striking, unique, or distinctive so
as to create a commercial impression separate and apart from the unregistrable
components of the mark. See In re Sadoru Grp., Ltd., 105 USPQ2d 1484, 1490 (TTAB
2012) (common and ordinary lettering with minimal stylization is generally not
sufficiently striking, unique, or distinctive as to make an impression on purchasers
separate from the wording).
Here, Applicant’s mark is displayed in a common, sans-serif font with the article
“THE” placed on its side and the term “CLEAN” rendered in font larger than the
words “THE” and “HYDRATION COMPANY.” Neither the font selection nor the
placement of the wording of the mark is so striking, unique, or distinctive in a way
that changes the primary impression of the mark from that of the literal elements
thereof. Moreover, Applicant does not indicate what distinct impression is
engendered by the stylization. Thus, taken together, the mark merely describes a
feature, characteristic, or purpose of the Applicant’s identified goods,
notwithstanding the prominence of the term CLEAN in Applicant’s proposed mark.
IV. Conclusion
We have carefully considered all arguments and evidence of record. Based on this
evidence, we conclude that Applicant’s proposed mark , in its
Serial No. 88746083
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entirety, is merely descriptive of Applicant’s identified goods since the mark merely
describes a primary function or characteristic of Applicant’s identified goods, namely,
nutritional supplements in the nature electrolyte drink mixes, capsules, effervescent
tablets, and chewable tablets that are free or “clean” from additives, fillers, or other
harmful ingredients, the purpose of which is to promote proper hydration. We further
find that the combination of the descriptive terms “clean,” “hydration,” and
“company” does not create a non-descriptive or incongruous meaning. Instead, we
find that each component retains its merely descriptive or entity designation
significance in relation to Applicant’s identified goods, the combination of which
results in a composite mark that is itself merely descriptive. Finally, we do not find
that the stylization of Applicant’s mark creates a distinct commercial impression
separate from the impression made by the wording itself.
Decision: The refusal to register Applicant’s mark on the
Principal Register under Section 2(e)(1) of the Trademark Act on the ground that the
designation, in its entirety, is merely descriptive of Applicant’s identified goods is
affirmed.