Stemtech International, Inc.

Trademark Trial and Appeal Board

Apr 24, 2017

No. 86276406 (T.T.A.B. Apr. 24, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: April 24, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Stemtech International, Inc.
_____

Serial No. 86276406
_____

Howard L. Hoffenberg of the Law Offices of Howard L. Hoffenberg,
for Stemtech International, Inc.
John M.C. Kelly, Trademark Examining Attorney, Law Office 119,
Brett J. Golden, Managing Attorney.
_____

Before Kuczma, Heasley and Lynch,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Stemtech International, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark THE STEM CELL NUTRITION COMPANY (in standard
characters, with “NUTRITION COMPANY” disclaimed) under Section 2(f) of the
Trademark Act for “dietary and nutritional supplements for the purpose of
supporting stem cell physiology” in International Class 5.1

1 Application Serial No. 86276406 was filed on May 8, 2014, based upon Applicant’s claim of
first use anywhere and use in commerce since at least as early as November 25, 2008.
Serial No. 86276406
- 2 -
The Trademark Examining Attorney has refused registration of Applicant’s mark
on the ground that the applied-for mark is merely descriptive under Section 2(e)(1) of
the Trademark Act and has not acquired distinctiveness under Section 2(f), 15 U.S.C.
§§ 1052(e)(1), (f)(2), and also on the ground that Applicant has failed to provide
information required under Trademark Rule 2.61(b). 37 CFR § 2.61(b).
When the refusal was made final, Applicant petitioned the Director of the USPTO
to direct the Examining Attorney to withdraw the substantive refusals under Section
2.2 The Director dismissed the petition.3 Applicant then appealed. We affirm the
substantive refusal to register, and the refusal to register based on Applicant’s failure
to comply with appropriate requests for information under Rule 2.61(b).4
I. Descriptiveness
The Lanham Act precludes registration of a term that is merely descriptive of an
Applicant’s goods. 15 USC § 1052(e)(1). A mark is merely descriptive “if it
immediately conveys knowledge of a quality, feature, function, or characteristic of the
goods or services with which it is used.” In re Chamber of Commerce of the United
States of America, 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting
In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)).

2 March 20, 2016 Petition to Director under 37 CFR § 2.146.
3 July 28, 2016 Petition dismissed, noting inter alia that “petitioner’s requested review is not
proper subject matter for a petition because it would require a determination of a substantive
issue concerning descriptiveness and acquired distinctiveness pursuant to Sections 2(e) and
(f). Review of this issue would only be proper subject matter for an appeal to the Trademark
Trial and Appeal Board.”
4 We discuss, infra, which requests were appropriate and why compliance was lacking.
Serial No. 86276406
- 3 -
Applicant has tacitly conceded the descriptiveness of its mark in two ways. First,
it obtained registration of the same mark for the same identified goods on the
Supplemental Register,5 which is prima facie evidence of the mark’s descriptiveness
at the time of registration. In re Highlights for Children, Inc., 118 USPQ2d 1268,
1272-73 (TTAB 2016).6
Second, Applicant now seeks to register the mark on the Principal Register based
on its claim of acquired distinctiveness under Section 2(f). As Applicant puts it, “On

5 Registration no. 3585038, issued on the Supplemental Register on March 3, 2009; TESS
printout, Nov. 13, 2015 Response to Office Action pp. 256-57.
6 Applicant recounts how its earlier application was initially refused registration based on
mere descriptiveness, but was amended to the Supplemental Register. Applicant regards
that amendment as an “upgrading” of the mark “from merely descriptive to descriptive,” and
argues that the Administrative Procedure Act, 15 U.S.C. § 706(2)(A), as well as due process,
requires consistent treatment of its present Application. Applicant’s brief, pp. 5, 9-10, 17-
18, 20, 4 TTABVUE 6, 10-11, 18-19, 21; Applicant’s reply brief pp. 4-8, 7 TTABVUE 5-9. By
this argument, it appears that Applicant perceives a distinction between a term refused
registration as “merely descriptive” and one refused registration as “descriptive,” with a
term categorized as the latter being possessed with more capacity to designate source than
a term categorized as the former. While the argument rings true to the extent that case law
acknowledges that some terms are more highly, or readily, descriptive than others, there is
no such legal distinction in the statute or case law between the designations “merely
descriptive” and “descriptive.”
To be registrable on the Supplemental Register, a mark must be capable of distinguishing
an applicant’s goods or services and not registrable on the Principal Register. 15 U.S.C.
§ 1091. The prior registration of Applicant’s mark on the Supplemental Register means it
was not treated as generic (since generic designations are incapable of distinguishing an
applicant’s goods or services), 15 U.S.C. § 1091(c), but it was still treated as merely
descriptive under Section 2(e)(1). See TMEP § 1209.02(a). Therefore, even though each
application must be considered on its own merits, see In re Nett Designs Inc., 236 F.3d 1339,
57 USPQ2d 1564, 1566 (Fed. Cir. 2001), In re Cordua Rests. Inc., 823 F.3d 594, 118 USPQ2d
1632, 1635 (Fed. Cir. 2016), Applicant’s present Application also is being treated consistently
with its prior application; and its arguments based on the Administrative Procedure Act and
due process are groundless.
In addition, as to the Administrative Procedure Act and alleged inconsistency, see the
Board’s thorough analysis and rejection of a similar argument in In re Wilson, 57 USPQ2d
1863, 1870-1871 (TTAB 2001). As to the due process claim, the Board is an administrative
tribunal and accordingly lacks authority to make findings regarding constitutional claims.
See TBMP § 102.01 (Jan. 2017), and the authorities cited therein.
Serial No. 86276406
- 4 -
this appeal, applicant does not separately argue the 2(e)(1) refusal; rather, applicant
asserts registerability based on acquired distinctiveness under Section 2(f).”7 We
agree, for where, as here, “an applicant seeks registration on the basis of Section 2(f),
the mark’s descriptiveness is a nonissue; an applicant’s reliance on Section 2(f) during
prosecution presumes that the mark is descriptive.” Cold War Museum, Inc. v. Cold
War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009). The
statute “accepts a lack of inherent distinctiveness as an established fact.” Yamaha
Int’l Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir.
1988); see also In re Cordua Rests. LP, 110 USPQ2d 1227, 1233 (TTAB 2014), aff’d
823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). As Applicant acknowledges, “The
central issue on this appeal is whether Applicant’s mark has acquired
distinctiveness.”8 This is true regardless of whether we consider the applied-for mark
to be “merely descriptive” or “descriptive,” because there is no legal distinction
between the two characterizations for the purpose of analyzing acquired
distinctiveness. For consistency with the language of the statute, we will primarily
employ the term “merely descriptive,” but Applicant may consider this synonymous
with “descriptive.”
Under Section 2(f), matter that is merely descriptive under Section 2(e)(1) may
nonetheless be registered on the Principal Register if it has become distinctive of the
applicant’s goods in commerce. 15 U.S.C. § 1052(f); Cold War Museum, 92 USPQ2d

7 Applicant’s brief, p. 18, 4 TTABVUE 19.
8 Applicant’s brief, p. 4, 4 TTABVUE 5.
Serial No. 86276406
- 5 -
at 1629; H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228
USPQ 528, 530 (Fed. Cir. 1986). An applicant bears the burden of proving acquired
distinctiveness. In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262,
1264 (Fed. Cir. 2015); In re Fantasia Dist., Inc., 120 USPQ2d 1137, 1143 (TTAB 2016).
The amount and character of evidence required to establish acquired
distinctiveness depends on the facts of each case, and particularly on the nature of
the matter sought to be registered as a mark. In re White Jasmine LLC, 106 USPQ2d
1385, 1395 (TTAB 2013). The more descriptive the term, the greater an applicant’s
evidentiary burden to establish acquired distinctiveness. In re Steelbuilding.com, 75
USPQ2d at 1424; In re Bongrain Int’l (Am.) Corp., 894 F.2d 1316, 13 USPQ2d 1727,
1728n.4 (Fed. Cir. 1990) (citing Yamaha, 6 USPQ2d at 1008); In re Country Music
Ass’n Inc., 100 USPQ2d 1824, 1834 (TTAB 2011). Highly descriptive terms require
more substantial evidence of acquired distinctiveness because they are less likely to
be perceived as trademarks than less descriptive terms, and are more likely to be
useful to competing sellers. In re Greenliant Systems Ltd., 97 USPQ2d 1078, 1085
(TTAB 2010); In re Cordua Rests., 110 USPQ2d at 1233-34, aff’d on other grounds,
118 USPQ2d 1632 (Fed. Cir. 2016). The case law is clear that the descriptive nature
of a term proposed for registration under Section 2(f) is judged on a sliding scale, and
some terms are more readily descriptive than others.
Here, as the Examining Attorney observes, Applicant’s proposed mark, “THE
STEM CELL NUTRITION COMPANY,” consists of highly descriptive words. The
first word, “THE,” lacks trademark significance. In Re Thor Tech, Inc., 90 USPQ2d
Serial No. 86276406
- 6 -
1634, 1635 (TTAB 2009) (“The addition of the word ‘The’ at the beginning of the
registered mark does not have any trademark significance. ‘The’ is a definite article.
When used before a noun, it denotes a particular person or thing.”) (citing inter alia
The Conde Nast Pubs. Inc. v. The Redbook Pub. Co., 217 USPQ 356, 357 (TTAB 1983)
(“‘The’ is insignificant. This word cannot serve as an indication of origin, even if
applicant's magazine were the only magazine for young women.”). A “STEM CELL”
is “an undifferentiated cell of a multicellular organism that is capable of giving rise
to indefinitely more cells of the same type, and from which certain other kinds of cell
arise by differentiation.”9 “NUTRITION” is “the branch of science that deals with
nutrients and nutrition, particularly in humans.”10 And a “COMPANY” is simply “a
business enterprise”;11 its addition at the end of the mark is not source-identifying,
and adds no distinctiveness. See In re Oppedahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370, 1373 (Fed. Cir. 2004); In re Wm. B. Coleman Co., Inc., 93 USPQ2d
2019, 2027 (TTAB 2010) (finding ELECTRIC CANDLE COMPANY “incapable of
identifying source for electric candles because it is a term a purchaser would
understand and could use to refer to the type of company that sells electric candles,

9 OxfordDictionaries.com, 8/28/2014, Aug. 28, 2014 Office Action p. 8 pdf. See also Applicant’s
definition of “STEM CELL,” which is to the same effect: “an undifferentiated cell that can
give rise to other cells of the same type indefinitely or from which specialized cells such as
blood cells develop.” Encarta.msn.com, 10/28/2008, Nov. 13, 2015 Response to Office Action
p. 145 pdf.
10 OxfordDictionaries.com, 8/28/2014, Aug. 28, 2014 Office Action p. 117 pdf. See also
Applicant’s definition of “NUTRITION”: “the science that deals with foods and their effects
on health.” Encarta.msn.com, 20/28/2008, Nov. 13, 2015 Response to Office Action pp. 147-
48.
11 Encarta.msn.com, 10/28/2008, Nov. 13, 2015 Response to Office Action p. 149.
Serial No. 86276406
- 7 -
and must be left available for use by other such companies selling electric candles.”);
see generally 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION §12:39 (4th ed.
2016) (quoting Goodyear’s Rubber Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598,
602-03 (1898) (“[P]arties united to produce or sell wine, or to raise cotton or grain,
might style themselves ‘Wine Company,’ ‘Cotton Company,’ or ‘Grain Company,’ but
by such description they would in no respect impair the equal right of others engaged
in similar business to use similar designations, for the obvious reason that all persons
have a right to deal in such articles, and to publish the fact to the world.”)).
These descriptive words, taken together in their entirety, are highly descriptive of
Applicant’s goods. Applicant’s own website uses “stem cell nutrition” descriptively to
tout its products―e.g.:

Serial No. 86276406
- 8 -
12
Applicant’s website recounts the company’s history, repeatedly using the term “stem
cell nutrition”:

13

12 NewStemCells.Stemtech.com/US/Products 8/28/2014, Aug. 28, 2014 Office Action p. 11 pdf.
(highlighting added).
13 Stemtech.com/US/CompanyStory, 12/17/2015, March 16, 2016 Office Action pp. 63-65
(highlighting added).

Serial No. 86276406
- 9 -
In a webinar, Applicant’s chief science officer described how its stem cell
nutritional supplements work: they nourish users’ bone marrow, inducing it to
release more stem cells, which are carried via the circulatory system to tissues and
organs throughout the body, where they can aid in healing and regeneration:

14

14 Youtube.com 12/17/2015, March 16, 2016 Office Action p. 68 (highlighting added).
Serial No. 86276406
- 10 -
Applicant argues that its supplements do not nourish stem cells directly, they
nourish the tissue around the stem cells.15 But its identification of goods, “dietary and
nutritional supplements for the purpose of supporting stem cell physiology,” does not
specify whether the nutrients support stem cell physiology directly or indirectly. And
as it explains in the above quote, its “clinically studied stem cell nutrition line of
products is designed to help support three most important aspects of stem cell
physiology: the release, circulation and migrations of stem cells.” So its goods offer
“stem cell nutrition.”
Further, in press releases and interviews, Applicant’s officers extol the potential
of stem cell nutrition. In one interview, Applicant’s chief executive officer states,
“Stem cell nutrition addresses a brand new way to support health…and has the
potential to eclipse the massive antioxidant supplement business.”16 In yet another
press release, Applicant’s officers praise a new publication:
17

15 Applicant’s brief, pp. 20-21, 4 TTABVUE 21-22.
16NutraIngredients-usa.com/Markets/Stemtech-Stem-cell-Nutrition-could-eclipse–
antioxidant-supplement-market 4/20/2015, May 28, 2015 Office Action pp. 32-35, March 16,
2016 Office Action pp. 85-90.
17 StemCellNutrition.com 4/20/2015, May 28, 2015 Office Action p. 40.
Serial No. 86276406
- 11 -
Applicant’s CEO states, “Dr. Somersall’s latest best seller helps to clearly distinguish
between stem cell nutrition and stem cell medicine. Indeed the future promise of stem
cell medicine is real, but stem cell nutrition is making a major impact on wellness
TODAY.”18
Applicant’s own descriptive use of the phrase “STEM CELL NUTRITION” implies
that not only it, but the public at large would regard those terms as descriptive of the
goods offered for sale. See In re Abcor Development Corp., 588 F.2d 811, 200 USPQ
215, 218 (CCPA 1978) (“Evidence of the context in which a mark is used ... in
advertising material directed to the goods is probative of the reaction of prospective
purchasers to the mark.”). News articles about Applicant use the same phrase in the
same descriptive sense. When Applicant Stemtech announced its plans to move its
corporate offices from San Clemente, California to Pembroke Pines, Florida, the
South Florida Business Journal trumpeted the headline:
19

18TeamStemtech.com/company-news/usa/507-pioneers-in-stem-cell-nutrition-praise-new-
best-selling-book.html 4/21/2015, May 28, 2015 Office Action p. 65.
19 South Florida Business Journal, March 17, 2014, Aug. 28, 2014 Office Action p. 94 pdf
(highlighting added).
Serial No. 86276406
- 12 -
The Sun-Sentinel of Fort Lauderdale quoted the mayor of Pembroke Pines: “[T]he
city is continuing to progress with news that Trader Joe’s is opening in the city and
stem cell nutrition company StemTech International is relocating its headquarters
from California.”20
Applicant’s competitors use the same sort of descriptive phrasing for their
products, e.g.:
21

22

20 Sun-Sentinel (Fort Lauderdale, Florida) 4/13/2014, March 16, 2016 Office Action p. 19
(emphasis added).
21 Life Sciences Today, Vol. 3, Issue 3, March 16, 2016 Office Action p. 101.
22 NaturaTherapeutics.com 12/17/2015, March 16, 2016 Office Action pp. 99-100 pdf.

Serial No. 86276406
- 13 -
In view of the common descriptive use of the phrase “stem cell nutrition,” as in
Applicant’s proposed mark, THE STEM CELL NUTRITION COMPANY, it is
apparent that the phrase, as well as its component terms, are highly descriptive of
the goods. They are, in consequence, less likely to be perceived by the purchasing
public as indicating a single source, and more likely to be useful to competitors. In re
Greenliant Systems, 97 USPQ2d at 1085. Thus, Applicant must bear a
commensurately greater burden of proving that its proposed mark has acquired
distinctiveness. In re Tennis Indus. Assn., 102 USPQ2d 1671, 1681 (TTAB 2012).
II. Acquired Distinctiveness
In determining whether a mark has acquired distinctiveness, the Board may
examine, among other things, “evidence of the trademark owner’s method of using
the mark, supplemented by evidence of the effectiveness of such use to cause the
purchasing public to identify the mark with the source of the product. The courts have
provided further guidance, stating that in determining acquired distinctiveness,
relevant factors may include ‘copying, advertising expenditures, sales success, length
and exclusivity of use, [and] unsolicited media coverage….’ No single factor, however,
is determinative.” In re Koninklijke Philips Elecs. N.V., 112 USPQ2d 1177, 1180
(TTAB 2014) (citations omitted).
Applicant claims more than eight years of substantially exclusive and continuous
use of its mark in commerce in the United States.23 In support of this claim, it offers

23 Applicant’s brief, pp. 4, 10-11, 4 TTABVUE 5, 11-12.

Serial No. 86276406
- 14 -
the declaration of its Senior Vice President Jonathan Lester, who avers that
Applicant has used the mark continuously on its products since November 25, 2008.24
Length of use may be considered as evidence of acquired distinctiveness under
Section 2(f), but “the language of the statute is permissive and the weight to be
accorded this kind of evidence depends on the facts and circumstances of the
particular case.” In re Ic! Berlin Brillen Gmbh, 85 USPQ2d 2021, 2024 (TTAB 2008);
accord AS Holdings, Inc. v. H & C Milcor, Inc., 107 USPQ2d 1829, 1838 (TTAB 2013)
(citing Yamaha, 6 USPQ2d at 1004). The record evidence in this case demonstrates
that Applicant has been using the phrase “stem cell nutrition” descriptively. That use
of the phrase in its primary meaning undermines Applicant’s efforts to develop
secondary meaning in the phrase, so that it would be “identifying the source of a
product or service rather than the product or service itself.” In re Steelbuilding.com,
415 F.3d 1293, 75 USPQ2d 1420, 1422 (Fed. Cir. 2005) (emphasis added); Mini Melts,
Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1480 (TTAB 2016). The record
evidence also demonstrates that Applicant’s competitors use the same or similar
“stem cell nutrition” phrasing to describe their products. See Saint-Gobain Corp. v.
3M, 90 USPQ2d 1425, 1440 (“in order to be relevant to the question of whether
applicant’s mark has acquired distinctiveness, the third-party uses do not have to be
identical to applicant’s mark.”). Applicant does not refute the documentary evidence
of third-party use introduced by the Examining Attorney, and the Lester declaration

24 See Declaration of Jonathan Lester, ¶¶ 4-5, Feb. 20, 2015 Response to Office Action pp. 10-
12 pdf.
Serial No. 86276406
- 15 -
does not even aver that Applicant’s use has been substantially exclusive. As our
primary reviewing Court has made clear, “The examples of use of the phrase by others
in its descriptive form support the board’s conclusion that the mark had not acquired
distinctiveness.” In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056, 1058
(Fed. Cir. 1999). The probative value of long and continuous use is vitiated when the
applicant’s use is not substantially exclusive. 15 U.S.C. § 1052(f). Saint-Gobain v.
3M, 90 USPQ2d at 1440. “When the record shows that purchasers are confronted
with more than one (let alone numerous) independent users of a term or device, an
application for registration under Section 2(f) cannot be successful, for distinctiveness
on which purchasers may rely is lacking under such circumstances.” Id. (quoting Levi
Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984));
see In re R.M. Smith, Inc., 734 F.2d 1482, 222 USPQ 1, 3 (Fed. Cir. 1984) (eight years’
use insufficient).
Relying once again on the Lester declaration, Applicant avers that since
November 2008 it has distributed and sold over one million bottles and packages of
its identified supplements―fifty million dollars’ worth of goods bearing the proposed
mark―to consumers in the United States.25 Greater annual sales than Applicant’s
cumulative sales have nonetheless been found insufficient to establish acquired
distinctiveness. See In re Boston Beer, 53 USPQ2d at 1057 (claim based on annual
sales of approximately eighty-five million dollars insufficient to establish acquired

25 Applicant’s brief, pp. 11-12, 23, 4 TTABVUE 12-13, 24. Lester Declaration, ¶¶ 4-5, Feb. 20,
2015 Response to Office Action pp. 10-12 pdf.
Serial No. 86276406
- 16 -
distinctiveness in view of highly descriptive nature of mark); In re Bongrain, 13
USPQ2d at 1729 (mere growth in sales may simply show the popularity of the product
and not recognition of the asserted mark). Applicant’s sales figures are
unaccompanied by evidence of its market share, which would put its sales figures in
context and help show the extent of the mark’s exposure to the relevant public. See
Mini Melts, 118 USPQ2d at 1480 (“no context showing Applicant’s market share and
whether the stated amount of doses sold is significant in the industry.”). Applicant’s
bare sales figures do not show that its relevant customers have come to view its
proposed mark as source-identifying.
In his declaration, Senior Vice President Lester asserts, “In the course of my job
duties, I interact with consumers in the United States and they will express their
state of mind to me. Consumers regard the words―The Stem Cell Nutrition
Company―as associated with [Applicant] StemTech International, Inc., and an
identifier of goods from StemTech International, Inc.”26 A conclusory, self-serving
declaration of this sort will be considered for what it is worth, but it is not worth
much. See, e.g., In re Activevideo Networks, Inc., 111 USPQ2d 1581, 1606 (TTAB
2014) (conclusory declarations by applicant’s vice president of marketing failed to
provide contextual information about sales and failed to establish that purchasing
public came to view alleged mark as indicator of source); In re Central Counties Bank,
209 USPQ 884, 888 (TTAB 1981) (statement by applicant bank’s officials that

26 Lester Declaration, ¶ 7 (misnumbered 5), Feb. 20, 2015 Response to Office Action pp. 10-
12 pdf.
Serial No. 86276406
- 17 -
descriptive term CASH RESERVE CHECKING is recognized as a source indicator is
entitled to little if any probative value). Declarant Lester estimates that Applicant
has at least “seven hundred fifty thousand active consumers” of its goods in the
United States.27 But if that many consumers purchased approximately one million
bottles and packages of Applicant’s product, as the Lester declaration avers, that
means that each consumer bought, on the average, one-and-one-third bottles or
packages over the course of seven years―not very much under the circumstances.
Further, his declaration fails to indicate how Applicant’s brand was displayed to these
consumers. Applicant claims to have displayed its proposed mark “Prominently under
tradename on packaging, as well as on webpages.”28 But a specimen, reproduced
below, shows a less than prominent display:
29

27 Lester Declaration, ¶ 6, Feb. 20, 2015 Response to Office Action pp. 10-12 pdf.
28 Applicant’s brief, pp. 11, 22, 4 TTABVUE 12, 23.
29 Nov. 13, 2015 Response to Office Action p. 89 pdf.
Serial No. 86276406
- 18 -
As the Examining Attorney rightly observes, the proposed mark is the smallest,
most inconspicuous wording on the label,30 overshadowed by the prominent name
STEMTECH. Thus, even putting aside the other deficiencies in the declaration, it is
impossible to gauge whether the consumers to whom the Lester declaration referred
identified Applicant as the source of the goods because of the proposed mark THE
STEM CELL NUTRITION COMPANY or because of Applicant’s prominently
displayed name, STEMTECH. Cf. In re Mogen David Wine Corp., 372 F.2d 539, 152
USPQ 593, 595 (CCPA 1967) (affiants associated decanter with Mogen David Wine
Corporation because of the mark MOGEN DAVID WINE and other descriptive
material appearing thereon, not because of any distinctive characteristic of the
decanter). For these reasons, the Lester declaration carries little probative value.
In an effort to bolster its position, Applicant submits 14 form declarations.31 In
each identical declaration, the declarant identifies himself or herself as “a consumer,
distributor and/or dealer of nutritional supplements for the purpose of supporting
stem cell physiology” who, “having observed and/or heard the words ‘The Stem Cell
Nutrition Company’,” avers that the wording “makes an impression on me as to tell
me that a nutritional supplement comes from a particular supplier/source; namely,
StemTech International, Inc. and/or its US subsidiary, StemTech Health Sciences,
Inc.”32 All of these form declarations were executed in Broward County,

30 Examining Attorney’s brief, 6 TTABVUE 22-23.
31 Applicant’s brief, pp. 15, 23-24, 4 TTABVUE 16, 24-25; Nov. 13, 2015 Response to Office
Action pp. 34-75, 258-299.
32 See, e.g., Declaration signed by Ariel Louis, ¶¶ 3-5, Nov. 13, 2015 Response to Office Action
p. 35 pdf.
Serial No. 86276406
- 19 -
Florida―where Applicant’s corporate headquarters are now located. None of the
signatories indicated whether he or she was a consumer, distributor, or dealer. In
fact, none of the signatories varied the wording of the declaration at all, save for one
who added the handwritten comment, “To my opinion Stemtech is a company who
deserves to be called ‘The Stem cell Nutrition Company’ for the excellence of
products.”33 Aside from this one added endorsement, the 14 form declarations are
essentially identical.
Form declarations of this sort, in which each declarant “fills in the blanks” with
his or her name, along with the place and date of execution, may be used in an effort
to show acquired distinctiveness, but “the probative weight of the testimonials is
affected somewhat by the fact that they are all essentially identical in form and were
clearly not composed individually. … [S]uch statements are less persuasive than
statements expressed in the declarants’ own words.” In re Pohl-Boskamp GmbH &
Co., 106 USPQ2d 1042, 1051 (TTAB 2013). Beyond their identicalness, the form
declarations in this case suffer from even more pronounced deficiencies. They fail to
indicate their declarants’ backgrounds (consumers, distributors, or dealers), they lack
geographic diversity (clustered in Applicant’s home county), and they account for an
infinitesimally small percentage of relevant consumers (750,000 in the United States,
according to the Lester declaration). See In re Benetton Group, S.p.A., 48 USPQ2d
1214, 1217 (TTAB 1998) (“given the nature of applicant’s services, the statements of
twenty three individuals do not establish an association of the [mark] with a single

33 Declaration of Maria Boczon, ¶ 8, Nov. 13, 2015 Response to Office Action pp. 60, 284 pdf.
Serial No. 86276406
- 20 -
source by other than an extremely small number of the purchasing public.”). They
are, at bottom, conclusory, failing to detail how each declarant became familiar with
the proposed mark, how long he or she was exposed to the mark, or how the mark
supposedly came to be distinctive. Id.; See In re Udor U.S.A., Inc., 89 USPQ2d 1978,
1987 (TTAB 2009) (“the underlying factual basis for their conclusory statements is
not apparent.”). See generally In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629,
1633 (Fed. Cir. 2003) (Where multiple affidavits are “nearly identical,” “conclusorily
worded,” “fail to explain what it is about Pacer’s adhesive container cap that is unique
or unusual, or distinctive from those of its competitors” and “represent the views of a
small segment of the relevant market,” “they are not the kind of ‘competent evidence’
that could carry Pacer’s burden of rebutting the PTO’s prima facie case.”) quoted in
Pohl-Boskamp, 106 USPQ2d at 1051.
Applicant finally argues that unsolicited media coverage evidences its acquired
distinctiveness.34 But the media coverage it cites is the article quoted earlier from the
South Florida Business Journal, which used the term “the stem cell nutrition
company” descriptively when it reported Applicant’s announced move to Florida:
“The stem cell nutrition company made the announcement after qualifying for
$615,000 in incentives from the City and State….”35 This article merely reinforces the
descriptiveness of Applicant’s applied-for mark. Cf. Sheetz of Del., Inc. v. Doctor’s
Assocs. Inc., 108 USPQ2d 1341, 1370 (TTAB 2013) (“The media coverage does not

34 Applicant’s brief, pp. 14, 24, 4 TTABVUE 15, 25.
35 South Florida Business Journal, March 17, 2014, Aug. 28, 2014 Office Action p. 94 pdf
(emphasis added).
Serial No. 86276406
- 21 -
demonstrate that the term ‘Footlong’ has acquired distinctiveness because the news
articles use the term ‘Footlong’ generically, not as a trademark ….”).
All in all, given the highly descriptive nature of the proposed mark, Applicant’s
evidence is “simply insufficient to be probative of the issue of acquired
distinctiveness.” In re Florists’ Transworld Delivery, 106 USPQ2d 1784, 1794 (TTAB
2013). For the foregoing reasons, we agree with the Examining Attorney’s
determination that Applicant has failed to meet its burden of proving that the
applied-for mark has acquired distinctiveness.
III. Required Additional Information
The Examining Attorney’s efforts to gather and present relevant evidence bearing
on descriptiveness and whether acquired distinctiveness had been established were
impeded, to some degree, by Applicant’s lack of cooperation during the examination
process. During the course of examination, the Examining Attorney issued the
following request for information to Applicant under Trademark Rule 2.61(b):
INFORMATION ABOUT GOODS REQUIRED
Due to the descriptive nature of the applied-for mark, applicant must
provide the following information regarding the goods and wording
appearing in the mark:
(1) Fact sheets, instruction manuals, brochures, advertisements and
pertinent screenshots of applicant’s website as it relates to the goods.
Merely stating that information about the goods is available on
applicant’s website is insufficient to make the information of record.
If these materials are unavailable, applicant should submit similar
documentation for goods of the same type, explaining how its own
product or services will differ. If the goods feature new technology and
information regarding competing goods is not available, applicant
must provide a detailed factual description of the goods. Factual
Serial No. 86276406
- 22 -
information about the goods must make clear how they operate, salient
features, and prospective customers and channels of trade. Conclusory
statements will not satisfy this requirement; and
(2) Applicant must respond to the following questions:
A. Are the applicant’s identified goods provided or manufactured by a
nutrition company?
B. Are the applicant’s identified goods provided or manufactured by a
nutrition supplement company?
C. Are applicant’s identified goods in the nature of nutrition
supplements?
D. Are applicant’s identified goods in the nature of stem cell enhancers?
E. Are applicant’s identified goods in the nature of stem cell boosters?
F. Do the applicant’s identified goods support the release of stem cells?
G. Do the applicant’s identified goods help circulate stem cells in the
blood?
H. Do the applicant’s goods help migrate stem cells into tissues?
I. Do the applicant’s identified goods help stem cells perform the function
of renewal of tissues for optimal health?
J. Are the applicant’s identified goods a part of a larger line of stem cell
nutrition products?
The Examining Attorney cited the authorities in support of this information
requirement, and advised Applicant that its failure to comply with the request for
information could be a ground for refusing registration.36
Applicant’s response was:
Applicant traverses the information requirement on the grounds that
there [is] no genuine need for the information and the request[s] fall
outside the rule; the requests are abusive, harassing and annoying; the
burden of the request is not commensurate with any need and the
requests are vague and ambiguous. Subject to the traverse and without
waiver thereto, Applicant produces the below in answer to the requests
[four U.S. patents].37

36 May 28, 2015 Office Action pp. 8-9.

37 Nov. 13, 2015 Response to Office Action pp. 7-8; Patents attached in Nov. 13, 2015
Response to Office Action pp. 164-255: US Patent No. 6,814,961 B1 by Gitte Jensen and
Christian Drapeau entitled Method for Enhancing Stem Cell Trafficking issued on Nov. 9,
2004; US Patent No. 7,651,690 B2 by Gitte Jensen and Christian Drapeau entitled Purified
Serial No. 86276406
- 23 -
In the final Office Action, the Examining Attorney found Applicant’s objections
meritless, and maintained that the required information was relevant to determine
whether the applied-for mark was merely descriptive, highly descriptive, suggestive,
or a distinctive source indicator of Applicant’s goods.38 The Examining Attorney
accordingly refused registration on the basis of Applicant’s failure to fully comply
with the information requirements made under Rule 2.61(b), as well as the mark’s
lack of acquired distinctiveness.
Trademark Rule 2.61(b) provides that the Examining Attorney “may require the
applicant to furnish such information, exhibits, affidavits or declarations, and such
additional specimens as may be reasonably necessary to the proper examination of
the application.” 37 CFR § 2.61(b) quoted in In re Cheezwhse.com, Inc., 85 USPQ2d
1917, 1919 (TTAB 2008). The Rule is designed to elicit information and materials that
assist the Examining Attorney in assessing the registrability of an applicant’s mark
and assist the Board in reviewing that assessment. See generally TRADEMARK
MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 814 (Jan. 2017). The Examining
Attorney may accordingly request literature, exhibits, and general information
concerning circumstances surrounding the mark and its use or intended use. In re
Planalytics, Inc., 70 USPQ2d 1453, 1457 (TTAB 2004) (quoting TMEP § 814).

Component of Blue-Green Algae and Method of Use issued on Jan. 26, 2010; US Patent No.
7,947,284 B2 by Gitte Jensen and Christian Drapeau entitled Purified Component of Blue-
Green Algae and Method of Use issued on May 24, 2011; US Patent No. 8,024,328 B2 by Gitte
Jensen and Christian Drapeau entitled Method for Enhancing Stem Cell Trafficking issued
on October 11, 2011.
38 March 16, 2016 Final Office Action pp. 9-10; Examining Attorney’s brief, 6 TTABVUE 25.

Serial No. 86276406
- 24 -
An applicant facing an information requirement under the Rule has several
options. It may comply with the request by submitting the required information and
materials; or it may explain that it has no such responsive information or materials,
and instead submit its competitors’ materials; or “it may even dispute the legitimacy
of the request, for example, if the goods identified in the application are such ordinary
consumer items that a request for information concerning them would be considered
unnecessary and burdensome.” In re SPX Corp., 63 USPQ2d 1592, 1597 (TTAB 2002)
quoted in In re DTI P’ship LLP, 67 USPQ2d at 1701-02.39
Applicant chose the latter course, albeit while providing four patents as a
response. In boilerplate language one might expect to see in an inter partes discovery
dispute, it objected to the Examining Attorney’s specific numbered and lettered
requests on the grounds that they were unnecessary, fell outside Rule 2.61(b), were
“abusive, harassing and annoying,” imposed a burden that was incommensurate with
any need, and were “vague and ambiguous.”40 On appeal, it maintains that it “fully
and completely responded to the information requirement by producing its patents,”41
and “the production of patent documents is a perfectly fine way to respond to an
information request.”42

39 An applicant who has concerns with or objections to an examining attorney’s information
requirements under Trademark Rule 2.61(b) may address them with the examining attorney,
and, if need be, the managing attorney. Under certain circumstances, such requirements also
may be proper subject matter for a petition to the Director. See Trademark Rules 2.63, 2.146,
37 CFR §§ 2.63, 2.146; TBMP § 1201.05 (Jan. 2017); TMEP § 1704 (Jan. 2017).
40 Nov. 13, 2015 Response to Office Action pp. 7-8.
41 Applicant’s brief, p. 26, 4 TTABVUE 27.
42 Applicant’s reply brief, p. 16, 7 TTABVUE 17.
Serial No. 86276406
- 25 -
We find, though, that the requests for Applicant’s documentary materials―its fact
sheets, instruction manuals, brochures, and advertisements, as well as pertinent
screenshots from its website―are all reasonably necessary to enable the Examining
Attorney and the Board to determine the proposed mark’s degree of descriptiveness.
The requests for documentary materials about competing goods―their salient
features, their prospective customers and their channels of trade―are also reasonably
necessary to determining whether Applicant’s use of its mark has been substantially
exclusive. 15 U.S.C. §1052(f).
Consequently, Applicant’s boilerplate objections to the Examining Attorney’s
document requests are not well taken. “The Board encourages Trademark Examining
Attorneys to require information and materials under Trademark Rule 2.61(b) in
such circumstances, and looks with disfavor on an applicant’s failure to comply with
such requirement fully and in good faith.” In re DTI P’ship LLP, 67 USPQ2d 1699,
1701n.3 (TTAB 2003). Applicant’s production of four patents was not sufficiently
responsive to the Examining Attorney’s document requests. Applicant’s four cited
patents pertain to the use of blue-green algae, or a biological component thereof, to
enhance the movement of stem cells into and through the circulatory system to
various parts of the body, where they can differentiate into specialized functional cells
that help the healing and regenerative processes of various tissues and organs.43 To
the extent that the patents are submitted to cast some light on Applicant’s goods,
they illuminate, to some degree, how the goods could work as “dietary and nutritional

43 Nov. 13, 2015 Response to Office Action pp. 164-255.
Serial No. 86276406
- 26 -
supplements for the purpose of supporting stem cell physiology” and why THE STEM
CELL NUTRITION COMPANY is merely descriptive of those goods. But beyond that,
Applicant had a duty to “participate in the examination process by responding
directly and completely to each request for information.” TMEP § 814. It did not
discharge that duty by submitting the patents alone. For one thing, the identification
of goods in its application, “dietary and nutritional supplements for the purpose of
supporting stem cell physiology,” does not indicate the extent to which the identified
supplements use the blue-green algae ingredients described in the patents, and is not
limited to products using those ingredients. For another, Applicant’s competitors may
offer stem cell nutritional supplements with other ingredients. Further, the mere
submission of patents without specifying which of the Examining Attorney’s
requirements they satisfy, and what portions of the documents provide the
information, does not constitute a direct response. The documents the Examining
Attorney requested―such as Applicant’s instruction manuals and brochures, its
advertisements and webpages, and its competitors’ products, channels of trade and
classes of customers―all bear on the mark’s degree of descriptiveness and its claimed
acquisition of distinctiveness. Applicant failed to comply with the requests fully and
in good faith.
The Examining Attorney’s requests for information in 2(A-J), called for “yes” or
“no” answers. Nonetheless, merely because they could be easily answered does not
mean they all were appropriate ―for example, the following were not:
2(A). Are the applicant’s identified goods provided or manufactured by a nutrition
company?
Serial No. 86276406
- 27 -

2(B). Are the applicant’s identified goods provided or manufactured by a
nutrition supplement company?

2(C). Are applicant’s identified goods in the nature of nutrition supplements?
These three quoted requests for information bear some resemblance to inter partes
requests for admission, phrased to elicit responses showing how Applicant’s proposed
mark is merely descriptive. See In re Emergency Alert Sols.Grp., LLC, 122 USPQ2d
1088, 1094-95 (TTAB 2017). To the extent that they request information that is
already apparent from the record, they are not “reasonably necessary to the proper
examination of the application” under Rule 2.61(b).
The remaining requests for information, requests 2(D)-(J), were reasonably
necessary because they concern technical matters uniquely in the possession of
Applicant. See In re Faucher Indus. Inc., 107 USPQ2d 1355, 1361(TTAB 2013); TMEP
§ 814. “The rule recognizes that an applicant often is in the best position to supply
the facts and information necessary for the Office to determine the registrability of a
trademark and is designed to encourage efficient and high quality trademark
examination.” In re Emergency Alert, LLC, 122 USPQ2d at 1093. Applicant’s patents
are relevant to the Examining Attorney’s requests for information in 2(D-I) because
they illuminate, to some degree, how the goods work as “dietary and nutritional
supplements for the purpose of supporting stem cell physiology.” But given the
technical nature of the patents, the requests were reasonably necessary to confirm
how Applicant’s goods would work. The requests were not burdensome, as a simple
“yes” or “no” answer to each would have been responsive. And Applicant failed to
Serial No. 86276406
- 28 -
answer request 2(J), asking whether its identified goods were part of a larger line of
stem cell nutrition products.
If an applicant fails to comply with an examining attorney’s requirement for
information in accordance with Rule 2.61(b), the Board may affirm the refusal to
register on that ground alone, e.g., In re Harley, 119 USPQ2d 1755, 1758 (TTAB
2016); In re AOP LLC, 107 USPQ2d 1644, 1651 (TTAB 2013). For the foregoing
reasons, we find that Applicant’s boilerplate objections, coupled with production of
four patents, failed to comply with the Examining Attorney’s requirements for
documentary materials and for the information sought in requests 2(D-J).
We therefore affirm the refusal to register based on Rule 2.61(b).
Decision: For the foregoing reasons, all of the refusals to register Applicant’s
mark THE STEM CELL NUTRITION COMPANY are affirmed.