Three Lollies LLC

Trademark Trial and Appeal Board

Mar 31, 2017

No. 86779106 (T.T.A.B. Mar. 31, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 31, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Three Lollies LLC
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Serial No. 86779106
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Three Lollies LLC, appearing pro se.

Rebecca A. Smith, Trademark Examining Attorney, Law Office 110,
Chris A. F. Pedersen, Managing Attorney.
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Before Cataldo, Masiello and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Three Lollies LLC (“Applicant”) seeks registration on the Principal Register of the
mark TUMMY NATURALS (in standard characters; TUMMY disclaimed) for
“medicinal preparations for the mouth to be applied in the form of drops, capsules,
tablets and compressed tablets; nausea treatment preparations” in International
Class 5.1

1 Application Serial No. 86779106, filed on October 6, 2015 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).
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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
Applicant’s mark is merely descriptive of the identified goods. After the Examining
Attorney made the refusal final, Applicant appealed to this Board. We affirm the
refusal to register.
I. Mere Descriptiveness - Applicable Law
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the goods of the
applicant is merely descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). A term is “merely
descriptive” within the meaning of Section 2(e)(1) 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 U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960,
82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). “On the other hand, if one must exercise
mature thought or follow a multi-stage reasoning process in order to determine what
product or service characteristics the term indicates, the term is suggestive rather
than merely descriptive.” In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB
1978); see also, In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983); In re Universal
Water Systems, Inc., 209 USPQ 165, 166 (TTAB 1980).
A term need only describe a single feature or attribute of the goods to be
descriptive. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807,
1812 (Fed. Cir. 2001). Moreover, a mark need not be merely descriptive of all recited
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goods or services in an application. A descriptiveness refusal is proper, “if the mark
is descriptive of any of the goods for which registration is sought.” In re Chamber of
Commerce of the U.S., 102 USPQ2d at 1219 (quoting In re Stereotaxis Inc., 429 F.3d
1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005)).
Whether a mark is merely descriptive is determined in relation to the goods or
services for which registration is sought, not in the abstract or on the basis of
guesswork. Descriptiveness of a term must be evaluated “in relation to the particular
goods 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 Chamber of Commerce of the
U.S., 102 USPQ2d at 1219 (quoting In re Bayer AG, 82 USPQ2d at 1831). “The
question is not whether someone presented with only the mark could guess what the
goods or services are. Rather, the question is whether someone who knows what the
goods and 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) (quoting In re Tower Tech Inc., 64 USPQ2d 1314, 1316-
17 (TTAB 2002)).
With these principles in mind, we start our analysis by defining the components
of Applicant’s mark TUMMY NATURALS. The components of Applicant’s mark are
defined as follows:

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• The word “tummy” is defined as “a person’s stomach or abdomen.”2
• The term “naturals” is defined, inter alia, as “having undergone little or no
processing and containing no chemical additives: natural food.”3

When applied to Applicant’s nausea treatment preparations, each component of
Applicant’s TUMMY NATURALS mark retains its merely descriptive significance,
and the mark in its entirety means and directly engenders the commercial impression
of a product for the stomach that is made from relatively unprocessed ingredients or
lacks chemical additives. This factual finding is corroborated not only by the fact that
Applicant itself has disclaimed the term TUMMY4 but also by the Examining
Attorney’s submission of third-party registrations which either disclaim the term
TUMMY or NATURALS for goods similar in function and/or purpose to Applicant’s
identified goods, i.e., preparations that aid in alleviating the discomfort of body

2 See Oxford Dictionary (www.oxfordictionaries.com). The Board may take judicial notice of
dictionary definitions, including online dictionaries and encyclopedias that exist in printed
format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d 823 F.3d 594,
118 USPQ2d 1632 (Fed. Cir. 2016); B.V.D. Licensing Corp. v. Body Action Design Inc., 846
F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988); Threshold.TV Inc. v. Metronome Enters.
Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010). We also note that although the Examining
Attorney did not submit a dictionary definition for the term “TUMMY,” Applicant
acknowledged that the Examining Attorney defined the term “TUMMY” as referring to the
stomach and did not contest this definition. See Applicant’s April 5, 2016, Response to Office
Action, p. 9.
3 See January 27, 2016, Office Action.
4 By disclaiming the term TUMMY, Applicant has conceded that this term is merely
descriptive when used in connection with its identified goods. In re Pollio Dairy Prods. Corp.,
8 USPQ2d 2012, 2014 (TTAB 1988) (“By its disclaimer of the word LITE, applicant has
conceded that the term is merely descriptive as used in connection with applicant's goods; In
re Ampco Foods Inc., 227 USPQ 331, 333 (TTAB 1985) (“Finally, applicant has conceded the
descriptive nature of the term ‘FRIES' by disclaiming it apart from the mark as a whole”).
Serial No. 86779106
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ailments and/or for promoting general good health and well-being or which contain
natural ingredients.5 For example:
Third-party registrations in which the term “TUMMY” is disclaimed:
TUMMY CALM (Registration No. 410017) for “homeopathic medicine for digestive
upset”;

HEATHER’S TUMMY TAMERS (Registration No. 4619448) for “dietary and
nutritional supplements”;

TUMMY TUNEUP (Registration No. 4849964) for “nutritional supplements,
namely, probiotic compositions”;

TUMMYCARE MAX (Registration No. 4862360; TUMMYCARE disclaimed) for
“nutritional supplements for the treatment of acid reflux in infants”, and

TUMMY DROPS KEEP TUMMIES HAPPY (Registration No. 4247307; TUMMY
DROPS disclaimed) for “dietary supplement.”

Third-party registrations in which the term “NATURALS” is disclaimed:
GENTLE NATURALS (Registration No. 3650236) for “Teething drops for
relieving teething pain, dietary supplements, earache drops, and bug repellents;”

JORDAN NATURALS (Registration No. 4610076) for “Topical lotions for relief of
skin conditions;”

LISTERINE NATURALS (Registration No. 4568721) for “medicated mouthwash;”

HDI NATURALS (Registration No. 4884109) for “Dietetic Food, namely, sugar
free lozenges adapted for medical use made primarily with natural ingredients;
Dietary and Nutritional Supplements, made primarily with natural ingredients;”

EARTH TREE NATURALS (Registration No. 4463365) for “liquid vitamin
supplements; vitamin and mineral supplements;”

INSTA NATURALS and design (Registration No. 4926022) for, among other
things, “Vitamin supplements containing natural ingredients;”

5 See January 27, 2016 and April 19, 2016, Office Actions.
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SOLLE NATURALS (Registration No. 4402551) for, among other things,
“nutritional supplement for eliminating toxins from the body; nutritional
supplement for eliminating toxins from the intestinal tract;”

BIOCLINIC NATURALS (Registration No. 4647564) for “Dietary and nutritional
supplements; Dietary food supplements; Food supplements; Health food
supplements; Herbal supplements; Nutraceuticals for use as a dietary
supplement; Vitamin and mineral supplements; all of the foregoing derived
primarily from natural ingredients;”

SMOKEY MOUNTAIN NATURALS, LLC (Registration No. 45336+9) for “natural
supplements for treating menopause;”

ALPINE VALLEY NATURALS (Registration No. 4585985) for, among other
things, “dietary supplement for eliminating toxins from the intestinal tract;
dietary supplements for controlling cholesterol; dietary supplements for urinary
health; herbal supplements for sleeping problems; natural supplements for
treating erectile dysfunction; natural supplements for treating depression and
anxiety;”

ZOLA NATURALS (Registration No. 4810843) for, among other things, “dietary
and nutritional supplements in liquid capsule, softgel and tablet form consisting
of vitamins, minerals and herbs for vitality, balance, libido, skin, digestion and
general well-being;”

ANAPURE NATURALS (Registration No. 4867597) for “Dietary and nutritional
supplements containing vitamins, minerals and amino acids made in significant
part of natural ingredients;”

ZARBEE’S NATURALS (Registration No. 4754773) for “Allergy capsules; Cough
treatment preparations; Natural sleep aid preparations;”

RAMI NATURALS and design (Registration No. 4747045) for “Dietary and
nutritional supplements containing natural ingredients; Dietary supplements for
a variety of health needs containing natural ingredients;” and

CALYX NATURALS (Registration No. 4869816) for “natural herbal supplements,
namely, natural remedy preparations for the treatment of gastro-intestinal
conditions, hormonal and chemical imbalances, and sleep disorders.”

Third-party registrations featuring the same or similar goods or services are
probative evidence on the issue of descriptiveness where the relevant term is
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disclaimed. Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d
1793, 1797 (Fed. Cir. 1987); In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB
2006); In re Finisar Corp., 78 USPQ2d 1618, 1621 (TTAB 2006), aff’d per curiam, 223
Fed. Appx. 984 (Fed. Cir. 2007).
Applicant argues that if its applied-for mark, TUMMY NATURALS, is read in its
entirety, instead of being dissected, it is not descriptive but merely suggestive of its
identified goods inasmuch as the “mental link” between its mark and the identified
goods is neither immediate nor instantaneous and therefore consumers will have to
undergo a multi-step process to envision the relevance of TUMMY NATURALS to
Applicant’s goods.6 Applicant further contends that the term NATURALS in the
context of natural remedies is susceptible to many different interpretations and
meanings and therefore when Applicant’s mark is viewed in its entirety it “fails to
directly, immediately and almost intuitively provide information regarding
Applicant’s goods.”7 Specifically, Applicant maintains that its TUMMY NATURALS
mark can be (1) interpreted as medicinal preparations that are intended to assist the
body in naturally alleviating discomfort and pain; (2) appreciated as goods that are
wholesome and safe; or (3) viewed as medicinal remedies that are easily digestible
and have no side-effects on the stomach or digestive system.8

6 Applicant’s Appeal Brief, pp. 7 and 10, 5 TTABVUE 8 and 11; Applicant’s April 5, 2016,
Response to Office Action.
7 Applicant’s April 5, 2016, Response to Office Action.
8 Id. It is worth noting that all of Applicant’s proposed alternative interpretations of the
meaning of the mark are, themselves, descriptive of features of Applicant’s goods.
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Theoretically, it is true that if a combination of terms creates a non-descriptive or
incongruous meaning, the composite mark is registrable. See generally In re
Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004) (“[I]f
... two portions individually are merely descriptive of an aspect of appellant's goods,
the PTO must also determine whether the mark as a whole, i.e., the combination of
the individual parts, conveys any distinctive source-identifying impression contrary
to the descriptiveness of the individual parts.”); In re Colonial Stores Inc., 394 F.2d
549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE for “bakery products”); In re
Shutts, 217 USPQ at 364-65. But if, on the other hand, each component retains its
merely descriptive significance in relation to the goods, then the mark as a whole is
merely descriptive. E.g., In re Oppedahl & Larson, 71 USPQ2d at 1374 (“In this case,
the mark …, as a whole, is merely descriptive of appellant's goods.”); In re Fat Boys
Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016) (“The two component words
of the mark combine in a manner and order that would be easily interpreted by
persons familiar with the English language and the goods. They would be
immediately understood ….”); In re Petroglyph Games Inc., 91 USPQ2d 1332, 1341
(TTAB 2009) (“[B]ecause the combination of the terms does not result in a composite
that alters the meaning of either of the elements, refusal on the ground of
descriptiveness is appropriate”).
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Applicant’s goods include “nausea treatment preparations,” and nausea is a
stomach-related condition.9 Based on the evidence of record and contrary to
Applicant’s arguments, we find that consumers in the market for the types of goods
offered by Applicant, such as nausea preparations, are accustomed to encountering
terms like TUMMY and NATURALS when purchasing these types of goods and will
understand that the goods are naturally-based preparations for treating stomach
conditions. No additional mental step is required to understand the nature of the
goods and no imagination is required to make this connection when the mark is used
in connection to the actual goods. Moreover, we find that the combination of the terms
TUMMY and NATURALS does not result in a composite mark that conveys any
distinctive source-identifying impression other than the descriptiveness of the
individual terms. Furthermore, we find unpersuasive Applicant’s argument that,
because the term NATURALS may have multiple meanings, its mark cannot be
viewed as descriptive of its identified goods. As indicated above, because
descriptiveness is evaluated in relation to the particular goods for which registration
is sought, the context in which the term 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, we focus our analysis on definitions that are related to the
goods, i.e., nausea treatment preparations.10 Based on the definitions of the terms at

9 Nausea is “a sensation of discomfort in the region of the stomach usu. Associated with an
urge to retch or vomit.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993) p. 1508.
10 As noted above, a descriptiveness refusal is proper, “if the mark is descriptive of any of the
goods for which registration is sought.” In re Chamber of Commerce of the U.S., 102 USPQ2d
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issue, it is clear that when Applicant’s mark TUMMY NATURALS is viewed in its
entirety in connection with Applicant’s nausea treatment preparations consumers
would perceive the mark as merely describing a feature of Applicant’s goods, namely,
that the goods are a preparation containing natural ingredients for alleviating
discomfort in the stomach caused by nausea. In other words, Applicant’s mark lacks
the type of suggestiveness or incongruous meaning that might avoid mere
descriptiveness. See generally In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382
(CCPA 1968) (“unusual association or arrangement in the applicant’s mark [SUGAR
& SPICE] results in a unique and catchy expression which does not, without some
analysis and rearrangement of its components suggest the contents of applicant’s
goods”).
Applicant next argues that there is little evidence that the phrase TUMMY
NATURALS is commonly used in the trade.11 Additionally, Applicant maintains that
its competitors have numerous choices in regard to alternative language that can be
used to identify their own specific goods.12
Applicant’s arguments are unavailing. The Board has made clear that the
Examining Attorney is not required to show competitive need or concurrent use by
others in order to establish that a term is descriptive: “Under the current standard,
there is no requirement that the Examining Attorney prove that others have used the

at 1219 (quoting In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005))
(emphasis added).
11 Applicant’s Appeal Brief, p. 11, 5 TTABVUE 12.
12 Id.
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mark at issue or that they need to use it, although such proof would be highly relevant
to an analysis under Section 2(e)(1).” In re Fat Boys Water Sports, 118 USPQ2d at
1514. Here, however, the Examining Attorney did submit numerous third-party
registrations for goods similar to those of Applicant in which the marks incorporate
the terms TUMMY or NATURALS and those terms are disclaimed as merely
descriptive of the identified goods. This evidence demonstrates, at a minimum, that
competitors of goods similar to those of Applicant seek to register trademarks
containing the terms TUMMY or NATURALS to be used in association with goods for
alleviating ailments of the stomach and/or which contain natural ingredients.
Moreover, the fact that potential competitors of Applicant may be able to describe and
advertise the same or similar goods by terms other than TUMMY NATURALS that
are similar in meaning does not obviate the descriptiveness of Applicant’s mark. See,
e.g., Roselux Chemical Co., Inc. v. Parsons Ammonia Co., Inc., 299 F.2d 855, 132
USPQ 627, 632 (CCPA 1962).
II. Conclusion
We have carefully considered all arguments and evidence of record, including any
not specifically discussed. We find that TUMMY NATURALS is merely descriptive of
nausea treatment preparations identified in Applicant’s application under Section
2(e)(1) of the Trademark Act.
Decision: The refusal to register Applicant’s mark TUMMY NATURALS is
affirmed.