87927380 (T.T.A.B. May. 4, 2020)

Wellness Bar LLC

Trademark Trial and Appeal BoardMay 4, 2020

87927380 (T.T.A.B. May. 4, 2020)

This Opinion is not a Precedent of the TTAB Mailed: May 4, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Wellness Bar LLC _____ Serial No. 87927380 _____ Rhett V. Barney of Lee & Hayes, P.C. for Wellness Bar LLC Andrea R. Hack, Trademark Examining Attorney, Law Office 108, Kathryn E. Coward, Managing Attorney. _____ Before Shaw, Heasley, and Larkin, Administrative Trademark Judges. Opinion by Heasley, Administrative Trademark Judge: Wellness Bar LLC (“Applicant”) seeks registration on the Principal Register of the mark THE WELLNESS BAR (in standard characters, with “BAR” disclaimed) for “Catering services; Juice bar services; Restaurant services; Restaurant services featuring acaí bowls, juices, and smoothies; Restaurant services, namely, providing of food and beverages for consumption on and off the premises,” in International Class 43.1 1 Application Serial No. 87927380 was filed on May 18, 2018, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and use in commerce since at least as early as July 16, 2014. Serial No. 87927380 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s proposed mark under Section 2(e)(1) of the Trademark Act on the ground that “THE WELLNESS BAR” is merely descriptive of the identified services. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal resumed. We affirm the refusal to register. I. Mere Descriptiveness A. Applicable Law Section 2(e)(1) of the Trademark Act provides that a term is unregistrable on the Principal Register if it “[c]onsists of a mark which (1) when used on or in connection with the goods [or services] of the applicant is merely descriptive or deceptively misdescriptive of them….” 15 U.S.C. § 1052(e)(1), cited in In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015). The statute’s use of the term “mark” is anomalous, “[f]or if it is ‘merely descriptive,’ it is not a trademark, and this is so even though the user intends it to be a trademark.” Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 44 n.3 (CCPA 1981). THE WELLNESS BAR comprises three words, two of which are not inherently distinctive. The word “THE” at the beginning “does not have any trademark significance. ‘The’ is a definite article. When used before a noun, it denotes a particular person or thing.” In re Thor Tech, Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). The word “BAR” at the end is disclaimed, effectively conceding that the word Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket system. Serial No. 87927380 - 3 - is not inherently distinctive. Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB 2013), aff’d, 565 F. Appx. 900 (Fed. Cir. 2014); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc. 89 USPQ2d 1844, 1851 (TTAB 2008). Applicant and the Examining Attorney dispute whether the word WELLNESS is descriptive or suggestive in the context of Applicant’s identified services. The issue, then, is whether THE WELLNESS BAR, taken as a whole, is merely descriptive or suggestive. “A term is deemed to be merely descriptive of goods or services, within the meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services.” In re Canine Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1598 (TTAB 2018) (citing In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978)). A mark is deemed suggestive if it requires imagination, thought and perception to ascertain the nature of the goods or services. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd, 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (citing In re Abcor Dev. Corp., 200 USPQ 215). When determining whether a mark is merely descriptive, we must consider the commercial impression of a mark as a whole: In considering the mark as a whole, the TTAB “may not ‘dissect’ the mark into isolated elements,” without ever “consider[ing] . . . the entire mark,” DuoProSS, 695 F.3d at 1252, 1253, but it “may weigh the individual components of the mark to determine the overall impression or the descriptiveness of the mark and its various components,” In re Oppedahl & Larson LLP, 373 F.3d 1171, 1174 (Fed. Cir. 2004) (citation omitted). Serial No. 87927380 - 4 - Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018). “Evidence of the public’s understanding of [a] term . . . may be obtained from any competent source, such as purchaser testimony, consumer surveys, listings in dictionaries, trade journals, newspapers[,] and other publications.” Real Foods, 128 USPQ2d at 1374 (quoting Royal Crown Co. v. The Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1046 (Fed. Cir. 2018)). “These sources may include [w]ebsites, publications and use ‘in labels, packages, or in advertising material directed to the goods [or services].’” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1710 (Fed. Cir. 2017) (quoting In re Abcor Dev. Corp., 200 USPQ at 218). A descriptiveness refusal is proper with respect to all of the identified services in an International Class if the mark is descriptive of any of the services in that class. In re Chamber of Commerce, 102 USPQ2d at 1219. B. Applicant’s and the Examining Attorney’s Arguments and Evidence Applicant argues that THE WELLNESS BAR is suggestive, not descriptive. According to the dictionary, “wellness” is “the quality or state of being in good health especially as an actively sought goal lifestyles that promote wellness.”2 A “bar” is “a room or establishment where alcoholic drinks and sometimes food are served.”3 There is no dictionary definition in the record for “wellness bar,” Applicant notes.4 Together, the words THE WELLNESS BAR do not convey an immediate meaning, but an 2 Merriam-Webster.com, March 11, 2019 Response to Office Action at 45. 3 Id. March 11, 2019 Response to Office Action at 21. 4 Id. Serial No. 87927380 - 5 - incongruity, Applicant argues: “‘WELLNESS BAR’ would be understood as being a bar that serves ‘wellness,’ which clearly cannot be served on a plate.”5 “‘Wellness’ is not something that can be ordered from the menu, wellness is not something that consumers are able to purchase when they enter Applicant’s facility, and the foods and beverages served to those consumers do not in and of themselves offer any kind of wellness.”6 Applicant maintains that an incongruous meaning results from the combination of words in THE WELLNESS BAR, and consumers must make a mental “leap” to understand Applicant’s services: This quality is often found in compound marks, where the combination of words that do not normally belong together require a consumer to exercise mature thought. In re Shutts, 217 U.S.P.Q. 363, 365 (TTAB 1983) (finding that “incongruous word combinations whose import would not be grasped without some measure of imagination and ‘mental pause’” indicates that the term is suggestive rather than merely descriptive). In other words, a mark is suggestive if its “words . . . do not describe applicant’s goods with any degree of particularity but rather are merely suggestive of the end result thereof.” In re Aid Lab.’s, Inc., 221 U.S.P.Q. 1215, 1216 (TTAB 1983).7 To illustrate this point, Applicant notes that a registration issued in 2013 for with disclaimers of “KITCHEN” and “BAR,” but not “WELLNESS.”8 Applicant 5 Applicant’s brief, 7 TTABVUE 10. 6 March 11, 2019 Response to Office Action at 3. 7 Applicant’s brief, 7 TTABVUE 16. 8 Reg. No. 4297299, Sept. 13, 2019 Response to Office Action at 31. Serial No. 87927380 - 6 - acknowledges, however, that another registration issued six years later, in 2019, for with a disclaimer of “HEALTH & WELLNESS BAR.”9 Applicant concludes that “THE WELLNESS BAR is highly suggestive of Applicant’s services, but it does not merely describe them.”10 There is, however, a very thin line of demarcation between suggestive and descriptive terms, Nautilus Grp., Inc. v. ICON Health & Fitness, Inc., 372 F.3d 1330, 1340, 71 USPQ2d 1173, 1181 (Fed. Cir. 2004), and as the Examining Attorney points out, a term may through common use move from the suggestive to the descriptive side of the line: [A]lthough a term at its inception or adoption may have been arbitrary or even suggestive in character, it may thereafter through use in a descriptive sense over a period of time lose its distinguishing and origin denoting characteristics and be regarded by the relevant section of the purchasing public as nothing more than a descriptive designation…. In re Int’l Spike, Inc., 190 USPQ 505, 507 (TTAB 1976) quoted in In re Dig. Research Inc., 4 USPQ2d 1242, 1243 (TTAB 1987). The Examining Attorney contends that such erosion in distinctiveness has taken place with respect to “WELLNESS” in general and “WELLNESS BAR” in particular: The wording “health food” may once have sounded odd and health food stores were once relegated to small establishments on the edge of town where the hippies shopped. Now there are health food aisles and departments in every major grocery chain, and “health food” has become part of the vernacular. So too “WELLNESS” is growing in usage with 9 Reg. No. 5817723, Sept. 13, 2019 Response to Office Action at 34. 10 March 11, 2019 Response to Office Action at 17. Serial No. 87927380 - 7 - regard to food and food services, and “WELLNESS BAR” has become more prevalent in usage for restaurant services to the point that it has an understood commercial meaning.11 In support of this position, the Examining Attorney adduces evidence of over a score of “wellness bars” currently serving healthful food items like those identified by Applicant: acai bowls, juices, and smoothies.12 For example: • Vitality Health and Wellness Bar According to a local Brooklyn publication describing the Vitality Health and Wellness Bar, “Just in time for your New Year’s cleanse, a new fresh juice and health bar has opened its doors …. Vitality Health and Wellness Bar started serving its full menu of shakes, smoothies, bowls, and juices bright and early on January 1st….”13 As the Examining Attorney notes, this registrant owns the registration for for restaurant services, issued in 2019, disclaiming “HEALTH & WELLNESS BAR.”14 The Examining Attorney maintains 11 Examining Attorney’s brief, 9 TTABVUE 14-15. 12 Examining Attorney’s brief, 9 TTABVUE 8-11; Sept. 11, 2018 Office Action at TSDR 9-96; March 13, 2019 Office Action at 8-27. 13 MyrtleAvenue.org 9/11/2018, Sept. 11, 2018 Office Action at 17-19. 14 Reg. No. 5817723, issued July 30, 2019. Serial No. 87927380 - 8 - that the disclaimer of “HEALTH & WELLNESS BAR” in this 2019 registration (unlike the 2013 registration for DAILY KITCHEN & WELLNESS BAR and design) evinces the growing use of “wellness bar” as a descriptive term.15 Applicant questions whether this disclaimer was required by the examining attorney during the prosecution of the application.16 But even a voluntary disclaimer disavows any exclusive right to use a specified word or phrase. In re Franklin Press, Inc., 597 F.2d 270, 201 USPQ 662, 665 (CCPA 1979). The Examining Attorney adduces further examples of third-party use of “wellness bar”: • SALÚD Juicery & Wellness Bar 17 15 Examining Attorney’s brief, 9 TTABVUE 15. 16 See Applicant’s reply brief, 10 TTABVUE 6. 17 DowntownStateCollege.com 9/11/2018, Sept. 11, 2018 Office Action at 22-25. Serial No. 87927380 - 9 - • SHAKE Your Wellness Bar 18 • Pura Vida Wellness Bar in Miami offers acai smoothies, fresh squeezed juices, “Wellness Shots” with ginger, lemon, turmeric or wheat grass, and organic acai bowls.19 • Daily Kitchen & Wellness Bar in Las Vegas “serves up health choice breakfast, lunch and dinner menus, as well as offering a wellness bar with blended drinks.”20 • Indie Girl Wellness Bar in Honolulu offers typical healthy fare: 21 • Naturewell, in Los Angeles, describes itself as a “Wellness Bar.” 18 ShakeWellnessBar.com 9/11/2018, Sept. 11, 2018 Office Action at 26-27. 19 AllMenus.com 9/11/2018, fitboxmethod.com 9/11/2018, Sept. 11, 2018 Office Action at 28- 32, 55-56. 20 Vegas.Eater.com 9/11/2018, Sept. 11, 2018 Office Action at 34-35. 21 TheStreetsSocialHouse.com 9/11/2018, Sept. 11, 2018 Office Action at 45. Serial No. 87927380 - 10 - 22 • Chill Wellness Bar in Amarillo, Texas 23 • ULicious Smoothie and Juice Bar in Lawrence, Massachusetts lists juices and smoothies under its “Wellness Bar.” 24 • The Lettuce Inn in Concord, California describes itself as an “Organic Juice & Smoothie Wellness Bar” 22 CnTraveler.com 9/11/2018, Sept. 11, 2018 Office Action at 50. 23 Zmenu.com 9/11/2018, Sept. 11, 2018 Office Action at 53. 24 Uliciousness.com 9/11/2018, Sept. 11, 2018 Office Action at 57. Serial No. 87927380 - 11 - 25 • Dirt restaurant in Miami, Florida describes itself as “an eatery and wellness bar combining fresh, great-tasting food with health, convenience, and simplicity.”26 • Nourish Juice and Wellness Bar in Houston, Texas, describes food items like Applicant’s: 27 • Serene, in St. Petersburg, Florida, describes itself as “a pop-up wellness bar” that “features smoothies, smoothie bowls, and wellness lattes.”28 • Blend and Press Wellness Bar in Savannah, Georgia offers smoothies, cold pressed juices, Acai Bowls, and “Wellness Shots.”29 25 Instagram.com 9/11/2018 Sept. 11, 2018 Office Action at 61. 26 DirtEatClean.com 9/11/2018, Sept. 11, 2018 Office Action at 71. 27 Houston.Eater.com 3/13/2019, March 13, 2019 Office Action at 15-17. 28 March 13, 2019 Office Action at 21-25. 29 Grubhub.com 9/11/2018, Sept. 11, 2018 Office Action at 9-11. Serial No. 87927380 - 12 - • Palm Beach Wellness Bar in West Palm Beach, Florida “specializes in organic and gluten-free fare for health-conscious folks” offering “a variety of smoothies, juices” and other fare.30 The Examining Attorney’s evidence also shows eight travel websites advertising international “wellness bars” to U.S. travelers, such as the Frubar Juicery Health & Wellness Bar in Canada,31 the Sattva Wellness Bar in Panama,32 the El Local Wellness Bar in Tijuana,33 the Pueblo Bonito resort in Cabo San Lucas, Mexico, which invites guests to: 34 30 PalmBeachPost.com 9/11/2018 Sept. 11, 2018 Office Action at 77-79. 31 FrubarJuicery.com 9/11/2018 Sept. 11, 2018 Office Action at 94. 32 VegGuide.org 9/11/2018, Sept. 11, 2018 Office Action at 68. 33 RestaurantGuru.com 9/11/2018, Sept. 11, 2018 Office Action at 82. 34 PuebloBonito.com 3/13/2019, March 13, 2019 Office Action at 26-27. Serial No. 87927380 - 13 - C. Discussion and Analysis In our view, this third-party evidence establishes that the term “wellness bar” has entered common parlance through popular usage, describing establishments that serve healthful food and drink. This case calls to mind another “WELL” case, In re Well Living Lab Inc., 122 USPQ2d 1777, 1778 (TTAB 2017), aff’d, 749 F. Appx. 987 (Fed. Cir. 2018). In that case, the applicant applied to register WELL LIVING LAB for scientific research in the field of human health and wellness in indoor environments. Faced with a refusal based on mere descriptiveness, the applicant argued, as here, that the mark presented an incongruity in that the “unusual and incongruous combination of the words ‘well,’ ‘living,’ and ‘lab’ certainly forces consumers to take a ‘mental pause’ to grasp the import of the Applicant’s mark, thus rendering the mark, at the very least, suggestive.” Id. at 1779. It further contended that its mark suggested services “with a possible, aspirational result, thus requiring imagination and perception on the part of consumers.” Id. The Board nonetheless found the mark descriptive. Based on ten third-party websites using the term “well-living,” it found: This modern-day usage of the term “well-living” has more significance and probative value than the dictionary meaning in terms of the likely perception of consumers. While “well-living” in a somewhat archaic sense may mean living a moral or virtuous life, in its current sense it clearly means living a healthy life focused on diet, nutrition and physical fitness. The predominant idea conveyed by the evidence overall is that the term “well-living” describes a healthy or fit way of life. When the descriptive term “well living” is combined with the non-distinctive term “lab,” the entire phrase WELL LIVING LAB conveys no more than the sum of its individual parts. Id. at 1781. Serial No. 87927380 - 14 - Here, the Examining Attorney has adduced over twice as much third-party evidence as in Well Living Lab. This third-party evidence shows that “wellness bar,” taken as a whole, has come to describe establishments that serve healthful food and drink—such as acai bowls, juices, and smoothies—to promote wellness. Given its widespread use by third-party restaurateurs, and its frequent exposure to relevant customers, which include health-conscious diners, this modern usage of the term has gained a well understood and recognized meaning, even though it does not appear in the dictionary. Id. See also In re Gen. Permanent Wave Corp., 118 F.2d 1020, 49 USPQ 184, 186 (CCPA 1941) (“Because appellant has combined two common English words, which in combination are not found in the dictionaries, is wholly immaterial.”); see generally TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1209.03(b) (Oct. 2018). As the Examining Attorney puts it, [B]ased on the widespread use, the mark is clearly not “incongruous” in relation to the services. The widespread usage of the wording “WELLNESS BAR” with restaurant-type services shows quite the contrary – it shows congruity in meaning – that consumers are well-acquainted with what a “WELLNESS BAR” offers and have an understanding that such an establishment would offer healthful fare.35 So while “wellness” cannot be ordered from a menu or served on a plate, “wellness bars” purport to serve healthful food and drink that promote their customers’ well- being. The widespread third-party use of “wellness bar” establishes that meaning. It also brings this case closer to Well Living Lab, where the proposed mark was found to be merely descriptive, than to Applicant’s cited case law, where there was no evidence of third-party use of the mark the mark, In re Aid Labs., Inc., 221 USPQ at 35 Examining Attorney’s brief, 9 TTABVUE 11-12. Serial No. 87927380 - 15 - 1216 (finding PEST PRUF for animal shampoo with insecticide suggestive of a possible, aspirational end result).36 In this case, health-conscious diners might not believe that restaurant services featuring acai bowls, juices, and smoothies will immediately improve their well-being; but they would immediately perceive that wellness bars feature healthful foods designed to promote wellness. The test is “whether someone who knows what the goods and services are will understand the mark to convey information about them.” DuoProSS Meditech v. Inviro Med. Devices, 103 USPQ2d at 1757 (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)). “THE WELLNESS BAR” coveys that sort of information. It conveys an immediate idea about a quality, characteristic, feature, function, or purpose of a restaurant’s food and beverage services. See In re Chamber of Commerce, 102 USPQ2d at 1219. Applicant’s critiques of the Examining Attorney’s arguments and third-party usage evidence are not well taken. “Wellness,” Applicant contends, is not offered by a food service, but by “doctors, therapists and health centers.”37 But the fact that a term “may have other meanings in different contexts is not controlling,” In re Canine Caviar Pet Foods, 126 USPQ2d at 1597. Determining the descriptiveness of a mark is done in relation to an applicant’s goods and/or services, the context in which the mark is being used, and the possible significance the mark would have to the average purchaser because of 36 Applicant’s brief, 7 TTABVUE 16. 37 Applicant’s brief, 7 TTABVUE 16-20; March 11, 2019 Response to Office Action at 71-79, 134-36, 157-166. Serial No. 87927380 - 16 - the manner of its use or intended use. See In re Chamber of Commerce, 102 USPQ2d at 1219. The Examining Attorney’s third-party evidence indicates the significance THE WELLNESS BAR would have to the average purchaser in the context of restaurant services. Applicant argues that the Examining Attorney’s third-party evidence “was indicative not of descriptive use of ‘wellness bar,’ but of trademark use of ‘WELLNESS BAR,’”38 as the third-party competitors use the term “wellness bar” in their trade names. As we have seen, though, many of the third-party competitors do not use the term in their names, but in their description of their restaurant services. For example, Naturewell in Los Angeles calls itself a “wellness bar”;39 ULicious Smoothie and Juice Bar in Lawrence, Massachusetts lists juices and smoothies under “Wellness Bar” on its menu;40 and Dirt restaurant in Miami describes itself as “an eatery and wellness bar combining fresh, great-tasting food with health, convenience, and simplicity.”41 Applicant argues that they have to explain what a “wellness bar” is, but the widespread use of the term, often with the same sort of healthful fare, indicates that it has entered into common parlance. See In re Well Living Lab, 122 USPQ2d at 1781; In re Dig. Research, 4 USPQ2d at 1243. Furthermore, as the Examining Attorney points out, the third parties that use “Wellness Bar” in their names use it in a descriptive sense, just as other restaurants use the term “café” descriptively in their names. See, e.g., In re Dixie Rests., Inc., 105 38 Applicant’s brief, 7 TTABVUE 7, 12-15. 39 CnTraveler.com 9/11/2018, Sept. 11, 2018 Office Action at 50. 40 Uliciousness.com 9/11/2018, Sept. 11, 2018 Office Action at 57. 41 DirtEatClean.com 9/11/2018, Sept. 11, 2018 Office Action at 71. Serial No. 87927380 - 17 - F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (affirming TTAB’s finding that “DELTA,” not the disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA CAFE). Similarly, calling a particular restaurant a “wellness bar” does not render the usage non-descriptive where it denotes a type of restaurant.42 Applicant argues that the Examining Attorney’s references to generic terms are inapt because the present refusal is based on descriptiveness, not genericness.43 But generic terms are “the ultimate in descriptiveness.” H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986). So evidence of genericness will a fortiori support a mere descriptiveness refusal. See generally TMEP § 1209.01(c). Applicant also objects that the Examining Attorney has cited to websites for wellness bars in foreign countries, such as Canada and Mexico.44 But it is settled that “[i]nformation originating on foreign websites or in foreign news publications that are accessible to the United States public may be relevant to discern United States consumer impression of a proposed mark.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) quoted in In re Well Living Lab, 122 USPQ2d at 1781 n.10 and In re Odd Sox LLC, 2019 USPQ2d 370879, at *5 (TTAB 2019). The websites considered above show travel websites advertising international “wellness bars” to U.S. travelers, such as the Pueblo Bonito resort in Cabo San Lucas, Mexico, which invites guests to “strike the perfect balance at our new wellness bar.”45 42 Examining Attorney’s brief, 9 TTABVUE 13. 43 Applicant’s brief, 7 TTABVUE 10. 44 Applicant’s brief, 7 TTABVUE 12-15; Applicant’s reply brief, 10 TTABVUE 8. 45 PuebloBonito.com 3/13/2019, March 13, 2019 Office Action at 26-27. Serial No. 87927380 - 18 - Both the foreign and domestic evidence of third-party use shows that the term “wellness bar” has entered into common acceptance in the United States as a descriptive term.46 Applicant finally argues that THE WELLNESS BAR is a double entendre. Some of the examples it has provided, such as health care providers or spas, use the phrase “raising the wellness bar” to connote an increase in well-being. In that sense, the word “bar” denotes a standard or metric that may be raised, rather than an establishment that serves food and drink.47 “For trademark purposes, a ‘double entendre’ is an expression that has a double connotation or significance as applied to the goods or services.” TMEP § 1213.05(c), cited in In re Calphalon Corp., 122 USPQ2d 1153, 1163 (TTAB 2017). The multiple interpretations that make an expression a ‘double entendre’ must be associations that the public would make fairly readily, and must be readily apparent from the mark 46 Applicant also objects that certain of the Examining Attorney’s arguments were raised for the first time in her brief, not during prosecution of the application. Specifically, Applicant complains of the Examining Attorney’s observations that the definitions of “wellness” and “bar” result in a composite mark that is merely descriptive, and that the recent trend is toward disclaiming “wellness bar” in registrations. Applicant’s reply brief, 10 TTABVUE 3- 4. We find that these issues were comprehended in the course of prosecution, as well as Applicant’s brief; the objection is overruled. Applicant also notes that the Examining Attorney’s brief attaches exhibits that were not introduced during prosecution. Applicant’s reply brief, 10 TTABVUE 6. These exhibits appear to be inadvertently attached from another appeal concerning a surname refusal, and will be given no consideration. Examining Attorney’s brief, 9 TTABVUE 18-35. 47 Applicant’s brief, 7 TTABVUE 20-21. See, e.g., Reg. No. 3999814 for RAISING THE BAR ON WELLNESS for dietary, nutritional, and vitamin supplements. Sept. 13, 2019 Response to Office Action at 39. “[C]ontact Stucky Chiropractic Center to explore how we can help you and your team raise the wellness bar and keep you competitive!” StuckyChiropractic.com “[T]here are plans to raise the wellness bar….” AmericanSpa.com 3/9/2019, “We must raise the wellness bar without raising eyebrows.” KindaKrunchyAK.com 3/9/2-19 (discussing essential oils), March 11, 2019 Response to Office Action at 158, 166, 177. Serial No. 87927380 - 19 - itself. In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1105 (TTAB 2018); In re Calphalon, 122 USPQ2d at 1163-64; TMEP § 1213.05(c). Applicant, however, does not use the term in that double sense. It uses THE WELLNESS BAR in the same sense in which all of its third-party competitors use it: to denote an establishment that serves healthful food and drink designed to improve one’s wellness. Applicant’s specimen, submitted with its application, shows that usage: Serial No. 87927380 - 20 - 48 THE WELLNESS BAR is thus not a double entendre. It is a commonly accepted descriptive term that is in the public domain. Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 57 USPQ2d 1720, 1722 (Fed. Cir. 2001) (“[D]escriptive terms are in the public domain and should be free for use by all who can truthfully employ them to describe their goods [or services].”) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543-44 (1920)). II. Conclusion For the foregoing reasons, we find that THE WELLNESS BAR is merely descriptive of Applicant’s services under Section 2(e)(1). 15 U.S.C. § 1052(e)(1). Decision: The refusal to register Applicant’s mark is affirmed. 48 Applicant’s specimen, May 18, 2018.