Whole Foods Market IP, L.P.

Trademark Trial and Appeal Board

Jan 6, 2015

No. 85820807 (T.T.A.B. Jan. 6, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: January 6, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Whole Foods Market IP, L.P.
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Serial No. 85820807
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Christopher L. Graff of Pirkey Barber PLLC,
for Whole Foods Market IP, L.P.
Jessica Ellinger Fathy, Trademark Examining Attorney, Law Office 110,
Chris A. F. Pedersen, Managing Attorney.
_____

Before Bucher, Mermelstein and Shaw,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Whole Foods Market IP, L.P. (“Applicant”) seeks registration on the Principal
Register of the mark COLLECTIVE CHEESE (in standard characters) for
Cheeses; dips and cheese spreads; confit in the nature of a
cooked fruit, meat, seafood, fish, poultry, or vegetable
based spread; dairy-based spreads; fruit spreads; fruit-
based spreads; garlic-based spread; hazelnut spread;
meat-based spreads; nut-based spread; peanut spread;
sandwich spread, namely, salty, sweet, vegetarian, fruit,
vegetable, meat, fish, herbal, spiced; vegetable-based
spreads; jellies and jams; butter; yogurts; edible oils and
fats, preserves and pickles; dairy products excluding ice
Serial No. 85820807
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cream, ice milk and frozen yogurt, in International Class
29.1
The Trademark Examining Attorney has 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 goods.2 The Examining
Attorney also issued a requirement to clarify the identification of goods on the
ground that the goods, as recited, are indefinite and may encompass goods in more
than one class contrary to statutory requirements and the rules governing
examining of applications. 15 U.S.C. §§ 1051(a)(2) and 1051(b)(2); 37 C.F.R.
§ 2.32(a)(6).
After the refusal was made final, Applicant appealed. The case is fully briefed.
For the reasons discussed below, we affirm the refusal to register and affirm the
requirement for a more definite identification of goods.
Mere Descriptiveness
I. Applicable Law
“A term 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 U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.

1 Application Serial No. 85820807 was filed on January 11, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
2 The Examining Attorney initially refused registration under Section 2(d), 15 U.S.C.
§ 1052(d), citing Registration No. 4263101 for the mark THE COLLECTIVE GREAT
DAIRY with a cow’s head design for “Dairy products, namely, milk, cheese, yogurt, crème
fraiche,” in International Class 29. Registrant disclaimed “COLLECTIVE GREAT DAIRY.”
The Examining Attorney withdrew the Section 2(d) refusal in her November 18, 2013 Office
Action which also made final the Section 2(e)(1) refusal.
Serial No. 85820807
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Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007)); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009-10 (Fed.
Cir. 1987). Whether a particular term is merely descriptive is determined in
relation to the goods for which registration is sought and the context in which the
term is used, not in the abstract or on the basis of guesswork. In re Abcor Dev.
Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d
1222, 1224 (TTAB 2002). In other words, the question is whether someone who
knows what the goods are will understand the mark to convey information about
them. DuoProSS Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d 1247, 103
USPQ2d 1753, 1757 (Fed. Cir. 2012); In re Tower Tech, Inc., 64 USPQ2d 1314,
1316-17 (TTAB 2002); In re Patent & Trademark Servs. Inc., 49 USPQ2d 1537, 1539
(TTAB 1998). “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.” Coach Servs. Inc. v. Triumph Learning LLC, 96 USPQ2d 1600, 1616
(TTAB 2010) (quoting In re Tennis in the Round, Inc., 199 USPQ 496, 497 (TTAB
1978)), vacated-in-part on other grounds, 668 F.3d 1356, 101 USPQ2d 1713 (Fed.
Cir. 2012).
II. Evidence and Arguments
The Trademark Examining Attorney placed into the record the following
dictionary definitions and excerpts from third-party websites showing use of the
term “collective” in connection with dairy farms.
Serial No. 85820807
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• A dictionary definition of “collective” from the Merriam-Webster Online
Dictionary (merriam-webster.com):3
collective adjective
1 : denoting a number of persons or things considered as one
group or whole
2 a : formed by collecting : AGGREGATED
b of a fruit : MULTIPLE
3 a : of, relating to, or being a group of individuals
b : involving all members of a group as distinct from its
individuals
4 : marked by similarity among or with the members of a group
5 : collectivized or characterized by collectivism
6 : shared or assumed by all members of the group
collective noun
1 : a collective body : GROUP
2 : a cooperative unit or organization; specifically : COLLECTIVE
FARM
3 : a helicopter control system governing lift
• A dictionary definition of “collective” as “a farm or business owned by the
government and run by a group of workers.” Macmillan Dictionary
(macmillandictionary.com).4
• An online dictionary definition of “collective” as “[o]f, relating to,
characteristic of, or made by a number of people acting as a group” and
“[a]n undertaking, such as a business operation, set up on the principles
or systems of collectivism.” Yahoo! Education (education.yahoo.com).5
• A dictionary definition of “collective farm” as “a farm operated
collectively.” Datasegment.com Online Dictionary (onlinedictionary.
datasegement.com).6
• A November 2, 2010 article on cheesemaking from seriouseats.com titled
The Future of American Cheesemaking Is in Vermont and stating in part,

3 Examining Attorney’s Office Action of November 18, 2013, pp. 4-6.
4 Examining Attorney’s Office Action of May 1, 2013, p. 5.
5 Examining Attorney’s Office Action of November 18, 2013, pp. 2-3.
6 Examining Attorney’s Office Action of May 1, 2013, pp. 6-7.
Serial No. 85820807
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“[T]he Kehlers’ best known cheese, Cabot Clothbound Cheddar, doesn’t
even bear their name. It was the result of a collaboration with the Cabot
dairy collective, whose products are nearly ubiquitous in finer
retailers.”7
• An October 25, 2007 article from newsreview.com titled Climate Counts
discussing an environmental consumer-advocacy group called
ClimateCounts.com. The group states it is sponsored by Stonyfield Farm
which is described as an organic dairy collective.8
• A National Park Service online article at www.nps.gov about the Point
Reyes National Seashore discussing the history of the Shafter dairy
collective which marketed butter and cheese products to the San
Francisco market during the 19th century.9
• An article from greendiningalliance.org titled Prairie farms: A friendly
locally-sourced collective describing the operations of a “local dairy
collective, Prairie Farms.” The article claims that “Milk from healthy,
comfy cows tastes better, too, which is why the farmers in the collective
are guided by [National Dairy Farm Program] F.A.R.M. standards for
animal welfare and receive regular audits and check-ups.”10
Applicant placed into the record the following dictionary definitions and excerpts
from third-party websites showing use of the term “collective” in connection with a
variety of goods and services. Applicant also included excerpts from several
websites to rebut the Examining Attorney’s showing that Stonyfield Farm and
Cabot are collectives, rather than cooperatives.
• The dictionary definition of “collective” from the Merriam-Webster Online
Dictionary, described above.11
• A dictionary definition from the Oxford Dictionaries (US English 2013)
defining “collective” as:12

7 Id. at 10.
8 Id. at 11.
9 Id. at 14.
10 Examining Attorney’s Office Action of November 18, 2013, pp. 9-10.
11 Applicant’s correspondence of October 23, 2013, pp. 46-47.
12 Id. at 42.
Serial No. 85820807
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adjective
done by people acting as a group:
a collective protest
• Belonging or relating to all the members of a group:
ministers who share collective responsibility
a collective sigh of relief from parents
• Taken as a whole; aggregate:
the collective power of the workforce
noun
a cooperative enterprise.
• a collective farm.
• An Internet webpage from a retail cheese store called “The Cheese Board
Collective” in Berkeley, California. The webpage notes that the store is a
“100% worker owned business.” (cheeseboardcollective.coop).13
• An Internet webpage from the “Richmond Food Collective” offering
“humane meat and dairy products” from “local meat, egg, and dairy
farms.” (richmondfoodcollective.blogspot.com).14
• An Internet webpage from “The Full Plate Farm Collective” offering a
“Finger Lakes Dairy Share” consisting of “11 deliveries of delicious dairy
products throughout the June-November season.” The webpage lists nine
New York state dairies participating in the collective and providing
products such as milk, cheese, and yogurt. (fullplatefarms.webs.com).15
• An Internet webpage from the “Curd Collective” an online store offering
“cheese of the world.” (curdcollective.com).16
• An Internet webpage offering for sale the “Collective Tools” brand cheese
slicer. (google.com).17
• Internet webpages from the Agri-Mark dairy farmer cooperative
(agrimark.coop) reciting the history of the cooperative and the ways in
which the cooperative benefits its members.18

13 Id. at 22.
14 Id. at 24.
15 Id. at 31-33.
16 Id. at 34-36.
17 Id. at 37.
18 Id. at 51-54.
Serial No. 85820807
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• Internet webpages from the Cabot dairy cooperative (cabotcheese.coop)
touting the quality of its dairy products, including cheese.19
• Internet webpages from stonyfield.com reciting the history of Stonyfield
Farm, a New Hampshire dairy cooperative and producer of yogurt.20

According to the Examining Attorney, the dictionary definitions “support[ ] the
position that no significant imagination is needed to understand a feature or
characteristic of the Applicant’s goods, namely, that the assorted products,
including cheese, originate from a collective farm.”21 Additionally, the Examining
Attorney argues that the Internet evidence “demonstrates that it is common in the
industry for such products to originate from farm collectives.”22
While the Examining Attorney’s evidence is somewhat limited, it nevertheless
establishes that the term “collective” is defined as a type of farm that is run as “a
cooperative unit or organization; specifically : COLLECTIVE FARM.” The Examining
Attorney’s Internet evidence is consistent with these dictionary definitions and
demonstrates that consumers are exposed to stories and articles describing some
dairy farms or dairy-product producers which are organized as collectives.
Moreover, the greendiningalliance.org article suggests that dairy products from
locally-sourced “collective” farms may be desirable to consumers seeking organic,
animal-friendly, or sustainable products. Based on this evidence, we find that
consumers, upon seeing the term “collective” in COLLECTIVE CHEESE are likely

19 Id. at 56-57.
20 Id. at 59-63.
21 Examining Attorney’s Br. at 4.
22 Id. at 5.
Serial No. 85820807
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to think the cheese products come from, or are associated with, dairy farms or dairy
product producers organized as collectives.
Applicant’s Internet evidence supports the conclusion that consumers
increasingly seek dairy products from organic or local dairy farms such as
collectives. For example, the Full Plate Farm Collective website lists nine dairy
farms making up the collective and providing consumers with locally made dairy
products, including cheese. Similarly, the stonyfield.com website proclaims “[w]e are
proud that because of our company and your support, we are able to keep hundreds
of organic farmers in business, and over 100,000 acres managed with organic
practices.” Thus, Applicant’s evidence merely confirms the popularity of organic and
locally-sourced dairy products provided by farms organized into groups, including
collectives. The fact that the term “collective” is used on other products such as
cheese slicers or that retail stores also may be organized into collectives does not
rebut the finding that “collective” is descriptive of the source of the goods when
applied to cheese.
Applicant argues that COLLECTIVE CHEESE is suggestive because “collective”
has multiple meanings relevant to Applicant’s goods:
[T]he term “COLLECTIVE” lacks a definitive meaning when
used in connection with the Applicant’s goods. Rather, a
consumer considering the mark COLLECTIVE CHEESE in
the context of Applicant’s goods will interpret the term
COLLECTIVE in Applicant’s Mark to present several
different nondescriptive meanings. Thus, the term has a
more nebulous meaning and, as such, falls short of describing
Applicant’s goods in any one degree of particularity.23

23 Applicant’s Br. at 3.
Serial No. 85820807
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This argument is unpersuasive. If a term has a primary significance that is
descriptive in relation to at least one of the recited goods or services, and does not
create any double entendre or incongruity, then the term is merely descriptive.
Here, the term “collective” has been shown to refer to a type of farm or a dairy
products producer which makes cheese. “Cheese” is the generic name of at least
some of the identified goods. Taken together, COLLECTIVE CHEESE merely
describes a cheese that has been produced by a dairy collective. The fact that
“collective” may have different meanings in different contexts is not controlling. See
In re RiseSmart Inc., 104 USPQ2d 1931, 1933 (TTAB 2012); In re Chopper Indus.,
222 USPQ 258, 259 (TTAB 1984); In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Moreover, the fact that some dairy product producers refer to
themselves as “dairy cooperatives,” rather than “dairy collectives,” does not
diminish the descriptiveness of “collective” when used on cheese. The evidence of
record shows that consumers have been exposed to articles about cheese and other
dairy products available from “collectives.”
Applicant also argues that COLLECTIVE CHEESE does not “describe a feature
or characteristic of Applicant’s goods with the degree of particularity required for a
refusal on the grounds of mere descriptiveness.”24 We disagree. The Internet
evidence of record is sufficient to demonstrate that consumers are exposed to
articles about dairy collectives and the perceived benefits of purchasing these
locally-sourced dairy products. Accordingly, we find COLLECTIVE CHEESE

24 Id. at 6.
Serial No. 85820807
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describes the goods with sufficient particularity so as to inform consumers of the
likely source of the goods, namely a dairy collective or collective farm.
Lastly, Applicant argues that any doubt regarding the mark’s descriptiveness
should be resolved on the Applicant’s behalf. However, in the present case, the
evidence of record leaves no doubt that the mark is merely descriptive.25
Identification of Goods
In order to comply with statutory and regulatory requirements for filing an
application, the wording of the identification must be clear and complete. 15 U.S.C.
§§ 1051(a)(2) and 1051(b)(2); 37 C.F.R. § 2.32(a)(6). The USPTO has discretion to
require the degree of particularity deemed necessary to identify with specificity the
services covered by the mark. See In re Omega SA, 494 F.3d 1362, 83 USPQ2d 1541,
1544 (Fed. Cir. 2007).
Applicant first argues that the requirement for a more definite identification is a
“new issue unfit for appeal” because the Examining Attorney waited until her brief
to highlight the “specific phrase considered to be objectionable.”26 We disagree. The
Office Action of November 18, 2013 maintained and made final the requirement for
an acceptable identification of goods and stated, inter alia, “[t]he wording ‘spreads’

25 Although not argued by the Examining Attorney, three of the five third-party
registrations made of record by the parties have disclaimed the term “collective.”
Registration No. 4263101 for the mark COLLECTIVE GREAT DAIRY and design for dairy
products disclaimed “collective great dairy”; Registration No. 3966644 for the mark NEST
COLLECTIVE for food products disclaimed “collective”; and Registration No. 4241261 for
the mark FATBACK COLLECTIVE and design for food preparation services disclaimed,
inter alia, “collective”. Our decision is consistent with the treatment of “collective” in these
three registrations.
26 Applicant’s Reply Br. at 2.
Serial No. 85820807
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in the identification of goods needs clarification because it is too broad and could
include goods classified in other international classes.”27 The fact that the same
Office Action incorrectly stated that Applicant “did not address the requirement for
amendments to the identification of goods”28 when Applicant did amend the
identification of goods, does not make the requirement a new issue on appeal.29
The Examining Attorney argues that the wording “sandwich spread, namely,
salty, sweet, … herbal, spiced” from the listing “sandwich spread, namely, salty,
sweet, vegetarian, fruit, vegetable, meat, fish, herbal, spiced” in the identification of
goods in International Class 29 is indefinite and must be clarified because it is too
broad and could include goods in other classes.30 In particular, the Examining
Attorney notes that the U.S. Acceptable Identification of Goods and Services
Manual (“ID Manual”) lists “chocolate-based spread also containing nuts,” “cocoa
spreads,” and “spreads consisting primarily of emulsified biscuits or cookies” as
properly classified in International Class 30.
The ID Manual lists various types of edible spreads in both International
Classes 29 and 30, with classification appearing to depend primarily on the
composition of the spreads. Thus, for example, cheese spreads, fruit spreads, meat-
based spreads, and nut-based spreads are all classified in International Class 29.
Conversely, chocolate-based and cocoa spreads are classified in International Class

27 Examining Attorney’s Office Action of November 18, 2013.
28 Id.
29 The better practice would have been for the Examining Attorney to explain which
instance of “spreads” in the amended identification of goods was indefinite.
30 Examining Attorney’s Br. at 8.
Serial No. 85820807
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30. Applicant’s use of the wording “salty, sweet … herbal, [and] spiced” provides
only information as to the taste of the spreads, rather than information as to the
composition of the spreads. Accordingly, the wording used by Applicant is indefinite
because it could describe goods in more than one international class.
Applicant nevertheless argues that the same wording was previously accepted
by the same Examining Attorney in two other applications owned by the same
applicant and approved for publication: Serial Nos. 85820814 and 85820798.31
Although consistency is desired in the examination of trademark applications, each
case must be must be decided on its own facts and the fact the same identification
was previously accepted, even by the same examining attorney in a related case,
does not compel the USPTO to accept an identification of goods that is indefinite.
See In re Omega SA, 83 USPQ2d at 1544 (upholding examining attorney’s
requirement for a more definite identification, notwithstanding applicant’s
ownership of several registrations in which the term “chronographs” appeared
without further qualification in the identification).
Finally, Applicant offers to amend the identification of goods via a proposed
amendment made in its reply brief. Such an amendment amounts to a request to
remand the application to the Examining Attorney for review of the amended
identification. It is too late in these proceedings to request a remand to amend an
indefinite identification of goods. See In re Thomas White Int’l Ltd, 106 USPQ2d
1158, 1160 n.2 (TTAB 2013) (in determining whether good cause has been shown,

31 Applicant’s Reply Br. at 2.
Serial No. 85820807
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the Board will consider both the reason given and the point in the appeal at which
the request for remand is made).
For the foregoing reasons, the requirement for a more definite identification of
goods is affirmed.
Decision: The refusal to register Applicant’s mark COLLECTIVE CHEESE
under Section 2(e)(1) of the Trademark Act is affirmed. The requirement for a more
definite identification of goods also is affirmed.