Zinpro Corp.

Trademark Trial and Appeal Board

Jun 29, 1999

No. 75145534 (T.T.A.B. Jun. 29, 1999)

Paper No. 10
ejs
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JUNE 29,99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Zinpro Corporation
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Serial No. 75/145,534
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Edmund J. Sease of Zarley, McKee, Thomie, Voorhees & Sease
for Zinpro Corporation.
Howard B. Levine, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______
Before Seeherman, Quinn and Wendel, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Zinpro Corporation has appealed from the refusal of
the Trademark Examining Attorney to register AMINO ACID
EXTRACTION PROCESS as a trademark for "animal nutritional
feed supplements."1 Registration has been refused pursuant
to Section 2(e)(1) of the Trademark Act, 15 U.S.C.

1 Application Serial No. 75/145,534, filed August 5, 1996, based
on an asserted bona fide intention to use the mark in commerce.
Ser. No. 75/145,534
2
1052(e)(1), on the ground that the mark is merely
descriptive of the goods.
Applicant and the Examining Attorney filed briefs, and
applicant filed a reply brief. An oral hearing was not
requested.
It is the Examining Attorney’s position that AMINO
ACID EXTRACTION PROCESS merely describes the
characteristics and use of the applicant’s animal
nutritional feed supplements. According to the Examining
Attorney amino acid extraction is a physiological event in
both humans and animals, by which amino acids are extracted
from muscles or organs, for the benefit or to the detriment
of the living organism. The Examining Attorney asserts
that amino acid extraction "is commonly observed in muscles
during and from exercise," and "also occurs in the
lactating mammary glands of cows." Brief, p. 3. The
Examining Attorney further states that "since there is no
evidence in the record to the contrary, it appears that the
applicant’s goods facilitate the occurrence of AMINO ACID
EXTRACTION in animals." Brief, p. 3. As a result, the
Examining Attorney contends that AMINO ACID EXTRACTION
PROCESS merely describes the purpose, use or feature of the
goods, namely, animal nutritional feed supplements that

Ser. No. 75/145,534
3
provide for, facilitate or enhance amino acid extraction,
or the amino acid extraction process, in animals.
In support of his position the Examining Attorney has
made of record the following dictionary definitions:2
amino acid: Biochem. Any of a class of
organic compounds that contains at
least one amino group, -NH2, and one
carboxyl group, -COOH: the alpha-amino
acids, RCH(NH2)COOH, are the building
blocks from which proteins are
constructed.
extraction: 1. An act or instance of
extracting: the extraction of a molar.
process: 1. A systematic series of
actions directed to some end: to devise
a process for homogenizing milk.
The Examining Attorney has also made of record excerpts
from six articles or abstracts, taken from various on-line
data bases, which refer to amino acid extraction:
…extraction of amino acids appears to
occur by increased amino acid oxidation
and gluconeogenesis. It is this
increase in hepatic amino acid
extraction in combination with
decreased protein synthesis that leads
to hypoaminoacidemia.
(article with headline referring to
glucagonoma syndrome 21 patients)
"Medicine," March 1996
The significantly increased forearm
aminoacid uptake and even greater leg
amino acid extraction observed in the
subjects receiving daily exercise

2 The Random House Unabridged Dictionary, 2d ed., © 1993.
Ser. No. 75/145,534
4
suggests that chronic submaximal
exercise produces a systemic as well as
exercised limb-specific enhancement of
tissue AA uptake.
Article entitled "Chronic submaximal
exercise as an adjunct to intravenous
feeding in man"
"Surg. Forum" 1985, Vol. 36
Hepatic fractional amino acid
extraction is increased by glucagon
action during exercise.
(Article entitled "Role of the
endocrine pancreas in control of fuel
metabolism by the liver during
exercise."
Int J. Obes Relat Metabl Disord, Oct.
1995
In order to evaluate the effect of DHAP
on muscle amino acid extraction during
exercise, we measured arterial
concentration and muscle exchange of
amino acids in 18 untrained healthy
male subjects…
J Sports Sci, Feb. 1993
Title: "Kinetics of amino acid
extraction by lactating mammary glands
in control and sometribove-treated
Holstein cows"
(no article text submitted by Examining
Attorney)
J Dairy Sci, Jan 1992
Nonesterified fatty acid and ketone
body are not significantly extracted by
the pig uterus whereas a significant
amino acid extraction occurs in late
pregnancy. Uterine uptake of amino
acids depends on maternal arterial
concentrations….
Pediatr Res, Nov. 1987
A term is merely descriptive, within the meaning of
Section 2(e)(1), if it immediately conveys information
Ser. No. 75/145,534
5
concerning a quality, characteristic, function, ingredient,
attribute or feature of a product or service. Moreover,
the question is not decided in a vacuum, but in relation to
the goods on which, or the services in connection with
which, it is used. See In re Venture Lending Associates,
226 USPQ 285, 286 (TTAB 1985). Thus, applicant’s argument
that AMINO ACID EXTRACATION PROCESS "could be indicative of
any number of goods, including food, vitamins, protein
mixtures, medications, etc." and that "there is nothing
about the mark which indicates it is being used for
animals" (brief, p. 4) is not persuasive. We must
determine the question of descriptiveness in terms of the
goods with which applicant intends to use the mark, i.e.,
animal nutritional feed supplements.
We note at the outset that the Examining Attorney has
provided a limited amount of evidence. It would have made
the decision-making process far easier if the Examining
Attorney had obtained from applicant information about the
specific nature of the goods on which the mark is intended
to be used. In this connection, we note that, according to
applicant’s reply brief, the mark may actually be in use,
Ser. No. 75/145,534
6
or at least the product has been created.3 We also take
exception to the Examining Attorney’s statement in his
brief, quoted above, that indicates that "since there is no
evidence in the record to the contrary," applicant’s goods
cause a particular activity. It is the Office’s burden to
prove that a mark is unregistrable, and therefore it is the
Examining Attorney’s responsibility to put evidence in the
record. We cannot draw a conclusion contrary to the
applicant’s position from the lack of such evidence.
Despite our criticism of the paucity of evidence
provided by the Examining Attorney, we nevertheless find
that the evidence of record is sufficient to demonstrate
that AMINO ACID EXTRACTION PROCESS is merely descriptive of
applicant’s identified goods. The articles discuss that
amino acid extraction is a physiologic process that occurs
in animals; therefore, applicant’s mark, used on an animal
nutritional feed supplements, would immediately convey to
purchasers that the feed supplements would have an effect
on this process. Thus, the mark describes a characteristic
or purpose of the goods.

3 The reply brief refers to submitted specimens, but no
specimens are in the file. As indicated above, this application
is based on intent-to-use, and no amendment to allege use, or
other specimens, appear to have been submitted.
Ser. No. 75/145,534
7
In reaching our conclusion that AMINO ACID EXTRACTION
PROCESS is merely descriptive, we have considered
applicant’s argument that, because there is no evidence
that competitors in the animal feed supplement industry
have ever used any of the words of applicant’s mark in
conjunction with their products, this shows that the term
is not descriptive. However, as applicant has stated,
applicant’s product is new, unique, and based on
proprietary technology. It would appear that the lack of
competitive uses is due to the fact that competitors’
products at this point do not have an effect on the amino
acid extraction process, rather than an indication that
this phrase is not merely descriptive. It is a well-
established principle that one cannot exclusively
appropriate a descriptive term simply because one is the
first user of the mark or the only producer of the
particular goods.
Decision: The refusal of registration is affirmed.
E. J. Seeherman
T. J. Quinn
H. R. Wendel
Administrative Trademark Judges
Trademark Trial and Appeal Board