From: Spruill, Darryl
`
`Sent: 3/9/2012 11:29:34 AM
`
`To: TTAB EFiling
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`CC:
`
`Subject: U.S. TRADEMARK APPLICATION NO. 77486441 - OMEGA ALPHA -
`OAPH 100 TMU - EXAMINER BRIEF
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`
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`*************************************************
`Attachment Information:
`Count: 9
`Files: b-1.jpg, b-2.jpg, i-1.jpg, i-2.jpg, i-3.jpg, duplicate name 61973 b-1.jpg, duplicate
`name 61973 b-2.jpg, b-3.jpg, 77486441.doc
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`

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`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`
`
` APPLICATION SERIAL NO.
`
`77486441
`
`
`
`
`
`
`*77486441*
`
`
`GENERAL TRADEMARK INFORMATION:
`http://www.uspto.gov/main/trademarks.htm
`
`TTAB INFORMATION:
`http://www.uspto.gov/web/offices/dcom/ttab/index.html
`
`
`
`
`
` MARK: OMEGA ALPHA
`
`
`
` Omega Alpha Pharmaceuticals Inc.
`
`
` CORRESPONDENT ADDRESS:
` EUGENIA S HANSEN
`
` HEMINGWAY & HANSEN LLP
` 1700 PACIFIC AVENUE SUITE 4800
` DALLAS, TX 75201
`
`
`
` APPLICANT:
`
`
`
` CORRESPONDENT’S REFERENCE/DOCKET NO:
` OAPH 100 TMU
` CORRESPONDENT E-MAIL ADDRESS:
` ghansen@hh-iplaw.com
`
`EXAMINING ATTORNEY'S APPEAL BRIEF
`
`I. INTRODUCTION
`
`
`
`
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`This is an appeal from the Trademark Examining Attorney’s final refusal to register
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`applicant’s mark, OMEGA ALPHA in Standard Character for "a list of 102 different types
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`of dietary, nutritional, and herbal supplements," on the grounds that the applied-for mark
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`consists of or includes deceptive matter in relation to the identified goods under Trademark Act
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`§2(a), 15 U.S.C. §1052(a).1
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`
`
`II. FACTS
`
`
`1 Applicant has applied for a laundry list of 102 different types of dietary, nutritional, and herbal
`supplements, which if listed would amount to 17 pages of the 25 page limitation for appeal briefs. As a
`result, it is requested that the Board accept the following statement identifying the types of goods that
`applicant is seeking registration as "a list of 102 different types of dietary, nutritional, and herbal
`supplements," as being acceptable to describe applicant's goods throughout the appeal brief.
`
`

`
`On May 29, 2008, applicant, Omega Alpha Pharmaceuticals Inc. (hereinafter
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`"applicant"), filed an application to register the standard character mark Omega Alpha, under
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`§1(a) of the Act, 15 U.S.C. §1051(a), on the Principal Register for “a list of 102 different types
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`of dietary, nutritional, and herbal supplements.”
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`On October 15, 2008, examining attorney refused registration of the proposed mark,
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`OMEGA ALPHA Standard Character, on the grounds of procedural informalities concerning
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`the identification of goods being unacceptable, the requirement of applicant’s certificate of
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`foreign registration, applicant clarifying its intent to maintain both the §§1(b) and 44(e) filing
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`basis, and a claim of ownership of a prior registration.
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`Applicant in its response filed April 15, 2009, amended its identification of goods, and
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`stated that it would submit a copy of its certificate of foreign registration once it was issued.
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`On June 4, 2009, examining attorney issued a suspension letter pending receipt of a true
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`copy, a photocopy, a certification, or a certified copy of a foreign registration from applicant's
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`country of origin. Also, examining attorney maintained and continued the procedural
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`requirements for an acceptable identification of goods, and a claim of ownership of the prior
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`registration. Thereafter, on December 9, 2009, examining attorney issued a suspension inquiry
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`letter inquiring as to the status of the foreign registration of the proposed mark, and notifying
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`applicant that the procedural informalities were maintained and continued.
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`On April 8, 2010, applicant submitted a true copy of a foreign registration from
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`applicant's country of origin along with an English translation. Also, applicant amended its
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`identification of goods.
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`Next on May 5, 2010, examining attorney accepted applicant’s amended identification of
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`goods, and a true copy of a foreign registration from applicant's country of origin along with its
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`English translation. However, applicant did not respond to the claim of ownership of the prior
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`registration. Thus, a Final Refusal for registration was issued requiring applicant to respond to
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`the claim of ownership of the prior registration.
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`

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` On May 7, 2010, applicant filed a Request for Reconsideration claiming ownership of
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`prior registration U.S. Registration No. 3111385.
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`Upon further consideration of the proposed mark, examining attorney issued an office
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`action on July 7, 2010, on the grounds that the applied-for mark OMEGA ALPHA Standard
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`Character consisted of or included deceptive matter in relation to the identified goods under
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`Trademark Act §2(a), 15 U.S.C. §1052(a). In support of the refusal, examining attorney
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`provided internet evidence demonstrating that the wording OMEGA in relation to dietary,
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`nutritional, and/or herbal supplements is (1) an ingredient that is important to a significant
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`portion of the relevant consumers’ purchasing decision, and (2) Omegas such as omega-3,
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`omega-6, and omega-9 have specific health benefits and efficacy that affects consumers’ decision
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`to purchase the goods listed in the application. Also, the identification of goods was deemed to
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`still be unacceptable. See evidence attached to Office Action dated 7/10/10.
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`Applicant responded to the office action on January 6, 2011, arguing against the
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`substantive refusal. Specifically, alleging that (1) the term Omega is the 24th letter of the Greek
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`alphabet; (2) consumers would view the proposed mark Omega Alpha as denoting or meaning
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`“from the end to the beginning” based on the Greek letter meaning; (3) there exists registered
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`marks encompassing the term OMEGA and ALPHA; and (4) examining attorney had not
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`provided sufficient evidence to support the §2(a) refusal. Also, applicant amended the
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`identification of goods.
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`The herein application was reassigned to this examining attorney, who on May 22, 2011,
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`issued a Final Refusal under Trademark Act §2(a), 15 U.S.C. §1052(a). Examining attorney
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`acknowledged (1) that the term OMEGA is the last or 24th letter of the Greek alphabet, and
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`ALPHA is the 1st letter of the Greek alphabet; and (2) the term OMEGA is defined as “End,”
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`and the term ALPHA is defined as “Beginning.” Also, examining attorney accepted applicant’s
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`amended identification of goods. However, examining attorney maintained that the refusal was
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`appropriate because the term OMEGA in applicant’s mark would be viewed by the relevant
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`

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`purchasing consumer as denoting OMEGA in relation to fatty acids (3, 6, and/or 9) which
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`provides health benefits in relation to dietary, nutritional, and/or herbal supplements. See
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`evidence attached to Final Refusal dated 5/22/11. Also, examining attorney stated for the record
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`that applicant did not present evidence demonstrating that the consumers would perceive the
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`meaning of the proposed mark, Omega Alpha, as meaning “from the end to the beginning.”
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`On November 18, 2011, applicant filed a Notice of Appeal of the examiner's final refusal
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`to the Trademark Trial and Appeal Board (hereinafter the “Board”). Thereafter, on January 18,
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`2012, the brief was forwarded to the examining attorney in accordance with Trademark Rule
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`2.142(b).
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`For the reasons to follow, the examining attorney requests that the Board AFFIRM the
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`refusal under §2(a) of the Trademark Act.
`
`
`
`III. ISSUE ON APPEAL
`
`Whether the proposed mark, OMEGA ALPHA, in particular the term OMEGA,
`as used in connection with dietary, nutritional, and/or herbal supplements, is
`deceptive under Trademark Act §2(a), 15 U.S.C. §1052(a), when the
`supplements do not encompass omega fatty acids, and as such should be refused
`registration.
`
`
`
`IV. ARGUMENT
`
`THE PROPOSED MARK OMEGA ALPHA, IN PARTICULAR THE TERM OMEGA,
`SHOULD BE REFUSED REGISTRATION BECAUSE (1) THE GOODS DO NOT
`CONTAIN OMEGA FATTY ACIDS, WHICH ARE KNOWN TO HAVE SPECIFIC
`HEALTH BENEFITS, (2) PURCHASERS ARE LIKELY TO BELIEVE THAT THE
`MISDESCRIPTION ACTUALLY DESCRIBES THE GOODS, AND (3) THE
`MISDESCRIPTION IS LIKELY TO AFFECT A SIGNIFICANT PORTION OF THE
`RELEVANT CONSUMERS’ DECISION TO PURCHASE THE GOODS BASED ON
`THE HEALTH BENEFITS.
`
`
`
`
`
`

`
`A. The applied for mark, OMEGA ALPHA, particularly the term OMEGA
`misdescribes the character, quality, function, composition, or use of the dietary,
`nutritional, and/or herbal supplement goods.
`
`In making the determination of whether a mark is deceptive under Trademark Act §2(a)
`
`
`
`the following criteria must be met:
`
`(1) The applied-for mark consists of or contains a term that misdescribes the character,
`quality, function, composition, or use of the goods and/or services;
`
`(2) Prospective purchasers are likely to believe that the misdescription actually describes
`the goods and/or services; and
`
`(3) The misdescription is likely to affect a significant portion of the relevant consumers’
`decision to purchase the goods and/or services.
`
`
`
`See In re Budge, 857 F.2d at 775, 8 USPQ2d at 1260; In re ALP of S. Beach Inc., 79 USPQ2d at
`
`1010; TMEP §1203.02(b); see also In re Spirits Int’l, N.V., 563 F.3d 1347, 1353, 1356, 90
`
`USPQ2d 1489, 1492-93, 1495 (Fed. Cir. 2009) (holding that the test for materiality incorporates a
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`requirement that a “significant portion of the relevant consumers be deceived”).
`
`
`
`Examining attorney maintains that the term OMEGA as used within the dietary,
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`nutritional, and/or herbal supplements industry denotes supplements containing omega fatty
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`acids as a material ingredient. Here, applicant’s mark encompasses the term OMEGA, but not all
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`of its goods encompass omega fatty acids. Specifically, applicant’s identification of goods that
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`is of record appears to only reference three (3) goods on the list of 102 goods that appears to
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`encompass omega fatty acids, specifically:
`
`(32) Herbal supplements for the treatment of immune disorders, neural
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`imbalances, joint problems, cancer, inflammation, kidney function, Acquired
`
`Immune Deficiency Syndrome and cardiovascular disease; Herbal supplements
`
`containing Essential Fatty Acids, namely, a combination of Borage Oil, Flax
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`

`
`Oil, and Fish Oil; (34) Herbal supplements to provide immune support and
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`greater resistance to cold and flu infection; Herbal supplements to help prevent
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`Alzheimer's disease, arthritis, auto-immune diseases, cancer, depression,
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`diabetes, heart disease, hyperactivity, and ulcers; Herbal supplements to
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`increase energy level and ability to concentrate; Herbal supplements to help
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`avoid premature births, low birth weight and pregnancy complications; Herbal
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`supplements to support healthy sexual function; Herbal supplements for use
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`with Attention Deficit Hyperactivity Disorder type disorders and to improve
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`mental activity; Herbal supplements containing a combination of Fish Oil and
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`Vitamin E (D-Alpha Tocopherol) (35) Herbal supplements for use as an anti-
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`inflammatory agent to lessen symptoms of migraine headaches, premenstrual
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`syndrome, endometriosis, rheumatoid arthritis, multiple sclerosis, lupus,
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`scleroderma and other autoimmune disorders; Herbal supplements to help
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`regulate and strengthen the immune system; Herbal supplements to prevent
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`cancer; Herbal supplements to soothe irritable bowel disorders; Herbal
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`supplements to lower cholesterol and triglycerides; Herbal supplements to
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`increase the body's response to insulin; Herbal supplements containing a
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`combination of Flax Seed Oil and Vitamin E.
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`Since all of the goods do not encompass omega fatty acids, such omission misdescribes the
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`character, quality, function, composition, or use of the dietary, nutritional, and/or herbal
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`supplements.
`
`B. Prospective purchasers are likely to believe that the misdescription actually
`describes the goods, namely, dietary, nutritional, and/or herbal supplements
`encompassing omega fatty acids. Also, the misdescription is likely to affect a
`significant portion of the relevant consumers’ decision to purchase the goods.
`
`
`
`

`
`
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`The second and third prongs of the test will be addressed together because of the logical
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`nexus they have, and both are necessary to find that the proposed mark is deceptive. In the
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`herein case, examining attorney maintains that not only will prospective purchasers likely believe
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`that the term Omega actually misdescribes the goods, namely, dietary, nutritional, and/or herbal
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`supplements encompassing omega fatty acids, but also the misdescription is likely to affect a
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`significant portion of the relevant consumers’ decision to purchase the supplement goods.
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`
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`In support of this argument, examining attorney provided evidence from the Internet
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`outlining the health benefits and importance of Omega Fatty Acids, and the material purchasing
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`decision consumers make based upon goods encompassing Omega Fatty Acids. See evidence
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`attached to Final Refusal dated 5/22/11, which is provided below:
`
`Seapet.com, the website provides lines of animal health products. The website
`states that it provides products encompassing omega 3, and that these are
`necessary and essential fatty acids for pets.
`
`Amazingandwonderful.com website article entitled “Omega Three is a Vital
`Supplement to Ensure A Balanced Nutritious Food Intake,” stating: “Omega-3
`Pet fish oil is derived exclusively from wild anchovies and sardines and
`enclosed in convenient soft gels. The important Omega-3 fatty acids, EPA
`and DHA, support healthy skin, coat, joints, heart, and the development
`and maintenance of the brain and eyes.”
`
`
`Ellie’s Store website, http://www.ellies-whole-grains.com/Omega-3-for-
`Pets.html, the following information was obtained:
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`If your pet lacks Omega 3 essential fatty acids, they may suffer from:
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`(cid:131) Very itchy or scaly skin, Dandruff + frequent scratching
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`(cid:131) Allergy-like symptoms, such as eczema or itching
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`(cid:131) Excessive shedding + hair loss
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`(cid:131) Weakened visual ability + development
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`(cid:131) Vulnerable to environmental pollutants + toxins
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`(cid:131) Weakened immune system
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`(cid:131) Reduced learning ability
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`

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`(cid:131) A thin, dull looking, and/or discolored coat
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`(cid:131) Frequent infections such as ear infections
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`(cid:131) Weight loss from not getting enough essential fatty acids
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`(cid:131) Weight gain due to frequent eating because he isn't getting
`needed nutrition
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`(cid:131) Slow healing of wounds
`
`Veterinarians Recommend Omega 3 for pets. Veterinarians agree that pets that
`don't have enough Omega 3 essential fatty acids will eventually have health
`problems including dry, itchy skin and dull or shedding coat. Animals have
`much the same nutritional requirements as we do, especially needing essential
`fatty acids. Essential fatty acids are critical for basic cellular healing and
`maintenance; they must be eaten in the diet just like minerals + vitamins.
`Unfortunately, our pets are not getting these critical nutrients.”
`
`Herbal Extracts + Plus website, http://www.herbalextractsplus.com/omega3-
`fatty-acids.cfm, the website provides information regarding the History and
`Benefits of Omega 3. The website states in particular that “Omega-3 Fatty
`Acids (EPA & DHA) are essential for normal growth and development.
`Found in fish oil, flaxseeds, canola oil and other sources, Omega-3 Acids are
`now easily taken in supplements that can help to support normal blood
`pressure levels and good cardiac health, ease inflammatory problems of all
`kinds and possibly even improve brain function and behavioral problems.
`Omega-3 is truly Essential!”
`
`Health Plus RX website, www.healthplusrx.com, states the following “The
`benefits of omega 3 are overwhelming and scientists have proved time and
`again that the presence of these three essential fatty acids in the human body
`can have many positive effects on the brain and can help reduce the effects of
`some diseases of the brain e.g. Alzheimer’s disease. People who suffer from
`manic depression are recommended to supplement their diets using the omega
`3 capsules. The cell walls of the cells in the human body are kept healthy by
`the omega 3 fatty acids; cell health means improved general health. Omega 3
`capsules have been known to have an effect on bipolar disorder as well. It
`increases the effectiveness of the brain functions, therefore increase the mental
`capacity of the brain.”
`
`
`
`Additionally, evidence was provided by the previous examining attorney, see evidence attached
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`to Office Action dated 7/7/10, which some is provided below:
`
`PubMed.gov website,
`http://www.ncbi.nlm.nik.gov/pubmed/16815401acids.cfm, the website
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`

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`provides the article Efficacy of omega-3 fatty acids in preventing age-related
`macular degeneration. The article states that omega-3 fatty acids are
`considered potentially important antioxidants and are being considered as an
`arm of the “Age-Related Eye Disease Study II clinical trial.
`
`Touch Cardiology website, http://www.touchcardiology.com/articles/omega-3-
`fatty-acids-science-efficacy-and-clinical-use-cardiology, the website provides
`the article Omega-3 Fatty Acids-Science, Efficac, and Clinical Use in
`Cardiology. The article states: “Studies have shown that omega-3 fatty acids
`(FAs) can promote cardiovascular health by both primary and secondary
`prevention of cardiac disease, and most notably by reducing fatal
`cardiovascular events including sudden cardiac death (SCD). For example,
`recent evidence from secondary prevention trials has suggested that intake of
`850mg/day of omega-3 FAs can reduce the risk of coronary heart disease
`(CHD) events by 25% and SCD by about 45%.1 Furthermore, of the three
`known omega-3 FAs there is evidence that eicosapentanoic acid (EPA) is
`particularly biologically important. Given the strength of the evidence, blood
`levels of omega-3 FAs may have value as biomarkers to evaluate risk for
`cardiovascular events, leading to opportunities for earlier intervention in high-
`risk cases.”
`
`Ezine@rticles website, http://ezinearticles.com/?Health-Benefits-of-Omega-3-
`Salmon&id=950357, the website provides the article discussing that “Omega 3
`fats, also known as polyunsaturated fats or essential fatty acids, are good for
`promoting overall health. They are primarily obtained from fatty fish like
`salmon, herring, mackerel, sardines and hoki. Omega 3 salmon is very
`beneficial for people of all ages and it should be added to everyday diet.”
`
`The Free Dictionary by Farlex, http://medical-
`dictionary.thefreedictionary.com/omega, providing a patient discussion forum
`board where questions and answers are posted regarding omega 3 fatty acids,
`and the responses outlined health benefits of omega 3 fatty acids.
`Merriam-Webster's Online Dictionary, 11th Edition http://www.merriam-
`webster.com/dictionary/omega-3, defining the term Omega-3 as “being or
`composed of polyunsaturated fatty acids that have the final double bond in the
`hydrocarbon chain between the third and fourth carbon atoms from the end of
`the molecule opposite that of the carboxyl group and that are found especially
`in fish, fish oils, green leafy vegetables, and some nuts and vegetable oils.”
`
`Memorial Sloan-Kettering Cancer Center,
`http://www.mskcc.org/mskcc/html/69316.cfm, the website states that “A type
`of polyunsaturated fatty acid (PUFA) derived mainly from fish oil, omega-3
`fatty acids are used as dietary supplement for depression, to lower cholesterol,
`and to reduce the risk of heart attack. . . . [D]ata from a randomized trial
`suggest that omega-3 may be useful in reducing the risk of progression to
`psychiatric disorders and as a safe preventive measure in young adults at a risk
`for psychotic conditions. . . .Omega-3 fatty acid supplementation lowered
`cholesterol and may reduce recurrence in patients with history of stroke . . . .
`They may also help patients with ulcerative colitis . . . . In adults with
`
`

`
`rheumatoid arthritis, reduction in NSAID use was reported after omega-3 fatty
`acid supplementation. Omega-3 may lower the magnitude of the body's
`inflammatory response and can reduce sunburn sensitivity. Reviews of trials
`using omega-3 fatty acids have shown possible benefits for patients with cystic
`fibrosis. . . . . Results from a recent clinical trial suggest that dietary
`supplementation with fish oil may help reduce the symptoms of systemic lupus
`erythematosus.”
`
`Dictionary .com http://dictionary.reference.com/browse/omega-6?r=66,
`defining the term Omega-6 as “being or composed of polyunsaturated fatty
`acids in which the first double bond in the hydrocarbon chain occurs between
`the sixt and seventh carbon atoms from end of the molecule most distant from
`the carboxylic acid group and which are found especially in vegetable oils,
`nuts, beans, seeds, and grains.”
`
`Peter Lamas Online Glossary,
`http://www.lamasbeauty.com/glossary/glossary_O.htm, defining the terms
`Omega-3, Omega-6, and Omega-9, and the benefits of the each. Specifically,
`some of the benefits of each are: Omega-3: regulate the body’s production of
`cholesterol, improve immune functions, alleviate arthritis symptoms and
`inflammation, prevents plaque in arteries; Omega-6: provides wide range of
`anti-inflammatory, anti-infection, and anti-spasm functions; Omega-9:
`improves cell-to-cell communication, lubricates joints, reduces cellular and
`tissue inflammation, heat, redness, swelling, and pain, and helps regulate the
`immune system.
`
`
`
`
`
`All of the evidence demonstrates that OMEGA fatty acids provide vital health benefits to
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`both humans and pets, and consumers purchasing decisions are material because a significant
`
`portion of the relevant consumers’ decision to purchase the goods are because they encompass
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`omegas. Particularly, the evidence demonstrates that omega fatty acids provide benefits that
`
`affects the body’s system, namely, immune, cellular, anti-inflammatory, circulatory, arthritis, and
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`provides a great deal of other functions, benefits and protection. In reviewing applicant’s
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`laundry list of goods that is of record, many of the supplements specified are for improving or for
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`the treatment of the bodily functions which omega fatty acids also benefit as specified above. For
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`example, some of applicant’s supplements specify the following:
`
`(20) Herbal supplements to help prevent cancer; Herbal supplements for heart
`health; Herbal supplements to assist calcium absorption and utilization; Herbal
`supplements for high blood pressure, fibromyalgia, diabetes, multiple sclerosis
`and rheumatoid arthritis; Herbal supplements containing Vitamin D; 23)
`
`

`
`Herbal supplements to enhance and balance the immune system; Herbal
`supplements to aid in the treatment of diabetes, obesity, and terminal illnesses;
`Herbal supplements to counteract bacteria and toxins in the blood and
`lymphatic systems; Herbal supplements for use as an antiviral; Herbal
`supplements to remove foreign substances that cause allergic reactions; Herbal
`supplements containing Colostrum; (29) Herbal supplements to stimulate the
`immune system and combat bacterial infection; Herbal supplements to reduce
`inflammation of
`the digestive, respiratory and urinary
`tracts; Herbal
`supplements to treat fever, colds and flu ; Herbal supplements to treat fungal
`infections; Herbal supplements containing a combination of Echinacea and
`Goldenseal; (52) Herbal supplements for the treatment of acute and chronic
`inflammation (94) Herbal supplements for use as an expectorant, cough
`suppressant, and reconciliatory for equine; Herbal supplements for use as an
`anti-inflammatory for Pharyngitis in equine; Herbal supplements to increase
`blood flow in capillaries; Herbal supplements to help remove stagnant toxins
`from the lungs of equine; Herbal supplements for the treatment of respiratory
`conditions in equine; Herbal supplements to treat infections of the upper
`respiratory tract and to help support the lungs and aid in drainage.
`
`
`Thus, it is clear that consumers purchasing applicant’s supplements would likely purchase them
`
`on the mistaken belief that they encompass omega fatty acids.
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`Also, applicant’s arguments regarding the terms Omega and Alpha retaining their Greek
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`letter significance is without merit. Examining attorney acknowledged in the Final Refusal dated
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`5/22/11, the significance of the terms OMEGA and ALPHA being (1) the 24th and 1st letters of
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`the Greek Alphabet, and (2) the terms may be defined as End and Beginning respectively.
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`However, applicant did not provide any evidence demonstrating that consumers would perceive
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`the meaning of the proposed mark OMEGA ALPHA as meaning “from the end to the beginning,”
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`as alleged by applicant in its response to the Office Action dated 1/6/11. Nevertheless, examining
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`attorney has provided a significant amount of evidence demonstrating that the term OMEGA in
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`regards to dietary, nutritional, and/or herbal supplements connotes a specific meaning of
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`referring to omega fatty acids.
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`To further refute applicant’s arguments regarding the significance of the Greek alphabets,
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`examining attorney requests that the Board take Judicial Notice of additional dictionary evidence
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`defining the terms BETA, BETA-TEST, and IOTA by the following dictionaries:
`
`

`
`The term BETA is defined as “1: the 2d letter of the Greek alphabet — see
`alphabet table 2: beta particle 3: a measure of the risk potential of a stock or
`an investment portfolio expressed as a ratio of the stock's or portfolio's
`volatility to the volatility of the market as a whole 4: a nearly complete
`prototype of a product (as software) <released in beta> <the beta version>.”
`See Merriam-Webster's Online Dictionary, 11th Edition
`http://www.merriam-webster.com/dictionary/beta.
`
`The term Beta-Testing as “a test of a new or modified piece of computer
`software by customers who volunteer to do so; to test (software) in this way
`Compare alpha-test.” See Collins English DictionaryOnline
`http://www.collinsdictionary.com/dictionary/english/beta-testing.
`
`The term IOTA is defined as “1: the 9th letter of the Greek alphabet — see
`alphabet table 2: an infinitesimal amount : jot <did not show an iota of
`interest>.” See Merriam-Webster's Online Dictionary, 11th Edition
`http://www.merriam-webster.com/dictionary/iota.
`
`
` “Judicial notice” refers to a court or adjudicating body’s authority to accept as evidence well-
`
`known and indisputable facts for the purpose of convenience and without requiring a party’s
`
`proof. Black’s Law Dictionary 923 (9th ed. 2009). The Trademark Trial and Appeal Board can
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`take judicial notice of definitions obtained from dictionaries in printed format. TBMP §1208.04;
`
`see Fed. R. Evid. 201; 37 C.F.R. §2.122(a). In addition, the Board can also take judicial notice of
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`online dictionaries available in printed format or online dictionaries that are readily available and
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`capable of being verified, e.g., dictionaries that are available in specifically denoted editions via
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`the Internet and CD-ROM. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006); In re
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`CyberFinancial.Net, Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002); TMEP §710.01(c).
`
`As demonstrated by the definitions of the terms BETA and IOTA, it is true that both are
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`defined as being Greek alphabets, similar to OMEGA and ALPHA. However, when the words
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`are shown in a different context, i.e., beta and beta-test of computer software, and not showing
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`an iota of interest in something, they connote significance other than merely Greek alphabets.
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`Thus, the Board should not be persuaded that the term OMEGA has retained its Greek alphabet or
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`alleged biblical significance. Rather, it should review the proposed mark in a similar manner as
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`other Greek letter alphabets (Beta and Iota) and their context of goods and services, which here
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`the term OMEGA when used in connection with dietary, nutritional, and/or herbal supplements
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`connotes a specific meaning of referring to omega fatty acids.
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`Contrary to applicant’s position, the evidence of record demonstrates that consumers
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`would specifically purchase supplements on the premise that the term OMEGA would denote that
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`the goods encompass Omega fatty acids based on the essential health and/or nutritional value that
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`omegas provide for both humans and pets.
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`To further substantiate the refusal, examining attorney references the Board’s ruling in
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`the opposition proceeding Bayer Aktiengesellschaft v. Stamatios Mouratidis, 2010 TTAB LEXIS
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`218 (May 21, 2010) where the Board utilized the three-prong deceptiveness test under Trademark
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`Act §2(a) to find that the mark ORGANIC ASPIRIN for “dietary supplements for human
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`consumption” was both deceptively misdescriptive under §2(e)(1) and deceptive under §2(a).
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`In Bayer, applicant sought to register the proposed mark ORGANIC ASPIRIN in Standard
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`Character for “dietary supplements for human consumption.” Id. Opposer Bayer
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`Aktiengesellschaft opposed registration of the proposed mark on the grounds that the mark
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`ORGANIC ASPIRIN as applied to dietary supplements is deceptive under §2(a) of the
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`Trademark Act of 1946, 15 U.S.C. §1052(a), and is deceptively misdescriptive under §2(e)(1) of
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`the Trademark Act, 15 U.S.C.§ 1052(e)(1). Id.
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`In Bayer, the parties after conducting discovery stipulated to certain facts, particularly
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`important they stipulated that (1) Applicant's goods do not contain acetylsalicylic acid; and (2)
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`Acetylsalicylic acid is a synthetic compound.” Id. at 4. The Board in making its determination
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`under §2(a) adhered to the three-prong test regarding deceptive matter:
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`(1) The applied-for mark consists of or contains a term that misdescribes the character,
`quality, function, composition, or use of the goods and/or services;
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`(2) Prospective purchasers are likely to believe that the misdescription actually describes
`the goods and/or services; and
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`(3) The misdescription is likely to affect a significant portion of the relevant consumers’
`decision to purchase the goods and/or services.
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`Id. at 5. With respect to the first prong of the test, the Board reviewed the definitions of the two
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`(2) terms noting that the term ORGANIC denoted goods that are without drugs, hormones, or
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`synthetic chemicals, and the term ASPIRIN is defined as Acetylsalicylic acid, which is a
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`synthetic compound. Id. at 7. The Board found that the term ASPIRIN was misdescriptive of
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`the goods because it was likely that dietary supplements could encompass aspirin, and applicant’s
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`goods did not encompass aspirin. Id. at 8. As to the second prong, the Board reviewed ample
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`evidence taken from applicant’s website providing statements comparing the benefits of its goods
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`being similar to aspirin, stating that its goods encompass “naturally occurring aspirin, and
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`suggesting that there are two (2) types of aspirin (Organic Aspirin and Synthetic Aspirin). Id. at
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`9-10. Thus, the Board determined that consumers would likely believe that the misdescription
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`actually describes that the goods are organic. Id.
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`Applicant attempted to persuade the Board with the argument that the proposed mark
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`ORGANIC ASPIRIN is inherently distinctive because (1) organically grown aspirin does not
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`exist, and (2) the combination of the terms is incongruous. Id. at 11-12. The Board found
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`applicant’s arguments without merit, and held (1) that the mark ORGANIC ASPIRIN is simply
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`the “literal commercial impression that applicant's products are, or contain, a natural aspirin
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`product,” Id. at 12, and (2) with respect to the incongruity of the proposed mark the Board
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`stated the following:
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`Furthermore, we do not agree with applicant's argument that the incongruous
`combination of the words "Organic" and "Aspirin" to form ORGANIC
`ASPIRIN "reliably dissuades consumers from believing the goods are made of
`aspirin, since such a belief is not plausible. [*13] " n14 Applicant's
`conclusion is based on the premise that consumers know that there is no such
`thing as organic asp