Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA544380
`ESTTA Tracking number:
`06/21/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`85518756
`OMEGA VALLEY FARMERS, LLC
`THE 3 OMEGAS
`JOSEPH S. HEINO
`DAVIS & KUELTHAU, S.C.
`111 E KILBOURN AVE STE 1400
`MILWAUKEE, WI 53202-6613
`UNITED STATES
`jheino@dkattorneys.com
`Appeal Brief
`11530809.PDF(357136 bytes )
`11530693.PDF(1631039 bytes )
`Patrick M. Bergin
`pbergin@dkattorneys.com
`/Patrick M. Bergin/
`06/21/2013
`
`Proceeding
`Applicant
`Applied for Mark
`Correspondence
`Address
`
`Submission
`Attachments
`
`Filer's Name
`Filer's e-mail
`Signature
`Date
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application of
`Agricultural Omega Solutions, LLC and
`Omega Valley Farmers, LLC
`
`Serial No. 85/518,756
`
`Filed: January 18,2012
`
`Trademark: THE 3 OMEGAS
`
`\-/‘-/\.2\./\.y\..g'\....r'\../‘-._-’
`
`\_/
`
`Trademark Trial and Appeal Board
`U.S. Patent and Trademark Office
`
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Law Office 109
`
`Trademark Attorney:
`
`David Collier, Esq.
`
`APPLICANTS’ MAIN BRIEF
`
`UNDER TMBP § 1203.01
`
`Introduction
`
`Agricultural Omega Solutions, LLC and Omega Valley Farmers, LLC (“Applicants”) hereby
`
`appeal from the Examining Attorney's final refusal to register the above—identified mark dated
`
`October 24, 2012, and respectfully requests the Trademark Trial and Appeal Board (“TTAB") to
`
`reverse the Examining Attorney's decision.
`
`Applicants’ Trademark _
`
`Applicants seek registration on the Principal Register of their mark:
`
`THE 3 OMEGAS
`
`for “meat, namely, beef and pork; fish; poultry and game; eggs; and dairy products, namely,
`
`milk, buttermilk, non-alcoholic egg nog, half and half, whipping cream, yogurt, butter, sour
`
`cream, dry buttermilk powder, dry milk powder, cheese, cream cheese, and cottage cheese; all of
`
`the foregoing containing omega acids” in Int’l Class 29; for “ice cream, ice milk and frozen
`
`

`
`yogurt; flour; all of the foregoing containing omega acids” in Int’l Class 30; and for “animal feed
`
`containing omega acids” in Int’l Class 31 (‘‘Applicants’ Mark”).
`
`The Rejection
`
`The Examining Attorney refused registration of Applicant’s Mark contending that the mark
`
`as applied to the goods is “merely descriptive.” Office Action dated October 24, 2012.
`
`In that final Office Action, the Examining Attorney expounded his position contending the
`
`“there are three types of omega-3 fatty acids, specifically, ALA, EPA and DHA.” Indeed, the
`
`final Office Action is replete with references to the “omega-3” fatty acids and appears to be
`
`hopelessly entrenched with the notion that gng “omega-3” fatty acids are relevant and that there
`
`are “three types of omega-3” fatty acids. However, the final Office Action states, in part, the
`
`following:
`
`Furthermore, according to the applicant’s (sic) website, “Agricultural Omega
`Solutions LLC (AgO3) supports financially strong, farm supply co-ops located in the Med-
`West with its core services providing specialty custom feed supply. Technologies increase
`the Omega 3 fatty acid content of the targeted animals daily ration which increase the
`Omega 3 content of the animal products for human consmnption. The technology and
`application ofthe process naturally balance the Omega 6 to Omega 3 (emphasis added).
`
`Applicants respectfully submit that this is a tacit confirmation that the mark THE 3
`
`OMEGAS is not, and cannot be, referring in a limiting way to just omega-3 fatty acids, or to the
`
`“three types of omega-3 fatty acids,” because it also references omega—6 fatty acids.
`
`Applicants further submit that the world of fatty acids is not limited to omega-3 and omega-6
`
`fatty acids. Indeed, there are also omega-7 and omega-9 fatty acids, as evidenced by the attached
`
`Exhibits D, E and F.1 Each exhibit will be discussed in Applicants’ argument presented below.
`
`1 Exhibits A1-A37, B l -B 13 and Cl-C23 are already of record in this matter, those exhibits having been filed with
`Applicants’ response to the first Office Action.
`
`

`
`Argument
`
`1. Applicant’s Mark Is A Composite Mark That Must Be Considered In Its Entirety
`
`Applicants respectfully submit that the THE 3 OMEGAS mark is a “composite” mark.
`
`Accordingly, the Examining Attorney cannot depart from the rule that marks should be
`
`considered in their entireties and not improperly dissected. Colgate-Palmolive Co. v. Carter-
`
`Wallace, Inc. 167 U.S.P.Q. 272 (C.C.P.A. 1970). As the U.S. Supreme Court has stated: “The
`
`commercial impression of a trademark is derived from it as a whole, not from its elements
`
`separated and considered in detail.” Estate ofP. D. Beckwith, Inc. v. Commissioner 0fPatents,
`
`252U.S. 538, 545-46 (1920). Thus, it is the impression which the mark as a whole creates on the
`
`average reasonably prudent buyer and not the parts thereof which is important.
`
`In the first Office Action, dated May 1, 2013, identifiers were proposed by the Examining
`
`Attorney to add the phrase “. . .all of the aforementioned goods are made in significant part of
`
`omega acids (emphasis added).” In Applicants’ view, this identifier phrase went too far and was
`
`misleading. Accordingly, Applicants responded, instead, by adding the phrase “. . .all of the
`
`foregoing containing omega acids.”2
`
`Applicants then went one step further by disclaiming the word “OMEGA” apart from the
`
`mark as shown. Now, it is apparently the Examining Attorney's position that, because
`
`Applicants have disclaimed the descriptive word "OMEGA," the word “OMEGA” is the
`
`dominant portion of the mark sought to be registered and that it is the only word of the mark that
`
`is capable of distinguishing Applicants’ goods in commerce. Applicants respectfully traverse
`
`that position and the attempt to minimize the impact of the number “3” in the mark and the word
`“THE.” This position also overlooks the fact that the mark "THE 3 OMEGAS“ is a unitary term
`
`(which is a composite mark) and it is the unit which creates the commercial impression upon
`
`2 The proposed amended identifiers were subsequently accepted in the final Office Action.
`
`

`
`potential customers. Such customers neither know nor care Whether or not a part of a mark is
`
`disclaimed. Disclaimers have no effect upon purchasers. Purchasers do not know about
`
`"disclaimers," "dominant portions" or "distinguishing features." They are impressed by the mark
`
`as they see it or hear it, and they do not ordinarily stop to analyze it. Ex Parie Maya De Mexico,
`
`103 U.S.P.Q. (BNA) 158, 1954 WL 5556 (Comm'r Pat. & Trademarks 1954); Supply Mfg. Co. v.
`
`King Trimmings, Inc, 220 F. Supp. 947, 139 U.S.P.Q. (BNA) 163 (S.D. N.Y. 1963).
`
`2. The Applicants’ Mark, in its Entirety, does not Merely Describe Appiicants’ Goods
`
`To -be “merely” descriptive, the term must be “only” descriptive, i.e., the term serves no
`
`purpose-other than to describe the goods or services.
`
`In re Quick-Print Copy Shop, Inc., 205
`
`U.S.P.Q. 505 (C.C.P.A. 1980).
`
`If a mark suggests, however, a number of possible uses or
`
`characteristics of the goods or services, including one that is descriptive, the mark is not merely
`
`descriptive.
`
`In re National Tea Co., 144 U.S.P.Q. 286, 287 (T.T.A.B. 1965) (NO BONES
`
`ABOUT IT not merely descriptive of ham).
`
`There is but a thin line between the two types of marks (descriptive versus suggestive);
`
`where there is doubt whether a mark is descriptive or suggestive, that doubt should be resolved
`
`in favor of the applicant. In re Bel Paese Sales Co.,
`
`1 U.S.P.Q.2d 1233, 1986 WL 83304
`
`(T.T.A.B. 1986).
`
`Applicants’ Mark is, at most, suggestive of Applicants’ goods. While it may be Stated that the
`
`word “OMEGA” conveys characteristics of the goods, the number “3” placed in front of the
`
`word “OMEGA” and the word “THE” placed in front of the number “3,” is distinctive as applied
`
`to the goods, thus rendering the mark not descriptive, but suggestive.
`
`The final Office Action attempts to unduly narrow the mark to use with goods containing only
`
`omega-3 fatty acids. As stated earlier, both the first and the final Office Actions seem hopelessly
`
`entrenched in the notion that the goods with which the Applicants’ Mark is used relate only to
`
`

`
`omega-3 fatty acids. They are, however, not so limited. The final Office Action, as discussed
`
`earlier, acknowledges that omega-6 fatty acids are also involved Further, the fact that omega-6,
`
`omega—7 and omega-9 fatty acids are also known to the purchasing public undermines any notion
`
`of just “three” of anything.
`
`In view of “four” fatty acids, one cannot assume that omega-3 fatty
`
`acids are the only fatty acids concerned with the Applicants’ Mark.
`
`In “layman’s terms,” Exhibit D states as follows:
`
`Most of us have heard of omega-3 essential fatty acids, and maybe omega-6 essential
`fatty acids. There are also omega-9 fatty acids, which are not “essential,” that is, you don’t
`have to get them in your diet so you won’t die, and there is yet another group of useful but
`non-essential fatty acids known as the omega—7’s.
`
`In more technical terms, Exhibit E states, in relevant part, the following:3
`
`a methyl
`A fatty acid molecule is shaped like a caterpillar with two different ends:
`group and a water-soluble end that is the carboxyl end. There are different families of fat_ty
`acids in feed: omega-3, omega-6, omega-7 and omega-9. The most common numbering
`system is called the omega system. This system numbers carbon atoms in sequence,
`starting from the methyl end. The other commonly used system, called the delta (d)
`system, starts at the acid end and numbers the carbon atoms in reverse direction (emphasis
`added).
`
`Indeed, as pointed out above, Applicants specifically reference two of the four fatty acids on
`
`their website, namely omega-6 and omega-3 fatty acids.
`
`Lastly, Exhibit F discusses the balance needed for balancing omega-3 fatty acids with omega-
`
`6 and omega-9 fatty acids, thus reinforcing the notion that the world of omega-type fatty acids
`
`are not limited to omega-3 fatty acids or to the three types of omega-3 fatty acids.
`
`3. Many Registrations Containing the Word “OMEGA” Exist in the PTO’s TESS Records,
`Some Without Disclaimers of Just the Word “OMEGA,” in the Relevant Classes of Goods
`
`That Applicants’ Mark is suggestive and not descriptive is borne out by the many registrations
`
`that have been granted by the Trademark Office and many without a disclaimer of the word
`
`“OMEGA” in Int’l Classes 29, 30 and 3l.
`
`3 Noting in particular that Exhibit E is drawn to animal feed.
`
`

`
`A sample of active registrations is shown in the below charts (the charts also noting instances
`
` in which disclaimers of other wordin but not 'ust the word “OMEGA ” were re uired):
`
`
`
`DISCLAIMER
`
`“SKIM AND OMEGA-3 + COQ10”
`
`4
`
`4
`
`4.
`
`4‘
`
`44
`
`44
`
`4
`
`ALGAE
`
`4
`
`OMEGA 3
`
`EPA DHA OMEGA 3
`EPA DHA OMEGA 3
`
`EPA DHA OMEGA 3
`
`,,
`
`,,
`
`,,
`
`,,
`
`INT’L CLASS 029:
`
`
`
`
`
`Efifibit MARK/REGISTRATION NO.
`
`SKIM PLUS WITH OMEGA-3
`
`A1
`
`42
`
`43
`
`A4
`
`
`
`+C0Q10
`4,096,767
`
`ALGAE T0 OMEGA
`4,044,105
`
`WE BRING OMEGA-3 T0 LIFE
`3,944,270
`
`OMEGA 3 PLUS PARMALAT
`3,795,852
`
`EPA DHA OMEGA 3
`
`EPA DHA OMEGA 3
`
`3,803,340
`3,795,847
`
`EPA DHA OMEGA 3
`
`EPA DHA OMEGA 3
`
`347954846
`
`EPAX MARINE OMEGA-3
`
`A9
`
`“MARINE OMEGA-3 FORMULA”
`
`3,480,845
`
`OMEGA FARMS
`
`OMEGA FARMS
`
`3,283’I
`
`OMEGA
`
`“
`
`.‘
`
`,,
`
`,,
`
`OMEGA-3
`
`‘
`
`SMART BALANCE OMEGA
`
`“
`
`,,
`
`A4 5
`
`OMEGA BALANCE
`3,151,478
`
`
`
`
`
`
`
`
`

`
`
`
`
`
`
`
`
`
`DISCLAIMER
`
`
`
`“
`
`;.
`
`OMEGA 3 EGGS
`
`,,
`
`,,
`
`OMEGA 3 EGGS
`
`W054
`
`OMEGA BEEF
`
`
`
`
`
`Efifibit MARK/REGISTRATION N0.
`A16
`OMEGA NUTRITION
`2,962,682
`
`
`E‘§4E%‘X§‘ E?§i°é1?o?.%s‘¥é£’3L “PREMIUM CANOLA OIL WITH
`
`OMEGA 3, 6 & 9 CHOLESTEROL FREE
`
`CANOLA OIL PURE CANOLA
`
`
`
`’
`FREE 100% CANOLA OIL 1~2-3
`
`PURE CANOLA OIL
`
`3,911,696
`
`
`
`
`
`
`
`
`
`222%:sW
`M
`
`A27
`
`— EE
`
`A28
`
`
`
`OMEGA PLUS
`
`“
`
`,,
`
`OMEGA NUTRITION GARLIC-
`
`A31
`
`
`
`CHILI FLAX SEED OIL
`
`2,905,905
`
`OMEGA PROTEIN
`
`“NUTRITION GARLIC-CHILI FLAX
`
`SEED OIL”
`
`“PROTEIN”
`
`
`
`
`

`
`
`
`
`
`—_—
`
`
`
`
`
`OMEGA III1
`
`
`
`INT’L CLASS 030:
`
`
`
`
`
`
`MARK’REG‘STRA“°N N°-
`33§§3?3SL1MS
`
`“EPA DHA OMEGA 3” 2
`E1;‘33gI:*6‘ 0MEGA_
`
`
`
`Elgézggf OMEGA 3
`“EPADHA OMEGA 3”
`
`
`
`53‘333§15°MEGA3
`553533?
`
`
`
`
`
`
`
`33$3?°°AT
`
`OMEGA NUTRITION
`
`2,962,682
`
`3,562,824
`
`OMEGA NUTRITION
`
`“NUTRITION”
`
`2,139,963
`
`10
`
`11
`
`

`
`OMEGA
`"
`
`1,969,071
`
`
`
`OMEGA
`
`1,358,310
`
`INT’L CLASS 031:
`
`E’§';bi‘ MARK/REGISTRATION N0.
`C1
`OMEGA SEA
`4,093,104
`
`DISCLAIMER
`
`C2
`
`'
`
`OMEGA ONE
`4,093,054
`
`FIBREGIZED OMEGA
`
`,,
`
`,,
`
`.
`
`
`
`
`
`
`
`“O3 CHIA (SALVIA HISPANICA L.)
`PREMIUM RICH SOURCE OF OMEGA 3
`
`HIGH DIETARY FIBER HIGH PROTEIN
`
`
`
`LOW CARB PRODUCT OF MEXICO”
`
`and “NET WT. 10.6 OZ (300G)”
`
`O3 CHIA (SALVIA HISPANICA
`L.) PREMIUM RICH SOURCE OF
`OMEGA 3 HIGH DIETARY
`
`FIBER HIGH PROTEIN LOW
`
`CARB PRODUCT OF MEXICO
`AGROBECK INTERNATIONAL
`
`NET WT. 10.6 OZ (300G)
`4,030,688
`
`ALGAE TO OMEGA
`
`OMEGA 3 DRY THE OMEGA-3
`SOLUTION FOR DRY
`
`APPLICATION
`
`3,954,697
`
`OMEGA 3 DRY
`3,954,668
`
`~
`
`OMEGA MAX
`3,987,244
`
`OMEGA FIELDS
`3,157,683
`
`COOL OMEGA 40
`
`OMEGA MAINTENANCE
`3,268,034
`
`OMEGA NATURAL
`
`
`
`
`
`
`
`
`
`C8
`
`C9
`
`C1 1
`
`
`
`
`
`
`
`
`
`“
`
`,,
`
`“OMEGA 3 DRY” and “THE OMEGA-3
`SOLUTION FOR DRY APPLICATIO ”
`
`
`
`G,
`
`OMEGA 3 DRY
`
`,,
`
`,,
`
`,,
`
`
`
`9
`
`

`
`
`
`DISCLAIMER
`
`“
`
`G,
`
`OMEGA 3 DRY
`
`,,
`
`,,
`
`OMEGA
`
`“ A
`OMEGA
`
`,,
`
`“
`
`,,
`
`OMEGA
`
`
`
`“SKIN & COAT SYSTE ”
`
`
`
`“
`
`,,
`
`,,
`
`PROTEIN
`
`,,
`
`HEALTH
`
`“
`
`,,
`
`
`
`
`Exhibit
`P
`
`
`
`MARKIREGISTRATION NO.
`
`OMEGA 3 DRY
`358793113
`
`OMEGA NIBBLERS
`2,624,269
`
`OMEGA GRANDE
`2,555,809
`
`OMEGA HORSESHINE
`2,609,463
`
`OMEGA PRIDE
`2,664,456
`
`OMEGA PRIDE SKIN & COAT
`SYSTEM
`
`2,673,102
`
`OMEGA-PRO
`
`OMEGA PROTEIN
`2,796,615 1
`
`OMEGA HEALTH
`2,510,933
`
`OMEGA PET
`
`C13
`
`'Iz
`
`C14
`
`C15
`
`C16
`
`C1
`
`7
`
`C18
`
`C20
`
`C21
`
`C23
`
`
`
`“PORK PRODUCTS” and the “omega-3
`symbol”
`
`OMEGA-3 PORK PRODUCTS
`1,724,068
`
`TESS printouts of the above were attached as Exhibits A1-A37, B1-B13 and C1-C23 to
`
`App1icant’s Response filed October 1, 2012, which is part of the record of this appeal.
`
`The above third-party registrations show that the word “OMEGA" appearing in marks is not
`
`descriptive but suggestive, and that the PTO has acted accordingly.
`
`In each case, the mark was
`
`found to be registrable on the Principal Register.
`
`In the face of this evidence, it is difficult to
`
`reach any conclusion but that, as in these 73 registrations, the word “OMEGA” together with
`
`other words results in a mark is distinctive enough to qualify Applicants’ mark THE 3 OMEGAS
`
`for registration on the Principal Register.
`
`

`
`Further, those registrations for marks using the word “OMEGA” alone or in combination with
`
`other words as shown above, more than half of them in Int’l Classes 29 and 30 and more than
`
`two-thirds of them in Int’1 Class 31 did not require a disclaimer of the word “OMEGA” apart
`
`from the mark as shown.
`
`Lastly, Applicant notes that, in the final Office Action, the Examining Attorney comments on
`
`the content of Applicants’ website. Applicants again respectfully submit that the simple fact that
`
`the Examining Attorney needed to refer back to Applicants’ website for clarification of the mark
`
`is tacit confirmation that the Applicants’ Mark is not merely descriptive, but suggestive.
`
`4. The Attachments To The Final Office Action Are Replete With Information That Does
`
`Not Support The Basis For Rejection
`
`The final Office Action includes articles that are purported to show that Applicants’ Mark “is
`
`used descriptively in connection with_the goods/services.” Applicants respectfully disagree.
`
`It
`
`appears that, to a large extent, the number “3” or “three” _was searched with the word “omega.”
`
`The results are not supportive of the “merely descriptive” basis for rejection. For example,
`
`Applicants note the following:
`
`0 Attachment 1 uses the phrase “The three omegas,” with absolutely no context as to what
`
`“three” represents;
`
`0 Attachment 2 is a continuation of Attachment 1, with no reference to THE 3 OMEGAS;
`
`0 Attachment 3 is a continuation of Attachments 1 and 2, with no reference to THE 3
`
`OMEGAS;
`
`0 Attachment 4 is a continuation of Attachments 1, 2 and 3, with no reference to THE 3
`
`OMEGAS;‘
`
`0 Attachment 5 is from Applicants’ website which references Omega 3 and Omega 6 fatty
`
`acids, with no reference to THE 3 OMEGAS;
`
`4 This attachment does, however, allude to omega-3, omega-6 and omega 9 fatty acids.
`
`11
`
`

`
`0 Attachment 6 is a continuation of Attachment 5, with no reference to THE 3 OMEGAS;
`
`0 Attachment 7 uses the term “Omega-3,” with no reference to THE 3 OMEGAS;
`
`0 Attachment 8 references the term “omega-3,” “three experts and “three main forms [of
`
`omega-3],” with no reference to THE 3 OMEGAS;
`
`0 Attachment 9 is a continuation of Attachment 8, with no reference to THE 3 OMEGAS;
`
`0 Attachment 10 is a continuation of Attachments 8 and 9 and references “three grams,”
`
`with no reference to THE 3 OMEGAS;
`
`0 Attachment 11 references “Omegas,” “Omega—3s” and “three types of fats,” with no
`
`reference to THE 3 OMEGAS;
`
`0 Attachment 12 is a continuation of Attachment 11, with no reference to THE 3
`
`OMEGAS;
`
`0 Attachment 13 is a continuation of Attachments 11 and 12, with no reference to THE 3
`
`OMEGAS;
`
`0 Attachment 14 is a continuation of Attachments 1], 12 and 13, with no reference to THE
`
`3 OMEGAS;
`
`0 Attachment 15 is a continuation of Attachments 11 through 14, with no reference to THE
`
`3 OMEGAS;
`
`0 Attachment 16 is a continuation of Attachments 11 through 15, with no reference to THE
`
`3 OMEGAS; and
`
`I Attachment 17 is a continuation of Attachments 11 through 16, with no reference to THE
`
`3 OMEGAS.
`
`Conclusion
`
`For the reasons set forth above, Applicants submit that their THE 3 OMEGAS mark is not
`
`merely descriptive, but suggestive, and is entitled to registration.
`
`12
`
`

`
`The Board is therefore respectfully requested to reverse the Examining Attorney's decision
`
`refusing registration of Applicants’ Mark.
`
`Respectfully submitted,
`
`Agricultural Omega Solutions, LLC and
`Omega Valley Farmers, LLC
`By Their Attorneys
`
` Dated: June 21, 2013
`
`Josh S. Heino
`
`
`
`Patr k M. Bergin
`Dav s & Kuelthau, s.c.
`East Kilbourn Avenue, Suite 1400
`
`
`
`'
`
`ilwaukee, WI 53202
`'
`414.225.1452
`
`414.278.3652
`
`}'heino@dl<att0rneys.com
`pbergin@,dkattorneys.co1n
`
`N:\DOCS\83032'\000O5\l1526225
`
`

`
`
`
`Omega-7 Fatty Acids - The Essential Non-Essential Fatty
`Acids
`
`What is omega—7?
`
`Most of us have heard of ome-ga~3 essential fatty acids, and maybe o1nega—6
`
`essential fatty acids. There are also omega—9 fatty acids, which are not
`
`"essential," that is, you don't have to get them in your diet so you won't die,
`
`and there is yet another group of useful but non-essential fatty acids known as
`
`the omega—7's. Here are seven things you need to know about omega-7's and
`
`your health.
`
`1. Omega-7 fatty acids are a healthy form of trans- fat.
`
`Trans- fat gets a bad rap because some kinds of trans— fat increase
`
`cellular inflammation and irritate the linings of arteries. Omega—7 fatty
`
`acids like vaccenic {literally "cow") fatty acid found in dairy products is
`
`a trans— fat that helps your body overcome inflammation, if you don't
`
`eat too much of other fatty foods.
`
`2. Omega»? fatty acids are not found in non-fat foods.
`
`It may seem obvious, but you don't get your omega—7's in non—fat dairy
`
`products. Only dairy products made with whole milk or at least 2 per
`
`cent fat milk provide these fatty acids. Omega—7 fatty acids are in liquid
`
`milk, cheese, and yogurt.
`
`3. The omega-7 fatty acid in dairy products may actually lower
`
`cholesterol.
`
`Scientists at the University of Albert have found that feeding lab rats
`
`vaccenic acid for sixteen Weeks lowered total cholesterol, LDL
`
`cholesterol, and triglycerides. This is not, of course, the effect that you
`
`would expect by feeding yourself lots of cheese and butter.
`
`EXHIBIT D i
`
`

`
`4. The best vegetarian source of omega-7 fatty acids is sea buckthorn.
`
`"Sea buckthorn, despite its name, is not an ocean plant. The sea
`
`buckthorn is a plant that grows in high~salt conditions both along the
`
`ocean shoreline and in deserts, from western Europe to Mongolia. The
`
`berries are inedible unless they are "blotted," frozen to increase their
`
`sugar content, but they are a terrific source of vitamin C, containing 15
`
`times as much vitamin C as oranges. Sea buckthorn berries are also a
`
`rich source of omega—7 fatty acids used to make both nutritional
`
`supplements and skin care products.
`
`5. Macadamia nuts are also rich in omega—7 fatty acids.
`
`Macadamia nuts are rich in palmitoleic acid, an omega—7 fatty oil that
`
`provides the building blocks for the enzymes that control the burning of
`
`fat. Australian researchers have investigated palmitoleic acid as a
`
`treatment for obesity. Of course, you don't want just to eat lots of
`
`macadamia nuts to try to lose weight! Palmitoleic acid supplements are
`
`the appropriate weight loss tool.
`
`6. Too much omega—7 in the diet causes an unpleasant side effect.
`
`When omega»? fatty acids accumulate in the oily sebum that lubricates
`
`the skin, they are broken down into the chemical 2—noneal, which
`
`causes the phenomenon known as "old people smell." Frequent washing
`
`and specially formulated cosmetics eliminate the smell.
`
`‘7. You can get the benefits of omega-7's without the risk of old people
`
`smell by taking omega-7 supplements.
`
`Your body does not need omega—’7's to function. Certain, specific omegaf/‘s
`
`have desired health effects. Taking omega—7 supplements gives you the health
`
`benefits without causing accumulation of o1nega—'7's in your skin.
`
`And no matter what your age, ornega—7 supplements can provide essential
`
`health benefits, especially in weight loss and cholesterol control. Omega-7's in
`
`

`
`supplement form can be the non—essential fatty acid that is essential to your
`health.
`
`Selected References:
`
`0 Power, G.W., Cake, M.l-I. 8:. Newsholme EA. [1997} The influence of diet on the activity of
`
`camitine palrnitoyltransferase 1 toward a range of acyl COA esters. Lipids 32: 3.1w37 .
`
`Omega-zz Side Effects
`
`Does omega»? have any side effects?
`
`Omega—z Benefits
`
`What are the health benefits of Omega—'7?
`
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`Related Articles
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`o Omega—'7 Side Effect - The Problems You Can Encounter from Taking
`Too Much of the Wrong Omega—'7 Side Effects
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`0 Omega-7 Benefit
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`-~ Omega—7 Benefits — Could Consuming Fat Actually
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`
`Effects of Fatty Acids on Reproduction in the Dairy Cow:
`'
`The Good and the Bad
`
`Helene V. Petit, Ph. D.
`_
`Dairy and Swine Research and Development Centre
`Agriculture and Agri—Food Canada
`P. O. Box 90, Lennoxville, QC JIM 1Z3
`Canada
`
`Introduction
`
`Recently, there has been a great deal of interest in feeding fat to dairy cows in
`order to increase energy density of the diet and improve reproduction. It is known that
`cows fed supplemental fat may experience improved energy balance and begin to cycle
`sooner because of enhanced follicular growth and development (Grummer and Carroll,
`1991). However, Lucy et al. (1992) suggested that it was fatty acids, and not the
`additional energy provided by the fatty acids, that stimulated ovarian fimction. Recently,
`new information has been published that demonstrates that the type of dietary fatty acids
`is important as individual fatty acids do not have the same effects on reproduction of the
`dairy cow.
`
`Fatty Acid Terminology
`
`A fatty acid molecule is shaped like a caterpillar with two different ends: a methyl
`group and a water-soluble end that is the carboxyl end." There ‘are '_different"_familieS—of
`"fatty acids in feed: _o_r'ne'ga-3, omega-6, omega-7, and oinega-.9.'_-The most common
`numbering system is called the omega system. This system numbers carbon atoms in
`sequence, starting from the methyl end. The other commonly used system, called the
`delta (d) system, starts at the acid end and numbers the carbon atoms in reverse direction.
`
`The omega-7 family of fatty acids is synthesized fi'om palmitic acid (C16:O) while
`the omega-9 fatty acid family is synthesized fi'om stearic acid (C1820) via oleic acid
`(C18: 1, Figure 1). These two families are not considered essential as they are produced in
`the body.
`
`The omega-3 and omega-6 fatty acids are essential because both are vital to
`health but cannot be made by our cells and must, therefore, be provided by foods.
`
`Linoleic acid (Cl 8:2) belongs to the omega-6 family while linolenic acid (C183)
`belongs to the omega-3 family (Figure 2). The system used to name fatty acids considers
`the number of carbons in the chain (e.g. 18 for linoleic acid), the number of double bonds
`in the chain (2 for linoleic acid) and where in the chain the first double bond is located
`from the methyl end (lst double bond between carbons 6 and 7 for linoleic acid): C18:2.
`
`EXHIBIT E
`
`

`
`Figure 1. Schematic pathway of omega-7 and omega-9 fatty acid synthesis.
`
`Ci-4:0
`
`C18:1
`
`I
`Palmitic Acid abr-
`C1620
`I
`Stearic Acid —I> Oleic Acid —>Omcga9
`C18:0
`
`Figure 2. Schematic pathway of omega-6 and omega—3 fatty acid synthesis.
`
`0mega—6 fatty acids
`
`Omega.-3 fatty acids
`
`C18:2n6 Linoleic acid
`
`Cl8:3n3 u~LinoIaic acid
`
`¢ -ta A6 Desaturase an- ‘
`
`Cl8:3n6 'y=~I;.inolenic acid
`
`C18:4n3 Stearidonic acid
`
`‘ «T Elongase an- *
`
`C20:3n6 Dihomo-7-Linolenic acid
`
`C20:4n3 Eioosateuaenoic acid
`
`J, «T A5 Desaturase ——e- {,
`C20:4n6 Arachidnnic amid
`'
`' C20:5n3 Eicosapentaenoic acid
`
`

`
`‘Sources of Fatty Acids
`
`The main sources of short chain fatty acids are cottonseed and palm oils. All
`sources of fat contain long chain fatty acids. The main sources of linolenic acid
`(C18:3n3) are flaxseed, hemp, canola, soybean, nuts and dark green forages. Ryegrass
`silage contains as much as 60% of Iinolenic acid as a percentage of total fatty acids
`(Dewhurst and King, 1998), which would encourage high forage systems to increase
`dietary linolenic acid content. Omega—3 fatty acids are found also in cold water and salt
`water fish (salmon,
`trout, mackerel, sardines). The main sources of Iinoleic acid
`(C18:2n6) are sunflower seed, safflower, hemp, soybean, nuts, pumpkin seeds, sesame
`seeds and flaxseed. Gamma-linolenic acid (Cl8:3n6) is found in evening prirnose oil,
`grape seeds and borage. Dihomogamma-linolenic acid (C20:3n6) is found in maternal
`milk while arachidonic acid (C20:-4n6) occurs mainly in meat and animal products. Oleic
`acid (C1821) is found in olive, almond, avocado, peanut, pecan, cashew, macadamia nut
`and butter. Omega 7 in the form of palrnitoleic acid (C16:l) is found in tropical oils
`(coconut, palm). Composition in C18 fatty acids of some edible vegetable oils is
`reported in Table 1.
`
`Adapted from Erasmus (1993).
`
`Fatty Acids and Fertility
`
`Supplementary fats are likely to affect fertility because fatty acids are the
`precursors both of prostaglandins (PG) and, via cholesterol, the steroid hormones. In
`general, feeding supplemental fat such as calcium soaps of long chain fatty acids, fish
`meal, and tallow increases conception rates. However, a lowered conception rate at first
`service has been reported when there was a paralleled increase in milk production (range
`
`

`
`of 2.2 to 4.5 kg/d). Thatcher and Staples (2000) wrote an excellent review on the subject.
`There are two main families of essential fatty acids, omega-3 and omega-6 fatty acids,
`that could affect fertility. The main source of omega-6 fatty acids is dietary linoleic acid
`(Cl8:2n-6) and this is converted to arachidonic acid (C20:4n-6), which inter alia is the
`precursor of the dienoic (2-series) PG, such as PGF;;_.,. The same elongase and desaturase
`enzymes also convert the main dietary omega-3 fatty acids (oi-linolenic acid; C18:3n-3)
`-to eicosapentaenoie acid (EPA; C20:5n-3), the precursor of the trienoic (3-series) PG,
`such as PGF3.;, (Abayasekara and Wathes, 1999). Competition between omega-3 and
`omega-6 precursors for desaturation and elongation as well as at the site of PG synthetase
`means that increasing the Supply of omega-3 fatty acids will decrease production of
`dienoic PG (Barnouin and Chassagne, 1991). In many cases the trienoic PG have lower
`biological activity than the corresponding dienoic PG (Fly and Johnston, 1990) and this
`may directly affect aspects of fertility. For example, treatments that reduce ovarian and
`endometrial synthesis of PGF2a, at the expense of PGF3.,, may contribute to a reduction
`in embryonic mortality (Mattos er al., 2000). There is some evidence for different effects
`of oi-linolenic acid and the omega-3 fatty acids from fish oil (EPA and docosahexaenoic
`acid (DHA), C22:6n-3) on eicosanoid (interleukin) synthesis, perhaps because of
`differences in the way in which these fatty acids incorporate into cell membranes (Wu et
`al., 1996).
`
`Supplementary fats can also reduce the total synthesis of PG by affecting the
`activity of PG synthase (Thatcher et al., 1995). Diets rich in linoleic acid (C18:2)
`increase arachidonic acid concentration (C20:4) in tissues and diets rich in linolenic acid
`(C18:3) increase concentration of eicosapentaenoic acid (C20:5) (Béréziat, 1978).
`Moreover, eicosapentaenoic acid (C20:5) is a competitive inhibitor of the enzyme
`complex involved in the synthesis of prostaglandins from arachidonic acid (C20:4) (Leat
`and Northrop, 1979; Holman, 1986). Therefore, this would suggest that a diet with a low
`lirioleic to linolenic acid ratio (Cl8:2:C18:3, omega-6:omega-3) could decrease
`prostaglandin secretion or prostagiandin activity as suggested by Barnouin and
`Chassagne (1991), which would thus have important effects on reproduction and
`immunity in the dairy cow.
`
`Prostagladins Synthesis
`
`There are two main pathways (Figure 3) used to synthesize PG: one is used by
`most dietary fat (e.g. corn and soybean, sources of omega-6 fatty acids) and leads to
`series 1 and 2 PG while the other one is more specific to fish products and flax (sources
`of omega-3 fatty acids) and leads to series 3 PG. Thus, depending on the pathway used
`for PG synthesis, the type and role of the resulting PG will differ. PG of series 2 are
`"important at calving; they increase platelet agglutination and blood clot formation, they
`increase salt retention in kidneys, water retention, and blood pressure. PG of series 2 aiso
`cause inflammation, which leads to their role of “bad guys” among the different PG
`SBHCS.
`
`

`
`Figure 3. Metabolic pathway of series 1,2 and 3 prostaglandins.
`
`a ega—6 may adds
`
`
`o.i.ega;s ratiy ids
`
`
`
`C18:2n6 Lincleic acid
`
`C18:3r13 or-Linoieic acid
`
`C18:3n6 'g~Lino1cnic acid
`
`CI8:4n3 Stearidonic acid
`
`C20:3n6 Diliomo-ye-Linclenic acid
`# C Series 1
`Proshghmdim
`C20:4n6Aracl1idcnic acid
`cyclooxygenase If
`C
`pmgtaglandins H,
`Parrrsnaarm
`
`Saw: 2
`
`C20:4n3 Eiccsatetracncic acid
`V‘
`C20:5n3 Eicosapentacnoic acid
`
`C /‘Zn:-ostaglandhi synthasc
`
`Series 3
`
`improve the immune sytem of T cells, prevent platelet
`1
`PG of series
`agglutination and heart attack, contribute to remove the excess of Na and water in
`kidneys, decrease the inflarnrnatory responseand contribute in controling arthritis and
`decreasing cholesterol production. PG of the series" 3 have a very weak platelet
`agglutination power and they prevent fabrication of PG of the series 2; they also prevent
`heart attack, water retention, and inflammation. PG of the series 1 and 3 are thus
`considered as “good guys” contrary to those of the series 2. In fact, our preliminary
`results (Gagnon er al., 2000) showed that some immune parameters were affected by the
`type of dietary fatty acids at the time of embryo implantation.
`Some polyunsaturated fatty acids (PUFA) can serve as a substrate for the
`synthesis of PGFM. These include cis-linoleic acid (Cl8:2) that is commonly found in
`natural fat sources. It can be desaturated and elongated to form arachidonic acid which
`serves as an immediate percursor for the series 2 PG of which PGF20, is a key member.
`Key regulatory enzymes
`for
`these conversions
`include A six desaturase and
`cyclooxygenase. These same fatty acids also can inhibit PG synthesis by competitive
`inhibition with these key enzymes. Linoleic acid has been shown to be an inhibitor of PG
`synthesis that is produced by the endometrium in response to the presence of a conceptus
`in order to perserve the integrity of the conceptus (Thatcher et al., 1994). Other fatty
`acids besides linoleic acid can play inhibitory roles. EPA and docosahexanoic acid
`(C22:6) have been shown to inhibit cyclooxygenase activity, which is an enzyme
`involved in the synthesis of PGF2o,+.
`
`Fatty Acids, Cholesterol, and Progesterone
`Cholesterol serves as a precursor for the synthesis of progesterone by ovarian
`luteal cells.
`Secretion of prog