From: Delaney, Zhaleh
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`Sent: 1/19/2018 8:38:38 PM
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`To: TTAB EFiling
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`CC:
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`Subject: U.S. TRADEMARK APPLICATION NO. 87006211 - COMPOSITE CUBES - RSGTM110US -
`EXAMINER BRIEF
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`*************************************************
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`Attachment Information:
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`Count: 1
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`Files: 87006211.doc
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`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
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`U.S. APPLICATION SERIAL NO. 87006211
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`MARK: COMPOSITE CUBES
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`*87006211*
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`CORRESPONDENT ADDRESS:
` ABIGAIL R ZELLER
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`GENERAL TRADEMARK INFORMATION:
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` GROSSMAN TUCKER PERREAULT & PFLEGER PLLC
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`http://www.uspto.gov/trademarks/index.jsp
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` 55 S COMMERCIAL STREET
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` MANCHESTER, NH 03101
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`TTAB INFORMATION:
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`http://www.uspto.gov/trademarks/process/appeal/index.js
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`APPLICANT: EARTH ANIMAL VENTURES LLC
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`CORRESPONDENT’S REFERENCE/DOCKET NO:
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` RSGTM110US
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`CORRESPONDENT E-MAIL ADDRESS:
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` jhobbs@gtpp.com
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`EXAMINING ATTORNEY’S APPEAL BRIEF
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`The Applicant has appealed the Examining Attorney’s final refusal to register the proposed mark
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`COMPOSITE CUBES in standard character form under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
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`§1052(e)(1). Registration of the applied-for mark was refused on the Principal Register because it is
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`merely descriptive of a feature of Applicant’s goods. It is respectfully requested that this refusal be
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`affirmed.
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` STATEMENT OF FACTS
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`On April 19, 2016, the Applicant, Earth Animal Ventures LLC, filed an application to register the
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`proposed mark, COMPOSITE CUBES, in standard character form on the Principal Register for nutritional
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`supplements for animals.
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`On August 5, 2016, registration of the proposed mark, COMPOSITE CUBES, was refused under
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`Section 2(e)(1) of the Trademark Act on the basis of it being merely descriptive. A request for
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`information regarding the goods was made. Specifically, the Examining Attorney inquired whether the
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`Applicant’s supplements are in the nature of a “composite”, or a combination of multiple elements or
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`ingredients, and whether they are in cube form. A requirement for an acceptable identification of goods
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`was also made. The initial refusal included dictionary definitions of the terms COMPOSITE and CUBE,
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`Internet evidence referring to “composite supplements” in trade, and an Internet excerpt specifically
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`referring to an alfalfa and hay “composite cube” supplement for animals offered in trade.
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`On February 6, 2017, the Applicant filed a response to the initial refusal arguing that the
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`proposed mark, COMPOSITE CUBES, is suggestive in that the term COMPOSITE has a variety of
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`meanings, although the goods “have some attributes of a cube shape.” The Applicant also amended the
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`goods to “nutritional supplements for pets.” In response to the Examining Attorney’s request for
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`information, the Applicant stated that “its goods consist of nutritional supplements that can be made of
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`protein, food-derived vitamins, sprouted seeds and minerals.”
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`On February 13, 2017, registration of the proposed mark, COMPOSITE CUBES, was finally
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`refused on the Principal Register under Section 2(e)(1) of the Trademark Act because it merely describes
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`a feature of Applicant’s cube-shaped supplements that are a composite of multiple elements or
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`ingredients. The final refusal was based upon further Internet evidence showing the existence of
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`composite supplements in trade, Automated X-Search System evidence showing the Office’s position
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`that the term COMPOSITE is merely descriptive in relation to nutritional supplements, and Internet
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`evidence from the Applicant’s own website calling the consumer’s attention to the cube shape of the
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`Applicant’s supplements. The amended identification of goods submitted was accepted, and the
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`information regarding the goods submitted was acknowledged.
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`On August 14, 2017, Applicant instituted this ex parte appeal and simultaneously filed a Request
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`for Reconsideration. Jurisdiction was restored to the Examining Attorney for consideration of the
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`Applicant’s Request for Reconsideration.
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`On September 5, 2017, the Applicant’s Request for Reconsideration was denied. The denial of
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`the Request for Reconsideration included Automated X-Search System evidence showing the Office’s
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`position that the term CUBES is merely descriptive in relation to nutritional supplements, Internet
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`evidence showing the existence of animal supplements in cube form in trade, evidence consisting of
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`Applicant’s own website advertisement describing the identified supplements as featuring multiple
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`ingredients formed into “dense cubes”, and additional Internet evidence regarding the Applicant’s
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`supplements referring to them as “compacted into a small cube resembling a crouton.”
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`On November 13, 2017, Applicant filed its brief herein.
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`On November 20, 2017, jurisdiction was restored to the Examining Attorney for the filing of her
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`brief herein.
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`ISSUE
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`Is the proposed mark COMPOSITE CUBES merely descriptive of Applicant’s
`composite, or multi-element, nutritional supplements for pets?
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` ARGUMENT
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` mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature,
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`purpose, or use of an applicant’s goods. TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d 872,
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`874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173,
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`71 USPQ2d 1370, 1371 (Fed. Cir. 2004)).
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`I.
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` COMPOSITE CUBES is merely descriptive of Applicant’s composite, or
`multi-element, nutritional supplements for pets.
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`The Applicant’s goods are composite supplements for pets, or pet supplements
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`composed of a blend of multiple elements or ingredients, in the form of cubes. The very definition of
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`the term COMPOSITE is something “made up of various parts or elements.” See the definition of
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`COMPOSITE attached to Examining Attorney’s Initial refusal dated August 5, 2016, at TICRS pages 2-3.
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`Moreover, the Internet excerpt from Applicant’s website of record indeed indicates that Applicant’s
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`supplements are composed of multiple elements or ingredients. Specifically, that they are “a special
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`blend of Vital Nutrients & Minerals…“(m)ade of protein, food-derived vitamins, sprouted seeds and
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`minerals.” See Internet excerpt from Applicant’s website at earthanimal.com attached to the Examining
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`Attorney’s Denial of Request for Reconsideration dated September 5, 2017, TICRS page 51. See also the
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`Internet excerpt from petfoodindustry.com attached to the Examining Attorney’s Denial of Request for
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`Reconsideration dated September 5, 2017, at TICRS page 47 indicating that the Applicant’s goods are “a
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`proprietary component consisting of protein, sprouted seeds, fruit and vegetable extracts, plus vitamins
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`and minerals.” Accordingly, the Applicant’s goods are in the nature of a “composite”, or composite
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`supplements. In that the proposed mark, COMPOSITE CUBES, immediately conveys significant attributes
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`about the Applicant’s supplements to the consumer, i.e. that they are of a “composite” nature, or
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`composed of more than one element or ingredient, and are in the form of cubes, the proposed mark is
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`merely descriptive. See Stoncor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 1332, 111 USPQ2d
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`1649, 1652 (Fed. Cir. 2014) (citing DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247,
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`1251-52, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012)); TMEP §1209.01(a).
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`The Internet evidence of record shows the existence of composite supplements in
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`trade, and therefore, the merely descriptive nature of the term COMPOSITE in the supplement industry.
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`See summary of this evidence below in this regard:
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`1). Internet excerpt from shop.truefitness.com stating “Glutamine is included in many composite
`supplements..” [Attached to the Examining Attorney’s Initial Office Action dated August 5, 2016, TICRS
`page 10.]
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`3). Internet excerpt from serrapeptaseonline.com referring to a “Composite Serrapeptase Supplement”,
`and stating that: “This Serrapeptase Composite supplement has been carefully crafted to include
`Serrapeptase, Nattokinassp, proanthocyanidins and much more...” [Attached to the Examining
`Attorney’s Initial Office Action dated August 5, 2016, TICRS pages 11-12.]
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`4). Internet excerpt from mynaturalhealthmarketplace.com stating that: “The antioxidants contained
`within this composite supplement, which also includes vitamins B6, C and E, act in a mutually supportive
`manner to protect tissues from damaging free radicals.” [Attached to the Examining Attorney’s Initial
`Office Action dated August 5, 2016, TICRS page 14.]
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`5). Internet excerpt from worldofinternetcafes.de stating: “Multi Vitamin & Mineral Tables are a
`composite supplement containing antioxidants multivitamins and minerals.” [Attached to the Examining
`Attorney’s Initial Office Action dated August 5, 2016, TICRS page 18.]
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` 6). Internet excerpt from serrapeptaseonline.com referring to a Blockbuster AllClear “Composite
`Serrapeptase Supplement.” [Attached to the Examining Attorney’s Final Office Action dated February
`13, 2017, TICRS pages 15-16.]
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`7). Internet excerpt from nutrientcor.com referring to a Joint Advantage Gold supplement “featuring 14
`unique ingredients”, stating that it “is a composite supplement formula put together by Mountain Home
`Nutritionals. It contains seven major groups of ingredients. Although many of the ingredients could be
`obtained separately, they would be much more expensive than this single joint supplement.” [Attached
`to the Examining Attorney’s Final Office Action dated February 13, 2017, TICRS pages 19-20.]
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`8). Internet excerpt from mossopnaturalremedies.com referring to a Bio-Multi Woman “composite
`nutritional supplement containing 16 vitamins and minerals, specially formulated for women of all ages”
`and Bio-Multi Vitamin and Mineral supplement that “is a composite nutritional supplement containing a
`range of 18 antioxidant vitamins and minerals, together with other relevant micronutrients giving the
`perfect everyday support for good health.” [Attached to the Examining Attorney’s Final Office Action
`dated February 13, 2017, TICRS pages 21-22.]
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`9). Internet excerpt from nutraingredients-use.com referring to the “(a)nalgesic and anti-inflammatory
`effects of UP1304, a botanical composite containing standardized extracts of Curcuma ionga and Morus
`alba”, and stating that: “An independent study conducted by botanical supplements manufacturer
`Unigen found that pain and inflammation in rats with paw edema were alleviated with a turmeric and
`mulberry composite supplement…(t)he composite UP1304 is made out of ethanol extracts of Curcuma
`Ionga (turmeric) root and Morus alba (white mulberry) root bark, one of Unigen’s proprietary
`combinations patented as Romatol.” [Attached to the Examining Attorney’s Final Office Action dated
`February 13, 2017, TICRS pages 23 & 25.] (Emphasis added.)
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`The above evidence clearly establishes that the term COMPOSITE is a term of art in the supplement
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`industry referring to multi-element supplements, or supplements composed of multiple elements or
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`ingredients. The evidence of record also clearly establishes that the Applicant’s supplements are indeed
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`composed of a blend of multiple elements or ingredients, such as protein, vitamins, minerals, sprouted
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`seeds and fruit and vegetable extracts, and, therefore, are “composite” in nature, or composite
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`supplements.
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`Furthermore, the Applicant has stated that its nutritional supplements “have some
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`attributes of a cube shape.” See Applicant’s Response to the Initial Office Action dated February 6, 2017
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`at TICRS page 3, paragraph 4. See also the definition of CUBE of record: “(a) symmetrical three-
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`dimensional shape, either solid or hollow, contained by six equal squares”, “(a) block of something with
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`six sides”, such as “a sugar cube”, or “(c)ut (food) into small cubes”, attached to Examining Attorney’s
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`Initial refusal dated August 5, 2016, at TICRS pages 4-5. In fact, the Applicant specifically informs the
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`consumer that its supplements are in a cube shape. See the Internet excerpt from Applicant’s website
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`of record referring to Applicant’s supplements wherein Applicant informs the consumer that “(t)hese
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`dense cubes are specially added to make Wisdom truly complete and balanced.” See Internet excerpt
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`from Applicant’s earthanimal.com website attached to the Examining Attorney’s Denial of Request for
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`Reconsideration dated September 5, 2017, TICRS page 51. (Emphasis added). See also the additional
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`Internet excerpt from Applicant’s website attached to the Examining Attorney’s Final Office Action
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`clearly indicating that the Applicant’s supplements are cube-shaped. See Internet excerpt from
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`Applicant’s website attached to the Examining Attorney’s Final Office Action dated February 13, 2017,
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`TICRS page 2. In fact, the Applicant’s website advertisement specifically calls the consumers attention
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`(with an arrow) to the cube shape of its supplements. Id. Moreover, the Internet excerpt from
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`petfoodindustry.com of record referring to Applicant’s supplements specifically states: “Bob Goldstein,
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`is introducing a full air-dried pet food line, Wisdom. Offering two formulas for dogs now – chicken and
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`turkey, with other proteins plus a cat food to come soon, Goldstein said – the food is 70 percent dried
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`meat, 20 percent Composite Cubes (a proprietary component consisting of protein, sprouted seeds,
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`fruit and vegetable extracts, plus vitamins and minerals, all air dried and compacted into a small cube
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`resembling a crouton), and 10 percent whole-dried fruits and vegetables.” See the Internet excerpt
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`from petfoodindustry.com attached to the Examining Attorney’s Denial of Request for Reconsideration
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`dated September 5, 2017, TICRS page 47. Therefore, the term CUBES is also merely descriptive in
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`relation to the goods identified. The addition of the merely descriptive term CUBES to the merely
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`descriptive term COMPOSITE does not alter a finding of mere descriptiveness in this instance in that the
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`term CUBES merely describes the shape of Applicant’s goods. A term that describes the shape or form
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`of a product is merely descriptive. In re Metcal Inc., 1 USPQ2d 1334 (TTAB 1986) (holding SOLDER STRAP
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`merely descriptive of self regulating heaters in the form of flexible bands or straps); In re H.U.D.D.L.E.,
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`216 USPQ 358 (TTAB 1982) (holding TOOBS merely descriptive of bathroom and kitchen fixtures in the
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`shape of tubes).
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`Moreover, the Internet evidence of record establishes consumer familiarity with
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`supplements in cube form, including animal supplements, as well as animal feeds in cube form. See the
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`summary of this evidence below in this regard:
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`1). Internet excerpt from biostarus.com referring to a multivitamin for dogs, Optimum K9, “(a)vailable in
`60 Cubes, 120 Cubes, or Powder.” [Attached to the Examining Attorney’s Denial of Request for
`Reconsideration dated September 5, 2017, TICRS page 25.]
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`2). Internet excerpt from admaninalsnutrition.com referring to “Beef Cubes” cattle feed supplement.
`[Attached to the Examining Attorney’s Denial of Request for Reconsideration dated September 5, 2017,
`TICRS page 28.]
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`3). Internet excerpt from facebook.com regarding a recipe for “Frozen Supplement Cubes” for dogs.
`[Attached to the Examining Attorney’s Denial of Request for Reconsideration dated September 5, 2017,
`TICRS page 29.]
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`4). Internet excerpt from bigtexfeed.com referring to Big Tex Feed “Alfalfa Cubes” for livestock
`composed of alfalfa hay that is “dehydrated into a cube for convenience.” [Attached to the Examining
`Attorney’s Denial of Request for Reconsideration dated September 5, 2017, TICRS page 6.]
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`5). Internet excerpt from statewideservicecenter.com referring to Manzanola alfalfa cubes for livestock.
`[Attached to the Examining Attorney’s Denial of Request for Reconsideration dated September 5, 2017,
`TICRS page 8.]
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`6). Internet excerpt from pet.kiwi referring to “carrot cubes”, a gnawing stone for rabbits and small
`rodents. [Attached to the Examining Attorney’s Denial of Request for Reconsideration dated September
`5, 2017, TICRS pages 12-15.]
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`7). Internet excerpt from petsupermarket.com regarding Kaytee Timothy Hay Cubes for rabbits.
`[Attached to the Examining Attorney’s Denial of Request for Reconsideration dated September 5, 2017,
`TICRS pages 17-18.] See also the Internet excerpt from fmbrown.com also referring to this product
`stating: “(t)hese cubes are natural, daily nutritional supplements made from filler-free Western-cut
`timothy hay, a daily dietary requirement for small herbivores.” [Attached to the Examining Attorney’s
`Denial of Request for Reconsideration dated September 5, 2017, TICRS page 20.]
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`8). Internet excerpt from nutraskyelabs.com regarding a supplement manufacturer stating: “Ask us
`about our Custom Coffee and/or Supplement Cubes...” [Attached to the Examining Attorney’s Denial of
`Request for Reconsideration dated September 5, 2017, TICRS page 32.]
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`The Internet evidence of record even specifically shows the existence of composite supplements in the
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`form of cubes in trade. See the Internet excerpt from herefordtalk.com in this regard attached to the
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`Examining Attorney’s Initial Office Action dated August 5, 2016, at TICRS page 9 referring to a cattle
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`breeder feeding “alfalfa ‘composite’ cubes” to his bulls. Clearly, the meaning of the term CUBES will not
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`be lost on the consumer of Applicant’s pet supplements in the form of cubes.
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`Furthermore, the Automated X-Search System evidence of record shows the Office’s
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`position that the terms COMPOSITE and CUBE are each merely descriptive in relation to nutritional
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`supplements. See the summary of this evidence below in this regard:
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`1). U.S. Registration Number 3728368 for HPP 2407 COMPOSITE-BAR in stylized form for supplements
`in bar form featuring a disclaimer of the wording COMPOSITE-BAR. [Attached to the Examining
`Attorney’s Final Office Action dated February 13, 2017, TICRS pages 6-8.]
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`2). U.S. Registration Number 4381421 for INTEGRATED NUTRITIONAL COMPOSITES in standard
`character form for dietary and nutritional supplements registered only on the Supplemental Register.
`[Attached to the Examining Attorney’s Final Office Action dated February 13, 2017, TICRS pages 9-11.]
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`3). U.S. Registration Number 4389830 for MULTI RELEASE NUTRITIONAL COMPOSITES in standard
`character form for dietary and nutritional supplements registered only on the Supplemental Register.
`[Attached to the Examining Attorney’s Final Office Action dated February 13, 2017, TICRS pages 12-14.]
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`4). U.S. Registration Number 4990304 for GO CUBES in standard character form for dietary and
`nutritional supplements featuring a disclaimer of CUBES. [Attached to the Examining Attorney’s Denial
`of Request for Reconsideration dated September 5, 2017, TICRS pages 33-35.]
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`5). U.S. Registration Number 4570106 for COOKIE CUBES in standard character form for animal feed
`supplements registered only on the Supplemental Register. [Attached to the Examining Attorney’s
`Denial of Request for Reconsideration dated September 5, 2017, TICRS pages 36-38.]
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`6). U.S. Registration Number 4676864 for the mark KIDS CUBES in standard character form for dietary
`and nutritional supplements registered only on the Supplemental Register. [Attached to the Examining
`Attorney’s Denial of Request for Reconsideration dated September 5, 2017, TICRS pages 39-40.]
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`7). U.S. Registration Number 5046122 for the mark ZAP CUBEZ in standard character form for dietary
`and nutritional supplements featuring a disclaimer of CUBES. [Attached to the Examining Attorney’s
`Denial of Request for Reconsideration dated September 5, 2017, TICRS pages 41-42.]
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`8). U.S. Registration Number 4953265 for the mark ADULT CUBES in standard character form for dietary
`and nutritional supplements registered only on the Supplemental Register featuring a disclaimer of
`ADULT. [Attached to the Examining Attorney’s Denial of Request for Reconsideration dated September
`5, 2017, TICRS pages 43-45.]
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`If the individually merely descriptive components of a mark retain their merely
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`descriptive meaning when combined, the combination results in a composite mark that is itself
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`descriptive. See, e.g., In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002) (holding
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`SMARTTOWER merely descriptive of “commercial and industrial cooling towers and accessories
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`therefor, sold as a unit”); In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1341 (TTAB 2009) (holding
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`BATTLECAM merely descriptive of computer game software with a feature that involve battles and
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`provides the player with the option to utilize various views of the battlefield); TMEP §1209.03(d). Only
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`where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or
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`otherwise nondescriptive meaning in relation to the goods is the combined mark registrable. See In re
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`Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108
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`USPQ2d 1161, 1162-63 (TTAB 2013). In this case, both the individual components, COMPOSITE and
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`CUBES, and the composite result, COMPOSITE CUBES, are merely descriptive of Applicant’s composite
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`supplements in cube form, and do not create a unique, incongruous, or nondescriptive meaning in
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`relation thereto. The determination of whether a mark is merely descriptive is always made in relation
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`to an applicant’s goods, not in the abstract. TMEP §1209.01(b); see, e.g., In re Polo Int’l Inc., 51 USPQ2d
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`1061, 1062-63 (TTAB 1999) (finding DOC in DOC-CONTROL would refer to the “documents” managed by
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`applicant’s software rather than the term “doctor” shown in a dictionary definition); In re Digital
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`Research Inc., 4 USPQ2d 1242, 1243-44 (TTAB 1987) (finding CONCURRENT PC-DOS and CONCURRENT
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`DOS merely descriptive of “computer programs recorded on disk” where the relevant trade used the
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`denomination “concurrent” as a descriptor of a particular type of operating system). Specifically, the
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`proposed mark is a combination of merely descriptive terms which, itself, is merely descriptive. Even in
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`its Appeal Brief, the Applicant states that the proposed mark, COMPOSITE CUBES, “does not inform the
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`consumer as to what the cube is made of, other than it may be a cube that contains different
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`elements.” See Applicant’s Appeal Brief at page 2, paragraph 1. That is, even the Applicant
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`acknowledges that the proposed mark informs the consumer that the Applicant’s supplements are
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`composite in nature, or composed of different or multiple elements or ingredients, and are in a cube
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`shape. In summary, in that the Applicant’s supplements are composite supplements, or supplements
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`composed of multiple elements or ingredients, in the shape of cubes, the combination, COMPOSITE
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`CUBES, is merely descriptive in relation to the goods identified.
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`Finally, the fact that the Applicant may be the first or only user of the merely
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`descriptive combination, COMPOSITE CUBES, for composite supplements for pets in cube form does not
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`necessarily render this wording incongruous or distinctive; as in this case, the evidence shows that this
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`combination is merely descriptive. See In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1514 (TTAB
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`2016); TMEP §1209.03(c).
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`II.
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`Applicant’s arguments in opposition to the merely descriptive refusal
`are unpersuasive.
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`The Applicant argues that the Examining Attorney’s determination of mere
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`descriptiveness relies too heavily on Applicant’s own website advertisement describing the nature of the
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`goods identified. See Applicant’s Appeal Brief at page 8, paragraph 2, and at page 9, paragraph 1.
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`Specifically, the Applicant argues that its “introductory advertisement” of record from its website
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`indicating that the identified supplements are composed of multiple elements (“a special blend of Vital
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`Nutrients & Minerals…(m)ade of protein, food-derived vitamins, sprouted seeds and minerals”), and are
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`in the shape of “dense cubes”, (see Internet excerpt from Applicant’s website at earthanimal.com
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`attached to the Examining Attorney’s Denial of Request for Reconsideration dated September 5, 2017,
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`TICRS page 51), “should not be considered definitive or dispositive evidence that that mark COMPOSITE
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`CUBES is, on its face, a descriptive mark.” See Applicant’s Appeal Brief at page 8, paragraph 1. In this
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`regard, the Applicant argues that its website advertisement is not “proof” that consumers would
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`understand that the term COMPOSITE refers to the composite, or multiple element, nature of the
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`Applicant’s supplements, or that they would understand that the term CUBES refers “a block of
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`something with six sides”, i.e. that “the (multiple) ingredients (of Applicant’s supplements) were
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`compacted into a ‘small cube resembling a crouton.” See Applicant’s Appeal Brief at page 8, paragraph
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`2, and at page 9, paragraph 1. In fact, Applicant contends that its statement in its advertisement that
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`the identified goods are a “proprietary blend of ingredients” refutes the Examining Attorney’s
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`determination of mere descriptiveness, and that the term COMPOSITE is not merely descriptive because
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`it does not describe any of the actual elements of its supplements, such as “their chemical composition
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`or formulae, their concentration, their nutritional effect, their digestive compatibility...” See Applicant’s
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`Response to the Initial Refusal dated February 6, 2017, at TICRS page 3, paragraph 4. That is, in that the
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`term COMPOSITE does not describe the specific contents of the Applicant’s supplements, a degree of
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`imagination is required on the part of the consumer to understand the nature of the goods from the
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`mark rendering it suggestive rather than merely descriptive. Contrary to what the Applicant contends,
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`“(a) mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the
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`applicant’s goods...” In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir.
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`2004) (citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1346, 57 USPQ2d 1807, 1812 (Fed.
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`Cir. 2001)); TMEP §1209.01(b). It is enough if a mark describes only one significant function, attribute,
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`or property of the goods. In re The Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d
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`1217, 1219 (Fed. Cir. 2012); TMEP §1209.01(b); see In re Oppedahl & Larson LLP, 373 F.3d at 1173, 71
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`USPQ2d at 1371. Accordingly, the fact that the term COMPOSITE does not describe the specific
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`elements or ingredients of the Applicant’s supplements, does not render the proposed mark suggestive
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`rather than merely descriptive. It is sufficient that the proposed mark informs the consumer that the
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`Applicant’s supplements are composite in nature, or a blend of multiple wholesome ingredients, and are
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`in the form of cubes presumably for ease of use, which are significant attributes of the Applicant’s
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`goods, to render the proposed mark merely descriptive. Moreover, the fact that the multiple ingredient
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`blend of Applicant’s supplements is proprietary in nature does not obviate the determination of mere
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`descriptiveness. See again the Internet excerpt of record from nutraingredients-use.com specifically
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`referring to “a turmeric and mulberry composite supplement” that is also made from “proprietary
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`combinations.” See Internet excerpt from nutraingredients-use.com attached to the Examining
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`Attorney’s Final Office Action dated February 13, 2017, TICRS pages 23 & 25. (Emphasis added.)
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`Furthermore, it is the Examining Attorney’s position that the manner in which the
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`Applicant portrays the proposed mark to the consumer should be given considerable weight.
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`Advertising material is generally a competent source for determining how the public perceives the mark
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`in connection with applicant’s goods. See In re N.C. Lottery, 866 F.3d 1363, 1367-68, 123 USPQ2d 1707,
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`1709-10 (Fed. Cir. 2017); In re Nett Designs, Inc., 236 F.3d 1339, 1342, 57 USPQ2d 1564, 1566 (Fed. Cir.
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`2001) (citing In re Bed & Breakfast Registry, 791 F.2d 157, 160, 229 USPQ 818, 819 (Fed. Cir. 1986));
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`TMEP §1209.01(b). In fact, the consumer typically receives its cues from the product manufacturer as to
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`the specific nature of its goods. The Applicant’s own website advertisement of record specifically
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`informs the consumer that its supplements are “composite” in nature, or composed of “a special blend”
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`of multiple wholesome ingredients, i.e. “vital nutrients, vitamins and minerals” and “protein, food-
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`derived vitamins, sprouted seeds and minerals”, and that they are in the form of “dense cubes.”
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`Therefore, the Applicant’s own advertisement leaves nothing to the imagination of the consumer in this
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`instance. Accordingly, the Applicant’s argument that the proposed mark will be perceived by consumers
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`as “an odd combination of two unrelated terms” is unpersuasive. See Applicant’s Appeal Brief at page 2,
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`paragraph 3.
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`The Applicant additionally argues that the Examining Attorney has improperly
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`dissected the proposed mark, or has considered it “piecemeal”, rather than in its entirety. See
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`Applicant’s Appeal Brief at page 4, paragraph 3. Specifically, the Applicant argues that “(t)he terms
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`COMPOSITE and CUBES would not likely be separated out by consumers into its various elements; the
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`mark would be read and seen as unitary.” See Applicant’s Appeal Brief at page 6, paragraph 2. However,
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`while marks comprising more than one element must generally be considered as a whole and should not
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`be dissected, a trademark examining attorney may consider the significance of each element separately
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`in the course of evaluating the mark as a whole. See In re Hotels.com, L.P., 573 F.3d 1300, 1301, 1304,
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`1306, 91 USPQ2d 1532, 1533, 1535, 1537 (Fed. Cir. 2009) (holding HOTELS.COM generic for information
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`and reservation services featuring temporary lodging when noting that the Board did not commit error
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`in considering “the word ‘hotels’ for genericness separate from the ‘.com’ suffix”). The evidence of
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`record clearly establishes that the terms COMPOSITE and CUBES are each merely descriptive of
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`Applicant’s composite supplements in cube form, and it is the Examining Attorney’s position that the
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`meaning of the combination COMPOSITE CUBES will not be lost on the consumer when viewed in
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`relation to Applicant’s particular composite supplements for pets in cube form. This is especially true in
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`light of Applicant’s informative advertising. Essentially, it is the Examining Attorney’s position that the
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`proposed mark is nothing more than the sum of its parts.
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`It is the Applicant’s position that COMPOSITE CUBES “is something more than the sum
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`of its parts” as it “creates a unique commercial impression, such that the average purchaser would see
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`the terms as inseparable and understand that the COMPOSITE CUBES mark has a meaning of its own,
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`independent of the meaning of its constituent elements.” See Applicant’s Appeal Brief at page 6,
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`paragraph 2. See also Applicant’s Appeal Brief at page 7, paragraph 3 wherein Applicant states
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`COMPOSITE CUBES “is an incongruous or strange way to identify ‘nutritional supplements for pets’...”
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`The Applicant, however, has failed to indicate what other unique or incongruous impression the
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`proposed mark makes when viewed in relation to the goods identified. The Applicant does state that
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`COMPOSITE CUBES can create the impression of a product that “contains various types of different
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`cubes…” See Appeal Brief at page 7, paragraph 3. However, this argument is without merit because
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`there is no evidence of record showing consumer familiarity of products that contain a number of
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`“different cubes” offered together, and because it considers COMPOSITE CUBES in the abstract, rather
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