This Opinion Is Not a
`Precedent of the TTAB
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`Mailed: March 13, 2023
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____
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`Trademark Trial and Appeal Board
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`_____
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`In re Intimate Science
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`_____
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`Serial No. 90123272
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`_____
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`Daniel S. Kirshner of Daniel S. Kirshner, Attorney at Law, LLC.
`for Intimate Science.
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`Michael FitzSimons, Trademark Examining Attorney, Law Office 103,
` Stacy Wahlberg, Managing Attorney.
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`_____
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`Before Wellington, Adlin and Lynch,
` Administrative Trademark Judges.
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`Opinion by Lynch, Administrative Trademark Judge:
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`Serial No. 90123272
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`I. Background
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`Intimate Science (Applicant) seeks registration on the Principal Register of the
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`mark ROSE PETALS (in standard character form) for “Dietary supplements in
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`capsule form not containing rose petals as an ingredient” in International Class 5.1
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`The Examining Attorney refused registration under Trademark Act Section 2(a),
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`15 U.S.C. § 1052(a), on the ground that the proposed mark is deceptive, and
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`alternatively under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the
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`ground that it is deceptively misdescriptive. After the Examining Attorney made the
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`refusal final, Applicant appealed. Applicant and the Examining Attorney filed briefs.
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`We affirm both alternative refusals to register for the reasons below.
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`II. Deceptiveness
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`Trademark Act Section 2(a) bars registration of a mark that “consists of or
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`comprises ... deceptive ... matter.” 15 U.S.C. § 1052(a). A deceptive mark cannot be
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`registered on the Principal or Supplemental Register. 15 U.S.C. § 1091; In re White
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`Jasmine LLC, 106 USPQ2d 1385, 1391 (TTAB 2013). We determine whether a mark
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`is deceptive based on the description of goods. “Registrability of a mark is always
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`considered in conjunction with the identified goods or services, for an applicant
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`cannot obtain rights in a mark in the abstract, only in connection with specified goods
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`or services.” In re ALP of S. Beach Inc., 79 USPQ2d 1009, 1019 (TTAB 2006); see also
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`Roselux Chem. Inc. v. Parson’s Ammonia Co., Inc., 299 F.2d 855, 132 USPQ 627, 632
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`1 Serial No. 90123272 was filed August 19, 2020, under Section 1(b) of the Trademark Act,
`15 U.S.C. § 1051(b), based on Applicant’s alleged bona fide intent to use the mark in
`commerce.
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`Serial No. 90123272
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`(CCPA 1962) (whether a term or mark is merely descriptive must be decided in
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`relation to the goods for which registration is sought and the impact that it is likely
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`to make on the average purchaser of those goods).
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`A proposed mark must be refused as deceptive if:
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`(1) it consists of or comprises a term that misdescribes the character, quality,
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`function, composition, or use of the goods;
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`(2) prospective purchasers are likely to believe that the misdescription actually
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`describes the goods; and
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`(3) the misdescription is likely to affect the purchasing decision of a significant or
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`substantial portion of relevant consumers.
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`In re Budge Mfg. Co., 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988); see also
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`In re Tapco Int’l Corp., 122 USPQ2d 1369, 1371 (TTAB 2017); cf. In re Miracle
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`Tuesday, LLC, 695 F.3d 1339, 104 USPQ2d 1330, 1334 (Fed. Cir. 2012) (the test for
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`materiality incorporates a requirement that a significant portion of the relevant
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`consumers be deceived).
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`A.
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`Is ROSE PETALS a Misdescription of the Goods?
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`The Examining Attorney and Applicant both agree that this prong of the test is
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`satisfied. As Applicant states in its Brief:
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`The applicant concedes that the examiner is correct in
`stating that the mark is misdescriptive. It is conceded that
`the mark contains the wording Rose Petals and that the
`goods to be sold under this mark do not actually contain
`rose petals as an ingredient. As such, the examiner has met
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`Serial No. 90123272
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`his burden to prove the first factor in both grounds for
`rejection.2
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`We agree. Applicant’s identification reflects the misdescription.
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`B.
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`Is the ROSE PETALS Misdescription Believable?
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`While the Examining Attorney contends that consumers would mistakenly believe
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`that the goods contain rose petals, Applicant maintains that consumers would not
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`take the reference literally.
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`The Examining Attorney submitted a variety of evidence to support the
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`believability of supplements containing rose petals. One journal article in the record
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`refers to the “[w]orldwide trend towards the use of natural plant remedies,”3 and the
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`record includes evidence of consumer exposure to dietary supplements consisting of
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`or containing rose petals.4 For example:
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`The Walmart website offers under the “Supplements”
`heading dried rose petals labelled as a “superfood” that can
`be used in tea and as “therapy.”5
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`The Athreya website promotes for sale “Organic Rose Petal
`Powder” described as “An Aromatic Ayurvedic Supplement
`for Promoting a Healthy Cardiac System and Emotional
`Balance.”6
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`2 4 TTABVUE 10.
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`3 December 7, 2020 Office Action at TSDR 2 (papers.ssrn.com).
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`4 While some evidence does not specifically refer to the “capsule form” identified by Applicant,
`because the evidence relates to dietary supplements, we consider it probative of consumer
`expectations regarding ingredients in dietary supplements generally.
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`5 December 21, 2021 Office Action at TSDR 14 (walmart.com).
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`6 July 7, 2021 Office Action at TSDR 2 (athreyaherbs.com).
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`Serial No. 90123272
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`An Amazon webpage shows for sale a Rose Petal 500-gram
`“Herbal Supplement for Anxiety & Stress.”7
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`The Avena Botanicals site offers a Rose Petal Elixir herbal
`supplement.8
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`The Mariano’s website offers an “Essence of Pure Rose
`Petals Dietary Supplement.”9
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`The Nourish by WebMD site includes an article about rose
`petal tea, its health benefits, and its use in traditional
`Chinese medicine.10
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`The Mother Earth Living Website contains an article that
`touts the benefits of rose petals as an herbal medicine,
`including rose petal tea.11
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`Applicant contends that this prong of the deceptiveness test is not satisfied
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`because “rose petals conjure the image of decoration or romance.”12 In support of this
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`argument, Applicant submitted a screenshot of a page of Google search results for
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`“rose petals.”13 According to Applicant, the “internet search … shows that rose petals
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`are most commonly used for decoration, for weddings, and the like.”14 However, a
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`page of search engine hits for “rose petals” simply is not probative of the relevant
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`inquiry because it fails to take account of the goods identified in the involved
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`7 July 7, 2021 Office Action at TSDR 6 (amazon.com).
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`8 July 7, 2021 Office Action at TSDR 7 (avenabotanicals.com).
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`9 December 21, 2021 Office Action at TSDR 2 (marianos.com).
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`10 December 21, 2021 Office Action at TSDR 8-13 (webmd.com).
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`11 July 7, 2021 Office Action at TSDR 15 (motherearthliving.com).
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`12 4 TTABVUE 10 (Applicant’s Brief).
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`13 November 18, 2021 Response to Office Action at TSDR 2.
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`14 4 TTABVUE 10 (Applicant’s Brief).
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`Serial No. 90123272
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`application.15 As noted above, we must consider the consumer perception in the
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`context of the identified goods, and not in the abstract. ALP of S. Beach, 79 USPQ2d
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`at 1019.
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`Here, the evidence shows that wording in the proposed mark “is a common
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`supplement or ingredient in dietary supplements, [and] consumers will believe, based
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`on the mark and the goods at issue, that applicant’s goods contain [it].” In re E5 LLC,
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`103 USPQ2d 1578, 1583 (TTAB 2012). Given consumer exposure to rose petal
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`supplements as shown in the record, supplement consumers would take a reference
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`to ROSE PETALS for supplements literally and believe that Applicant’s “ROSE
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`PETALS” supplements contain that ingredient when, according to Applicant’s
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`identification of goods, they do not. See Budge, 8 USPQ2d at 1261 (where goods of the
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`type at issue “can be and are made from” the material at issue, this creates an
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`inference that the second prong of the deceptiveness test is satisfied); Tapco, 122
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`USPQ2d at 1373 (evidence that “some adhesives are, in fact, clear and that this
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`feature is touted to consumers” sufficient to satisfy burden that proposed mark
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`KLEER ADHESIVES satisfied second element of Budge test).
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`C.
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`Is the Misdescription Material to the Purchasing Decision?
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`We turn next to the third prong of the deceptiveness test, whether the
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`misdescription is likely to affect the purchasing decision of a significant portion of
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`15 The Examining Attorney also correctly points out the more general, additional deficiency
`of search engine hit lists: the minimal surrounding text severely limits their probative value.
`See, e.g. In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (agreeing that
`“the list of GOOGLE search result summaries is of lesser probative value than evidence that
`provides the context within which a term is used”).
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`Serial No. 90123272
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`relevant consumers. Thus, we assess whether prospective purchasers consider rose
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`petals to be an appealing or desirable ingredient that would matter in selecting
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`supplements. See White Jasmine, 106 USPQ2d at 1392 (citing In re Juleigh Jeans
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`Sportswear Inc., 24 USPQ2d 1694, 1698-99 (TTAB 1992)). According to the
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`Examining Attorney, consumers desire rose petal as a supplement ingredient because
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`of its perceived health benefits, rendering it material to the purchasing decision. E5
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`LLC, 103 USPQ2d at 1584 (materiality established based on “important and
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`desirable health benefits” of copper as a supplement ingredient).
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`The Nourish by WebMD site contains a lengthy entry about the health and
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`wellness benefits of rose petals and rose tea.16 Rose petals are described as “a good
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`source of” Vitamin A, Vitamin C, Vitamin E, Iron and Calcium, and as “high in
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`phytonutrients, plant compounds with antioxidant properties. Research shows that
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`phytochemicals can help stop the formation of cancer cells and protect your body from
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`cancer-like changes.”17 Rose tea is described as having “other potential health
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`benefits” such as “Immune System Support,” “Lower[ing] Risk of Chronic Disease,”
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`“Anti-Inflammatory Properties,”
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`“Menstrual Cramp Relief,” and
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`“Aid[ing]
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`Digestion.”18 The site also points out its importance as a remedy in Traditional
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`Chinese Medicine.19
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`16 December 21, 2021 Office Action at 8-13 (webmd.com).
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`17 Id.
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`18 Id.
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`19 Id. at 8-9; see also December 21, 2021 Office Action at TSDR 5 (livestrong.com) (“Ancient
`Chinese medicine used roses to treat digestive disorders, the pain from injuries and
`menstrual irregularities.”).
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`Serial No. 90123272
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`Examples of supporting evidence for materiality from other sources include:
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`An article in the Seattle Times discusses the nutritional
`benefits of edible flowers, and indicates that roses “contain
`vitamin C, a potent antioxidant nutrient.”20
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`The Walmart website touts rose petals as a “Superfood,”
`noting that they contain “many enriching elements such as
`vitamins and antioxidants. They also have therapeutic
`benefits that can nourish the skin, increase immunity,
`reduce stress, and improve digestion.”21
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`The Athreya – Wellness Through Ayurveda website
`promotes its rose petal powder nutritional supplement as
`having a “nutrient-rich phytochemical content,” having
`numerous health benefits, such as promoting cardiac
`health, digestive health, healthy skin, and having “a
`calming and relaxing effect.”22
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`The Avena Botanicals Rose Petal Elixir herbal supplement
`refers to its “medicinal properties,” noting that the
`supplement “relaxes the nervous system, eases feelings of
`impatience and agitation associated with PMS and
`menopause” and notes that roses “support the digestive
`system, cool emotional heat and inflammation related to
`women’s reproductive health, and fill the heart with
`harmony and peace.”23
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`The Napiers Rose Petals Herbal Supplement is described
`as providing “[t]raditional support for Anxiety & Stress
`and Menstruation.”24
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`Mariano’s website refers to rose petals as “an ideal essence
`for the skin.”25
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`20 December 7, 2020 Office Action at TSDR 9 (seattletimes.com).
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`21 December 21, 2021 Office Action at TSDR 14-15 (walmart.com).
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`22 July 7, 2021 Office Action at TSDR 2-5 (athreyaherbs.com).
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`23 July 7, 2021 Office Action at TSDR 7-8 (avenabotanicals.com).
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`24 July 7, 2021 Office Action at TSDR 6 (amazon.com).
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`25 December 21, 2021 Office Action at TSDR 2 (marianos.com).
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`Serial No. 90123272
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`The G. Baldwin & Co. site includes a post titled “5 Benefits
`of Rose Petals for Natural Health and Beauty – Inside Out
`Beauty” that touts its vitamin C for skin, antioxidants that
`can treat sore throats, ability to soothe stress, and ability
`to boost liver function.26
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`The Mother Earth Living site discusses the use of roses in
`herbal medicine, noting that “Rose petals are mildly
`sedative, antiseptic, anti-inflammatory, and anti-parasitic.
`They’re also mild laxatives, a good supportive tonic for the
`heart, and great for lowering cholesterol (romantic, right?).
`Taken internally, their anti-inflammatory properties make
`them a wonderful treatment for sore throats or ulcers.
`They can stimulate the liver and increase appetite and
`circulation…. Rose can also lower your body temperature
`and help bring down a fever or cool you off in the summer.
`As an anti-spasmodic, it helps relieve spasms in the
`respiratory system (asthma and coughs), in the intestinal
`tract (cramping, constipation), and in the muscles (cramps
`and sports injuries). Adding its antiviral qualities, you’ve
`got an entire winter’s medicine chest in one herb. The
`benefits don’t stop there, however! Rose petals … can help
`regulate and bring on delayed menstrual cycles…. They’re
`also a uterine tonic – healing cysts, infections, and
`bleeding. And, just like the essential oil, rose petals are a
`nervine; they help soothe and calm the nervous system,
`easing tension and pain.”27
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`The record in its entirety convinces us that whether a supplement contains rose
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`petals would be material to the purchasing decision of a significant portion of the
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`relevant consumers. “[I]ndirect evidence of materiality is permitted, and an inference
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`of materiality may be made….” In re Les Halles de Paris J.V., 334 F.3d 1371, 67
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`USPQ2d 1539, 1542 (Fed. Cir. 2003) (discussing materiality in the context of Section
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`26 July 7, 2021 Office Action at TSDR 11-14 (baldwins.co.uk). Although this appears to be a
`U.K.-based blog, it is in English and would be accessible to and likely to be encountered by
`U.S. consumers.
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`27 July 7, 2021 Office Action at TSDR 15-16 (motherearthliving.com).
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`Serial No. 90123272
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`2(e)(3) geographic misdescriptiveness). The evidence shows that consumers are
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`motivated to purchase dietary supplements containing rose petals in particular
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`because they are deemed to have health benefits and serve as a medicinal remedy.
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`The record strongly reflects the desirability, for health reasons, of rose petals, making
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`the inference of materiality appropriate.
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`D. Conclusion as to Deceptiveness
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`Having determined that each of the three prongs of the deceptiveness test is met,
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`we conclude that the refusal to register ROSE PETALS for Applicant’s identified
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`“dietary supplements in capsule form not containing rose petals as an ingredient” is
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`appropriate and therefore affirm it.
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`III. Deceptive Misdescriptiveness
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`The refusal as deceptive under Section 2(a) absolutely bars registration, but for
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`completeness, we briefly address the refusal based on deceptive misdescriptiveness.
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`White Jasmine, 106 USPQ2d at 1394. The test for deceptive misdescriptiveness is
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`identical to the first two prongs of the deceptiveness test -- in this case whether ROSE
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`PETALS misdescribes the goods as identified, and whether consumers likely would
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`believe the misdescription. See id. at 1395. For the reasons discussed in the
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`deceptiveness analysis, both prongs of the test for deceptive misdescriptiveness are
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`satisfied. We therefore affirm that refusal in the alternative.
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`Decision: The refusal to register Applicant’s mark is affirmed.
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