To:
`
`Subject:
`
`Sent:
`Sent As:
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`E. ANTHONY FIGG(pto-tm-email@rfem.com)
`U.S. Trademark Application Serial No. 90904642 - ORYZA HEALTHY - -
`4942-105
`June 11, 2024 01:22:48 PM EDT
`tmng.notices@uspto.gov
`
`Attachments
`
`United States Patent and Trademark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
`
`U.S. Application Serial No.  90904642
`
`Mark:   ORYZA HEALTHY
`
`Correspondence Address:  
`E. ANTHONY FIGG
`ROTHWELL, FIGG, ERNST & MANBECK, PC
`901 NEW YORK AVENUE, N.W.
`SUITE 900 EAST
`WASHINGTON DC 20001
`UNITED STATES
`
`Applicant:   Oryza Pharmaceuticals, Inc.
`
`Reference/Docket No.  4942-105
`
`Correspondence Email Address:   pto-tm-email@rfem.com
`
`
`
`
`
`
`REQUEST FOR RECONSIDERATION AFTER FINAL ACTION DENIED
`
`Issue date:   June 11, 2024
`
`Applicant’s request for reconsideration is denied.   See 37 C.F.R. §2.63(b)(3).  The trademark
`examining attorney has carefully reviewed applicant’s request and determined the request did not:  (1)
`raise a new issue, (2) resolve all the outstanding issue(s), (3) provide any new or compelling evidence
`with regard to the outstanding issue(s), or (4) present analysis and arguments that were persuasive or
`shed new light on the outstanding issue(s).  TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`Specifically, in its communication dated February 9, 2024, applicant contends that the record does not
`include sufficient evidence to establish a prima facie case that the mark is deceptive under Section 2(a)
`because the term "ORYZA" in the mark is not misdescriptive, consumers are not likely to believe that
`"ORYZA" describes applicant's goods, and the misdescription is not likely to affect the purchasing
`decisions of consumers.
`
`
`

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`the goods
`indicates
`However, applicant’s mark consists of the wording “ORYZA”, which
`contain plants from the grass family.  See previously attached evidence from Wikipedia. However,
`according to the evidence of record, applicant’s goods do not in fact contain this ingredient or
`component.
`
`Moreover, consumers would be likely to believe this misdescription in the mark, because the previously
`attached evidence from Tru Body Wellness, Walmart, the Herb Source, Time Challenger Labs, Bhrum,
`Nootropics Depot, and Hammer Nutrition shows that it is common in applicant’s industry for the
`relevant goods to include plants from the grass family, and consumers have come to expect such an
`ingredient or component. Specifically, this evidence shows third parties providing supplements and
`pharmaceutical preparations containing "ORYZA" or plants from the grass family as a component or
`ingredient. 
`
`Further, a misdescriptive ingredient or component would be material to the purchasing decision of a
`significant portion of the relevant consumers when the evidence demonstrates that the misdescription
`would make the product or service more appealing or desirable to prospective purchasers. See In re
`White Jasmine LLC, 106 USPQ2d 1385, 1392 (TTAB 2013); TMEP §1203.02(d). Here, the previously
`attached evidence from Nutritional Wellness.com, Global Foodbook, Medicine.net, Digicomply,
`Knowde, Drugs.com, and RX List shows that products with the ingredient or component Oryza, are
`more appealing or desirable because it is used for reduction of cardiovascular risks, antioxidant
`properties, control of diabetes, reduction of cholesterol, treatment of skin inflammation, and
`strengthening the immune system, among other things. Thus, the misdescription is likely to affect a
`significant portion of the relevant consumers’ decision to purchase applicant’s goods.
`
`In its communication dated February 9, 2024, applicant also contends the mark is not deceptively
`misdescriptive under Section 2(e)(1) because it does not misdescribe the goods at issue, and even if it
`did, the evidence of record does not show the consuming public is accustomed to seeing "ORYZA" in
`relation to the relevant goods. However, an applied-for mark is deceptively misdescriptive when (1) the
`mark misdescribes the goods and (2) consumers would be likely to believe the misrepresentation.  In re
`Dolce Vita Footwear, Inc., 2021 USPQ2d 478, at *11 (TTAB 2021); TMEP §1209.04.
`
`Here, applicant's mark consists of the wording “ORYZA”. As shown by the previously attached
`evidence from Wikipedia, "ORYZA" is "a genus of plants in the grass family". Because the mark refers
`to "ORYZA", the public will believe the goods contain plants in the grass family. Moreover, it is
`plausible that the goods would possess such a feature or characteristic because the previously attached
`evidence from Tru Body Wellness, Walmart, the Herb Source, Time Challenger Labs, Bhrum,
`Nootropics Depot, and Hammer Nutrition shows that supplements and pharmaceutical preparations can
`be made from "orzya". However, applicant has stated for the record that the goods do not in fact
`possess this ingredient or component. Therefore, the wording “ORYZA” in the mark misdescribes the
`goods.
`
`Further, the Board has applied the reasonably prudent consumer test in assessing whether consumers
`are likely to believe the misrepresentation.  In re Dolce Vita Footwear, Inc., 2021 USPQ2d 478, at *11.
`In this case, the previously attached evidence from Tru Body Wellness, Walmart, the Herb Source,
`Time Challenger Labs, Bhrum, Nootropics Depot, Hammer Nutrition, NutritionalWellness.com, Global
`Foodbook, Medicine.net, Digicomply, Knowde, Drugs.com and RX List shows third parties providing
`supplements containing "ORYZA" or plants from the grass family as a component or ingredient. As
`such, the reasonably prudent consumer is likely to believe the representation, because consumers
`regularly encounter supplements and pharmaceutical preparations made from plants in the grass 
`
`

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`family. 
`
`Accordingly, applicant's arguments are unpersuasive, and the following refusals made final in the
`Office action dated August 10, 2023 are maintained and continued: 
`
`
`•
`•
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`Section 2(a) Refusal - Mark is Deceptive
`Alternative Section 2(e)(1) Refusal - Mark is Deceptively Misdescriptive
`
`
`See TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`If applicant has already filed an appeal with the Trademark Trial and Appeal Board, the Board will
`be notified to resume the appeal.   See TMEP §715.04(a).  
`
`If applicant has not filed an appeal and time remains in the response period for the final Office
`action, applicant has the remainder of that time to (1) file another request for reconsideration that
`complies with and/or overcomes any outstanding final requirement(s) and/or refusal(s), and/or (2) file a
`notice of appeal to the Board.  TMEP §715.03(a)(ii)(B).
`
`
`/Melissa Sturman/
`Melissa Sturman
`Examining Attorney
`LO125--LAW OFFICE 125
`(571) 272-2781
`Melissa.Sturman@USPTO.GOV
`
`
`
`

`

`United States Patent and Trademark Office (USPTO)
`
`USPTO OFFICIAL NOTICE
`
`Office Action (Official Letter) has issued
`on June 11, 2024 for
`U.S. Trademark Application Serial No.  90904642
`
`A USPTO examining attorney has reviewed your trademark application and issued an Office
`action.  You must respond to this Office action to avoid your application abandoning.  Follow
`the steps below.  
`
`(1)   Read the Office action.  This email is NOT the Office action.  
`
`(2)  Respond to the Office action by the deadline using the Trademark Electronic Application
`System (TEAS) or the Electronic System for Trademark Trials and Appeals (ESTTA), as
`appropriate.  Your response and/or appeal must be received by the USPTO on or before 11:59
`p.m. Eastern Time of the last day of the response deadline.  Otherwise, your application will
`be abandoned.  See the Office action itself regarding how to respond.  
`
`(3)  Direct general questions about using USPTO electronic forms, the USPTO website, the
`application process, the status of your application, and whether there are outstanding deadlines
`to the Trademark Assistance Center (TAC).  
`
`After reading the Office action, address any question(s) regarding the specific content to the
`USPTO examining attorney identified in the Office action.  
`
`GENERAL GUIDANCE
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`

`•
`
`Hiring a U.S.-licensed attorney .   If you do not have an attorney and are not required to
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`specializing in trademark law to help guide you through the registration process.  The
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