Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in Serial No. 77131419.
MEREDITH M. WILKES, Jones Day, of Cleveland, Ohio, for appellant. With her on the brief was ANGELA R. GOTT.
NATHAN K. KELLEY, Deputy General Counsel for Intellectual Property Law and Solicitor, United States Patent and Trademark Office, of Alexandria, Virginia, for appellee. With him on the brief were KRISTI L. R. SAWERT and CHRISTINA J. HIEBER, Associate Solicitors. Of counsel was THOMAS L. CASAGRANDE, Associate Solicitor.
Before REYNA, WALLACH, and TARANTO, Circuit Judges.
Reyna, Circuit Judge.
This case is on appeal from the Trademark Trial and Appeal Board (" Board" ) at the United States Patent and Trademark Office. Appellant Nordic Naturals, Inc. (" Nordic" ) sought to register CHILDREN'S DHA, in standard characters, for " nutritional supplements containing DHA." " DHA" is the abbreviation for docosahexaenoic acid, an omega-3 fatty acid that assists in brain development. The Board affirmed the examining attorney's rejection of the mark as generic or, in the alternative, as merely descriptive and lacking acquired distinctiveness. Because the Board's conclusion that the mark is generic
is supported by substantial evidence, we affirm.
Nordic filed U.S. Trademark Application Serial No. 77/131,419 seeking registration for CHILDREN'S DHA for nutritional supplements. During prosecution, Nordic agreed to disclaim the exclusive use of " DHA" apart from its use in the mark as a whole. J.A. 1998. It also clarified that the goods in question are " designed for use by children." J.A. 1989. The examining attorney finally rejected the mark as generic, or alternatively, as lacking acquired distinctiveness.
Nordic appealed to the Board. The Board found that the relevant goods were adequately defined by Nordic's description: " nutritional supplements containing DHA." The Board then found that the relevant public for these goods " consists of parents or other adults seeking nutritional supplements containing DHA for children." J.A. 8. With these definitions in mind, the Board reviewed the record evidence. The Board cited dictionary definitions of " child" and " DHA," and concluded that " children's DHA" merely described an essential fatty acid for children, without indicating a source. J.A. 10. The record also included third-party uses of " children's DHA" both to describe DHA products for children in general and children's DHA products other than Nordic's. Based upon this, the Board concluded that children's DHA " is the generic name for nutritional supplements containing DHA inasmuch as this wording encompasses nutritional supplements containing DHA formulated for children." J.A. 22.
In the alternative, assuming the mark was not generic, the Board also considered whether it had acquired distinctiveness. J.A. 22-23. The Board acknowledged that Nordic has enjoyed commercial success with its products bearing the children's DHA label. Nevertheless, based upon " all the evidence of record," the Board concluded that the mark was not ...