United States: TTABlog Test: Is ZERO MEAT just a description of animal, fish and poultry certification services?
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The USPTO refused to register the proposed trademark ZERO MEAT for “Testing, analysis and evaluation of third party products and services to determine compliance with certification standards; testing, analysis and evaluation of third party food products to determine compliance with certification standards relating to animals, fish or poultry “, on the ground of simple description. The applicant Equity argued that the proposed mark is a coined expression and that other terms such as “contains no…”, or free from…” or “vegan” or “vegetarian” would be used to indicate the absence of animal, fish or poultry content in the food How do you think this came out? In re Equity IP HoldingsLLCserial number 88517758 (December 16, 2021) [not precedential] (Opinion of Judge George C. Pologeorgis).
Examining attorney Morgan L. Meyers relied on dictionary definitions of “zero” and “meat”, as well as several Internet articles employing the term “zero meat”. The applicant, in addition to the arguments mentioned above, pointed to existing registrations of marks consisting of the term “zero” with another word, asserting that the proposed mark deserves similar treatment. And he claimed that any doubts on the issue of mere descriptiveness should be resolved in his favor.
The Board was not affected by the applicant’s arguments. The “coined term” claim was belied by evidence showing use of the term ZERO MEAT by others. Furthermore, even if the applicant were the first user of the term, that would not prevent a finding of a mere descriptive character.
As for the third-party entries, the applicant failed to produce them in evidence. In any event, the Commission must make its decision in each case on its own merits. “Even though some earlier inscriptions had characteristics similar to [Applicant’s]request, acceptance by the PTO of such prior registrations shall not bind the Commission. . . .” In re Nett Designs Inc.57 USPQ2d at 1566.
The record showed that third parties use the proposed mark to describe products that do not contain meat. “The evidence supports a conclusion that consumers who encounter the ZERO MEAT wording in the course of the applicant’s services would immediately understand that the services rendered by the applicant guarantee or certify that certain food products do not contain meat.”
And so, having no doubt on the issue at hand, the Board upheld the refusal under Article 2(e)(1).
Applicant requested, in the alternative, that the Application be returned to Examining Counsel so that Applicant “may optionally” amend the Application to proceed with the Supplemental Register “at the commencement of use of the brand”. No dice, the Council said. The applicant never made such a request while the application was pending, although examining counsel suggested such an amendment.
The Commission pointed out that once a decision has been made on an appeal, the application can only be reopened to enter a disclaimer or by order of the Director. No exception applied here.
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