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SUPER Alternative Request for SALT on Supplemental Register

Posted by James Juo | Aug 02, 2022 | 0 Comments

Section 2(e)(1) of the Trademark Act prohibits the registration of a mark which, when used on or in connection with the applicant's goods, is merely descriptive of them.

Descriptiveness must be evaluated “in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); see also In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987).

The determination of mere descriptiveness must not be made in the abstract or on the basis of guesswork. In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978). The question is whether someone who knows what the goods are will understand the term to convey information about them. DuoProSS Meditech Corp. v. Inviro Medical Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012).

A mark need not immediately convey an idea of each and every specific feature of the goods in order to be considered merely descriptive; rather, it is sufficient that the mark immediately describes one significant attribute, function or property of the goods. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973). The fact that a term may have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).


For an application seeking registration on the Principal Register of the mark SUPERSALT (in standard characters) for “Dietary supplements” in International Class 5, the Examining Attorney refused registration under Section 2(e)(1) as being merely descriptive. In re Super Salt, LLC, Ser. No. 88143498 (TTAB Jul. 22, 2022).

On appeal, the Trademark Trial and Appeal Board (“TTAB”) found that the word “super” in the SUPERSALT mark “conveys, in a laudatory manner, that Applicant's electrolyte salt dietary supplements are superior, first rate, or high quality and/or contain a larger amount of salt as its main ingredient with more minerals, making it a more powerful electrolyte replacement supplement.”

It is clear from the specimen that the main ingredient is Real Salt, a pink sea salt from an ancient deposit in Utah which is claimed to be superior to regular salt, as it contains +60 natural minerals. Although Applicant asserts that the mark informs through suggestion regarding the nature of the goods, given that salt is a major component of Applicant's electrolyte salt supplements, we find that the combination SUPERSALT immediately describes a significant feature or characteristic of the goods and is therefore merely descriptive.

The TTAB affirmed the refusal, finding that “SUPERSALT describes rather than suggests these characteristics of the applicant's goods.”

Alternative Request to Amend on the Supplemental Register

The applicant, however, also had made an alternative request in the appeal to amend the application to seek registration on the Supplemental Register. The Examining Attorney previously had indicated during prosecution that the application was eligible to seek registration on the Supplemental Register. Accordingly, the TTAB granted this alternative request, so the SUPERSALT mark “will be registered on the Supplemental Register in due course.”

The trademark attorneys at Thomas P. Howard, LLC are experienced in the prosecution of trademark applications before the USPTO, as well as in enforcing trademarks or defending against infringement claims in litigation nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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