The Board affirmed a Section 2(e)(1) refusal of the mark BEST PROTEIN, finding it merely descriptive of "dietary and nutritional supplements" [PROTEIN DISCLAIMED]. Applicant BPI Sports asserted that some imagination and/or forethought would be required to determine the meaning of the mark, but the Board disagreed. Would you have appealed? In re BPI Sports, LLC, Serial No. 86414907 (July 11, 2016) [not precedential].

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Examining Attorney Eric Sable relied on dictionary definitions of "best" and "protein," and on product labels showing that protein is a common, heavily promoted ingredient of dietary and nutritional supplements (many of the products having "protein" in their names). The term PROTEIN is prominently displayed in applicant's own "fact sheet" and is an ingredient of applicant's supplements. The examining attorney also submitted website pages showing use of "best protein" in connection with those products.

Applicant BPI feebly argued that some thought or imagination is required in order to determine the mark's meaning in relation to its goods:

...the Examiner negates to mention that the cited Oxford Dictionary also states that “best” is defined to mean “most enjoyable” and “most appropriate, advantageous, or well advised.” Applicant submits that consumer (sic) can simply find that Applicant’s product is a “most enjoyable” dietary and nutritional supplement or a “most appropriate” or “well advised” dietary and nutritional supplement; neither of which would merely describe “the desirable quality of the goods” as asserted by the Examiner.

The Board, however, observed that laudatory terms are generally merely descriptive, and it had no doubt that BEST PROTEIN merely describes applicant's products because it identifies an ingredient thereof.

Finally, applicant pointed to several registrations for marks including the word PROTEIN for supplements, but the Board pointed out once again that the Board is not bound by decisions of examining attorneys in other cases. Each application must be examined on its own merits.

And so the Board affirmed the refusal.