TriVita filed a trademark application for the mark NOPALEA for use in connection with dietary and nutritional supplements containing nopal juice.  The examiner rejected the mark as descriptive because TriVita’s products would contain nopal, which is derived from “the nopalea plant.”  The TTAB affirmed the rejection, noting multiple websites using Nopalea as the name of a genus of cactus used in food and supplements.  Although the term nopal could refer to two different genera of cactus (Opuntia and Nopalea), the TTAB found that nopal and nopalea had been used interchangeably.

The Federal Circuit affirmed, concluding that substantial evidence supported the TTAB’s decision.  The Federal Circuit agreed that, because nopalea and nopal had been used interchangeably, and because nopalea described a genus of cactus from which nopal juice is derived, consumers could conclude that TriVita’s products contained ingredients from the Nopalea cactus.  The mark was thus descriptive of goods containing nopal juice.  The Federal Circuit rejected TriVita’s argument that the average consumer would not be sophisticated enough to know the meaning of nopalea, noting that the TTAB had identified multiple instances of nopal and nopalea being used interchangeably.  TriVita also argued that it could ensure that the mark would not be used descriptively because its products were available only through TriVita and its distributors, but the Federal Circuit saw no evidence to support the alleged non-descriptive use.  

In re Trivita, Inc., Appeal No. 2014-1383 (Fed. Cir. April 17, 2015).