Digest of IN RE TRIVITA, INC, No. 2014-1383 (Fed. Cir. Apr. 17, 2015) (precedential). On appeal from the Patent Trial and Appeal Board. Before Newman, Moore, and Hughes.

Procedural Posture: The Patent Trial and Appeal Board affirmed the rejection of a trademark application under section 2(e)(1) of the Lanham Trademark Act as descriptive. Applicant appealed. The CAFC affirmed.

  • Trademarks: The Board properly determined that the term “NOPALEA,” when applied to dietary and nutritional supplements containing nopal cactus juice, was improperly descriptive and not registrable as a trademark. While the marked supplements may have contained ingredients from Opuntia and not Nopalea cactus, substantial evidence supported the Board’s finding that consumers would nonetheless understand the mark to convey information that the supplement contains ingredients from the Nopalea cactus. Further, there was no showing of any non-descriptive use of the term “NOPALEA.”