In re TriVita, Inc., ___F.3d ___ (Fed. Cir. Apr. 17, 2015) (NEWMAN, Moore, Hughes) (P.T.A.B.) (1 of 5 stars)

Federal Circuit affirms rejection of mark as descriptive.

The applied-for mark was NOPALEA, for dietary supplements containing nopal juice.  “Nopalea” is a genus of cacti from which nopal juice is sometimes derived, though TriVita indicated that its product used only juice from other cacti commonly called “nopal cacti.”  Notwithstanding TriVita’s actual ingredients, substantial evidence supported the Board’s finding that customers would assume that the NOPALEA mark denotes products containing ingredients from cacti in the Nopalea genus.  Second, while the Board did not make specific findings as to the level of sophistication of actual consumers likely to encounter TriVita’s goods, there was “abundant” evidence of “nopal” and “nopalea” being used interchangeably.  Third, though TriVita urged that by selling only through direct marketing, it could ensure that its mark would only ever be used non-descriptively, it did not submit any actual factual showing to support that contention, and in fact there was evidence of descriptive use by some TriVita distributors.  Finally, there was no error in the Board’s citation to 1970 law for the proposition that a trademark applicant cannot appropriate, via trademark application, generic names of key ingredients.