The Board affirmed refusals of the marks PLAZMA and PLAZMA REACTIVE PUMP for "dietary and nutritional supplements; dietary and nutritional supplements for endurance sports; dietary supplements," finding the marks deceptive and, alternatively, deceptively misdescriptive under Section 2(e)(1). In re Monsterops LLC, Serial Nos. 86295483 and 86295490 (May 15, 2017) [not precedential]. (Opinion by Judge Larkin).
Section 2(a) Deceptiveness: Section 2(a) prohibits registration of a mark that comprises (i.e., includes) deceptive matter. A mark may be deemed deceptive on the basis of a single term embedded in the mark. Section 2(a) deceptiveness is an absolute bar to registration.
The test for deceptiveness has three required elements:
1. Is the term misdescriptive of a character, quality, function, composition, or use of the goods; 2. If so, are prospective purchasers likely to believe that the misdescription actually describes the goods; and 3. If so, is the misdescription likely to affect the purchasing decision of a significant portion of relevant consumers. In re Tapco Int'l Corp. 122 USPQ2d 1368, 1371 (TTAB 2017) (citing In re Budge, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988)).
The Board found, and applicant did not dispute, that consumers will understand "PLAZMA" to have the meaning of its phonetic equivalent, "plasma." In the context of the goods, "plasma" means the liquid portion of blood in which cells are suspended. Examining Attorney Shaila E. Lewis argued that PLAZMA misdescribes the goods because, as shown by third-party website evidence, plasma in protein form is a known ingredient in dietary and nutritional supplements, and the word "protein" by itself is used to refer to plasma protein. Applicant admitted that its goods do not contain plasma protein.
Applicant contended that the use of the term PLAZMA refers to the "mode of action" by which the goods provide "rapid absorption into blood plasma and enhanced uptake into working muscle," pointing to its product label and related materials. The Board was not impressed. The issue of misdeceptiveness must be determined based on the marks themselves, not on the basis of extrinsice materials.
Based on the evidence of record showing that third parties tout the inclusion of plasma protein in their products, the Board found that consumers are likely to believe the misrepresentation.
And finally, as to materiality, plasma is hailed as providing an "edge" to bodybuilders and athletes, enabling them to train harder and more efficiently, recover more rapidly, and achieve greater muscle mass and endurance. The Board therefore found that the involved misdescription is material for purposes of Section 2(a).
And so the Board affirmed the deceptiveness refusal.
Section 2(e)(1) Deceptive Misdescriptiveness: For completeness, the Board also considered the alternative Section 2(e)(1) deceptive misdescriptiveness refusals. The relevant test consists of the first two parts of the Section 2(a) deceptiveness test, and does not include a materiality requirement. In view of the Board's findings above, it affirmed these refusals as well.
Finally, in connection with the alternative Section 2(e)(1) refusals, the Board required disclaimer of the term PLAZMA, because a mark refused under this provision is eligible for registration on the Principal Register under Section 2(f) or on the Supplemental Register.