IP Law Daily, TRADEMARK—TTAB: ‘EXPERIMENTAL AND APPLIED SCIENCES’ mark for dietary supplements refused registration, (Feb 23, 2024)

By Saurabh Kashyap, B.A., LL.B.

TTAB rules that the proposed mark fails to function as a unique source identifier and lacks distinctiveness.

In a non-precedential decision, the Trademark Trial and Appeal Board (TTAB) affirmed a Trademark Examining Attorney’s refusal to register Hi-Tech Pharmaceuticals, Inc.'s trademark application for the proposed mark EXPERIMENTAL AND APPLIED SCIENCES for dietary and nutritional supplements. The Board determined that the evidence showed the mark functioned solely as a trade name rather than as an indicator of the source of the applicant's goods, thereby not meeting the requirements outlined in Sections 1, 2, and 45 of the Trademark Act (In re Hi-Tech Pharmaceuticals, Inc., February 14, 2024).

Background. Hi-Tech Pharmaceuticals, Inc., the applicant, applied to register the proposed mark EXPERIMENTAL AND APPLIED SCIENCES on the Principal Register for dietary and nutritional supplements in International Class 5. The application, filed on February 6, 2019, was based on an alleged bona fide intention to use the mark in commerce. However, the Trademark Examining Attorney refused registration on the grounds that it was being used merely to identify the applicant's business, not to indicate the source of its dietary and nutritional supplements. When the refusal was made final, the applicant appealed.

Trade name. The applicant contended that its use of the mark, coupled with its acronym "EAS," established a unique connection to its products, thereby functioning as a trademark. It argued that this combination implied a direct link between the "EAS" goods and the proposed mark EXPERIMENTAL AND APPLIED SCIENCES, suggesting that such usage sufficiently indicated the source of the goods to consumers. Conversely, the Trademark Examining attorney maintained that the proposed mark was used merely as a trade name, serving only to identify the business and not as a trademark to indicate the source of the applicant’s goods.

The TTAB agreed with the Trademark Examining Attorney’s contention. Citing In re Diamond Hill Farms, 32 USPQ2d 1383 (TTAB 1994) and In re Univar Corp., 20 USPQ2d 1865 (TTAB 1991), the Board emphasized that a mark must engender a separate commercial impression from a trade name to qualify as a trademark.

Examination of specimens. Upon reviewing the original and substitute specimens provided by the applicant, the TTAB concluded that the manner in which the mark was presented did not establish it as a source identifier in the eyes of consumers. The mark's appearance on product labels was deemed too closely integrated with other informational text, such as the manufacturer's details, to be recognized as a trademark. The Board's examination of the specimens revealed that the proposed mark's presentation failed to set it apart from the surrounding text, thus not fulfilling the criteria for trademark use.

Despite arguments from the applicant attempting to link the mark with its acronym "EAS" as a unique identifier of its products, the TTAB remained unconvinced. The Board clarified that the appeal focused on the use of the proposed mark EXPERIMENTAL AND APPLIED SCIENCES, not the acronym EAS, and found no persuasive evidence to support the claim that the mark functioned as a trademark.

Ultimately, the TTAB concluded that the proposed mark, as used by the applicant, did not serve the trademark function of distinguishing the applicant's goods from those of others and affirmed the refusal to register.

The Case is Serial No. 88291540.

Attorneys: Gregory L. Hillyer (Hillyer Legal, PLLC) for Hi-Tech Pharmaceuticals, Inc. Marlene Bell for the USPTO.

Companies: Hi-Tech Pharmaceuticals, Inc.

Cases: Trademark USPTO