from: dang, peter sent: 5/6/2021 3:49:39 pm to: ttab
TRANSCRIPT
From: Dang, Peter
Sent: 5/6/2021 3:49:39 PM
To: TTAB EFiling
CC:
Subject: U.S. Trademark Application Serial No. 88766676 - QUAD-MASS - N/A - EXAMINER BRIEF
*************************************************
Attachment Information:
Count: 1
Files: 88766676.doc
United States Patent and Trademark Office (USPTO)
U.S. Application Serial No. 88766676
Mark: QUAD-MASS
Correspondence Address:
JEFFREY STURMAN
STURMAN LAW LLC
PO BOX 371706 STURMAN LAW LLC
DENVER, CO 80237
Applicant: Advanced Nutritional Supplements
Reference/Docket No. N/A
Correspondence Email Address:
EXAMINING ATTORNEY’S APPEAL BRIEF
I. INTRODUCTION
The applicant, Advanced Nutritional Supplements, (hereinafter “Applicant), has appealed the
final refusal to register the proposed mark, QUAD-MASS, under Trademark Act Section 2(e)(1), 15 U.S.C.
§1052(e)(1), for use in connection with “dietary and nutritional supplements” in International Class 005,
because the proposed mark is merely descriptive of a purpose and function of the identified goods.
II. STATEMENT OF THE FACTS
On January 24, 2020, applicant applied for registration on the Principal Register for the
proposed standard character mark, QUAD-MASS, for “dietary and nutritional supplements” in
International Class 005.
In the Office action dated April 13, 2020, the Trademark Examining Attorney refused registration
on the Principal Register under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1) on the grounds that
the applicant’s mark is merely descriptive of the goods identified in the application.
On October 10, 2020, applicant contested the grounds for refusal and asserted therein that its
mark is not merely descriptive of its goods. After careful consideration of applicant’s response, the
Trademark Examining Attorney determined that applicant’s arguments were not persuasive. The refusal
of registration under Trademark Act Section 2(e)(1) was maintained and made final on October 23, 2020.
On March 29, 2021, applicant filed a Notice of Appeal to the Trademark Trial and Appeal Board,
and applicant filed an appeal brief on May 30, 2021.
For the reasons set forth below, the Trademark Examining Attorney respectfully requests that
the Trademark Trial and Appeal Board affirm the refusal to register the proposed mark under Trademark
Act Section 2(e)(1), 15 U.S.C. §1052(e)(1).
III. ISSUE ON APPEAL
The sole issue on appeal is whether the proposed mark QUAD-MASS is merely descriptive of a
characteristic, function, feature, purpose or use of “dietary and nutritional supplements” in
International Class 005, under Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1).
IV. ARGUMENT
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function,
feature, purpose, or use of an applicant’s goods. See, e.g., In re TriVita, Inc., 783 F.3d 872, 874, 114
USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71
USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420,
1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
Applicant has applied to register the mark QUAD-MASS for “dietary and nutritional
supplements.” An examination of the definitional evidence of record, internet evidence showing
common usage of the terms in the fitness and health industry, and applicant’s own specimens
demonstrates that the mark is merely a combination of two descriptive terms that are descriptive of
applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in relation to the
goods.
A. Under Section 2(e)(1) of the Trademark Act, Applicant’s Mark is Merely Descriptive of the Goods
Determining the descriptiveness of a mark is done in relation to an applicant’s goods, the
context in which the mark is being used, and the possible significance the mark would have to the
average purchaser because of the manner of its use or intended use. See In re The Chamber of
Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing In re Bayer
Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). Descriptiveness of a
mark is not considered in the abstract. In re Bayer Aktiengesellschaft, 488 F.3d at 963-64, 82 USPQ2d at
1831.
“Whether consumers could guess what the product is from consideration of the mark alone is
not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). The question is not whether
someone presented only with the mark could guess what the goods are, but “whether someone who
knows what the goods and[/or] services are will understand the mark to convey information about
them.” DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753,
1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)); In re
Mueller Sports. Med., Inc., 126 USPQ2d 1584, 1587 (TTAB 2018).
In this case, the wording “QUAD-MASS” is merely descriptive of applicant’s “dietary and
nutritional supplements,” because it consists of a combination of two descriptive terms that are
descriptive of applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in
relation to the goods.
Generally, if the individual components of a mark retain their descriptive meaning in relation to
the goods, the combination results in a composite mark that is itself descriptive and not registrable. In
re Petroglyph Games, Inc., 91 USPQ2d 1332, 1341 (TTAB 2009) (holding BATTLECAM merely descriptive
of computer game software with a feature that involve battles and provides the player with the option
to utilize various views of the battlefield); In re Cox Enters., 82 USPQ2d 1040, 1043 (TTAB 2007) (holding
THEATL merely descriptive of publications featuring news and information about Atlanta where THEATL
was the equivalent of the nickname THE ATL for the city of Atlanta); In re Tower Tech, Inc., 64 USPQ2d
1314, 1317-18 (TTAB 2002) (holding SMARTTOWER merely descriptive of highly automated cooling
towers); In re Sun Microsystems, Inc., 59 USPQ2d 1084, 1085 (TTAB 2001) (holding AGENTBEANS merely
descriptive of computer software for use in developing and deploying application programs on a global
computer network).
Only where the combination of descriptive terms creates a unitary mark with a unique,
incongruous, or otherwise nondescriptive meaning in relation to the goods is the combined mark
registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re
Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, both the individual components and the composite result are descriptive of
applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in relation to the
goods. Specifically, the word “QUAD” is commonly used to mean “quadriceps,” which is the “large
front-part extensor muscle at the front of the thigh.”1 The evidence from various third-party websites
show that the word “QUAD” is commonly used to refer to the quadriceps muscle in the context of
supplements, nutrition, fitness, and exercise.2 For example, the evidence from Amazon.com shows
nutritional supplements which are marketed towards consumers to “build big powerful legs with
chiseled quads.”3 The evidence demonstrates that consumers encountering the word “QUAD” in the
context of nutritional supplements and fitness would immediately understand that “QUAD” relates to
quadriceps. Thus, this wording is merely descriptive of applicant’s goods.
Further, the word “MASS” is defined as “the physical volume or bulk of a solid body.”4 The
evidence from various third-parties shows that the word “MASS” is commonly used to describe the
increase of muscle mass or bulk of one’s body.5 For example, the evidence consists of articles titled
“Best Bodybuilding Supplements for Building Mass” and “How to Supplement: Tips for Bulking and
Gaining Mass” and these articles discuss how dietary and nutritional supplements are consumed as part
of an exercise regimen to build body size and mass.6 The evidence demonstrates that consumers
1 See Office action dated April 13, 2020 at pages 2, 7-12. 2 See Office action dated October 23, 2020 at pages 3, 6-34. 3 See Office action dated October 23, 2020 at page 6. 4 See Office action dated April 13, 2020 at pages 2, 4-6. 5 See Office action dated October 23, 2020 at pages 35-60. 6 See Office action dated October 23, 2020 at pages 35-43.
encountering the word “MASS” in the context of nutritional supplements and fitness would immediately
understand that the supplements are intended for increasing muscle size and bulk. Thus, this wording is
merely descriptive of applicant’s goods.
Together, the wording “QUAD-MASS” means the physical volume or bulk of one’s quadriceps or
extensor muscle at the front of the thigh. The composite result of the two individual descriptive terms
“QUAD” and “MASS” is merely descriptive of applicant’s goods, because this wording is commonly used
in the health and fitness industry to describe the bulk of one’s quadriceps muscle. The evidence from
various third parties demonstrate that the consumers are accustomed to seeing the combination of the
wording “QUAD MASS” as being used to describe the size of quadriceps muscles in the fitness industry.7
Specifically, the evidence shows that the combined wording “QUAD MASS” routinely appears in articles
and internet media in which weightlifters and fitness enthusiasts discuss muscle bulk with relation to
exercise and nutrition.8 Consumers encountering this wording for applicant’s supplements would
immediately understand that the goods are used for increasing the physical volume or bulk of one’s
quadriceps muscles. The fact that the mark is a compound word separated by a hyphen does not
diminish the descriptiveness of the mark, because the combination does not create a unitary mark with
a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods. Moreover, adding
punctuation marks to a descriptive term will not ordinarily change the term into a non-descriptive one.
In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1955 (TTAB 2018); see DuoProSS Meditech Corp. v.
Inviro Med. Devices, Ltd., 695 F.3d 1247, 1253-54, 103 USPQ2d 1753, 1757-58 (Fed. Cir. 2012).
In fact, the evidence from AdvancedSupps.com and applicant’s Facebook page show that users
will “experience lean muscle gains” and that the goods will “increase muscle mass.”9 The pages also
7 See Office action dated October 23, 2020 at pages 61-87. 8 See Office action dated October 23, 2020 at pages 67, 74, 78, 80, 82, and 84. 9 See Office action dated October 23, 2020 at pages 88-94.
state that “QUAD-MASS is now available to help you pack on those lbs of mass and strength.”10 This
evidence demonstrates that consumers encountering the wording “QUAD-MASS” for applicant’s
nutritional supplements will immediately understand that applicant’s goods are used for increasing the
size and volume of muscles, including muscles in the nature of quadriceps.
B. Dictionary Definitions Demonstrate that Applicant’s Applied-for Mark is Merely Descriptive
Applicant argues that the applied-for mark is suggestive of the goods, because the terms
“QUAD” and “MASS” have numerous definitions which “creates a myriad of connotations” and “there is
no record [of] any dictionary definition for the term ‘quad-mass.’”11 It argues that “the Examining
Attorney has selected their preferred definition of the terms quad and mass” and that the word “QUAD”
has various meanings such as “quadrangle” and “quadruple,” while the term “MASS” can mean “public
celebration.”12 Thus, it argues, consumers are “presented with an incalculable number of ways to
interpret the trademark.”13
As a general matter, descriptiveness is considered in relation to the relevant goods. DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir.
2012). Descriptiveness of a mark is not considered in the abstract. In re Bayer Aktiengesellschaft, 488
F.3d at 963-64, 82 USPQ2d at 1831. “That a term may have other meanings in different contexts is not
controlling.” Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *5 (TTAB 2019) (citing In re
10 Id. 11 See Applicant’s brief dated March 30, 2021 at pages 8, 10. 12 See Applicant’s brief dated March 30, 2021 at page 11. 13 See Applicant’s brief dated March 30, 2021 at page 8.
Canine Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1598 (TTAB 2018)). “It is well settled that so long as
any one of the meanings of a term is descriptive, the term may be considered to be merely descriptive.”
In re Mueller Sports Med., Inc., 126 USPQ2d 1584, 1590 (TTAB 2018) (quoting In re Chopper Indus., 222
USPQ 258, 259 (TTAB 1984)).
In this case, the provided dictionary evidence and internet webpages clearly establish that the
word “QUAD” is widely recognized in the health, fitness, and supplement industry as referring to the
quadriceps muscle and that the word “MASS” is similarly recognized as meaning the muscle size and
bulk of one’s body.14 The fact that the words “QUAD” and “MASS” may have other definitions in
different contexts is not controlling, because consumers encountering the terms “QUAD” and “MASS”
are unlikely to perceive these words to mean “quadruple” or “public celebration” in relation to the
supplements, when these terms have such recognized meanings with respect to these goods.
Further, the fact that the wording “QUAD-MASS” is not found in the dictionary is not controlling
on the question of registrability. In re Hikari Sales USA, Inc., 2019 USPQ2d 111514, at *8 (TTAB 2019)
(citing In re ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1603 (TTAB 2014); In re Dairimetics, Ltd., 169
USPQ 572, 573 (TTAB 1971)); see In re Gould Paper Corp., 834 F.2d 1017, 1018, 5 USPQ2d 1110, 1111-12
(Fed. Cir. 1987). As previously discussed, if the individual components of a mark retain their descriptive
meaning in relation to the goods, the combination results in a composite mark that is itself descriptive
and not registrable. Here, the individual terms “QUAD” and “MASS” unquestionably retain their
descriptive meaning in relation to the goods. Thus, the combination of these terms results in a
composite mark that is itself descriptive. Moreover, applicant has not argued nor provided any evidence
to demonstrate that this combination of terms creates a unitary mark with a unique, incongruous, or
otherwise nondescriptive meaning in relation to the goods.
14 See Office action dated April 13, 2020 at pages 4-12 and Office action dated October 23, 2020 at pages 6-94.
Applicant argues that “the Examining Attorney seems to recognize their own doubts regarding
the lack of descriptive connotation of Applicant’s trademark in connection with the applied for goods”
because of the statement that Applicant’s specimen “suggests that the goods are used for increasing
muscle size” in the Office action dated April 13, 2020.15 This argument presents the Examining
Attorney’s statement out of context. In the Office action dated April 13, 2020, the Trademark Examining
Attorney stated that “applicant’s specimen shows the wording ‘EXTREME MUSCLE’ on the good’s
packaging, which suggests that the goods are used for increasing muscle size.”16 This statement was
made in reference to the wording “Extreme Muscle,” which appears in applicant’s specimen, and not
with respect to the applied-for mark, QUAD-MASS. The fact that wording on applicant’s packaging is
suggestive of a purpose and function of applicant’s goods does not equate to the wording QUAD-MASS
also being suggestive.
Applicant also argues that the applied-for mark is suggestive, because it “conveys a possible end
result from the use of applicant’s goods.”17 First, a mark is descriptive if it describes a purpose or use of
the goods. Here, the purpose of the goods are for increasing muscle mass, which is the end result of the
goods. Further, even though applicant repeatedly asserts that there are “an incalculable number of ways
to interpret the trademark,” its statement that the applied-for mark “conveys a possible end result”
relies on the descriptive definitions of “QUAD” and “MASS,” namely, that they describe the size and bulk
of a muscle and not applicant’s suggested definitions of “quadruple” and “celebration.” Thus, even
applicant’s preferred interpretation of the applied-for mark relies on the descriptive definitions.
C. Evidence from Various Third-Parties Demonstrate that Applicant’s Applied-for Mark is Merely Descriptive
15 See Applicant’s brief dated March 30, 2021 at page 11. 16 See Office action dated April 13, 2020 at page 2. 17 See Applicant’s brief dated March 30, 2021 at page 8.
Applicant argues that the probative value of the internet evidence is limited, citing TV Azteva
S.A.B de C.V. v. Martin (TTAB 2018) and Safer Inc. v. OMS Investments Inc. (TTAB 2010).18 It argues that
“documents obtained through the Internet may not be used to demonstrate the truth of what has been
printed” and that “there may be more limitations placed upon the probative value of webpage evidence,
than traditional printed publications.”19 This is a mischaracterization of the Board’s findings in the cited
decisions.
In discussing the “truth of what has been printed,” the Board in TV Azteva S.A.B de C.V. v. Martin
and Safer Inc. v. OMS Investments Inc. made a determination regarding facts found within submitted
evidence for a Section 2(d) refusal in an opposition proceeding. This is not the issue here. The issue here
is not whether the information found within the evidence is “true” or valid. In fact, the Board in TV
Azteva S.A.B de C.V. v. Martin and Safer Inc. v. OMS Investments Inc. states that “if a document obtained
from the Internet identifies its date of publication or date that it was accessed and printed, and its
source ( e.g., the URL), it may be admitted into evidence pursuant to a notice of reliance in the same
manner as a printed publication in general circulation” and that “by this change, the Board is expanding
the types of documents that may be introduced by notice of reliance to include not only printed
publications in general circulation, but also documents such as websites, advertising, business
publications, annual reports, studies or reports prepared for or by a party or non-party, if, and only if,
they can be obtained through the Internet as publicly available documents.”20
As a general matter, websites and webpages are generally a competent source for determining
how the public perceives the mark in connection with applicant’s goods. See In re N.C. Lottery, 866 F.3d
1363, 1367-68, 123 USPQ2d 1707, 1709-10 (Fed. Cir. 2017); In re Nett Designs, Inc., 236 F.3d 1339, 1341,
18 See Applicant’s brief dated March 30, 2021 at page 19; TV Azteca, S.A.B. de C.V. v. Martin, 128 USPQ2d 1786,
1790-91 (TTAB 2018); Safer Inc. v. OMS Investments Inc., 94 USPQ2d 1031, 1039 (TTAB 2010). 19 Id. 20 Id.
57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (citing In re Bed & Breakfast Registry, 791 F.2d 157, 160, 229
USPQ 818, 819 (Fed. Cir. 1986)).
For purposes of evaluating a trademark, material obtained from the Internet is generally
accepted as competent evidence. See In re Bayer Aktiengesellschaft, 488 F.3d 960, 966, 82 USPQ2d
1828, 1833 (Fed. Cir. 2007); In re Reed Elsevier Props., Inc., 482 F.3d 1376, 1380, 82 USPQ2d 1378, 1381
(Fed. Cir. 2007).
Applicant argues that the Trademark Examining Attorney’s evidence has little probative value.21
However, the referenced internet evidence from various third parties demonstrates how the public
perceives the descriptive wording in the applied-for mark in connection with applicant’s goods for the
reasons below:
1. Amazon Listing for Mega Muscle 3 (https://www.amazon.com/Vimulti-BUILDER-Muscles-BUILDER-SUPPLEMENT/dp/B01MU4IBLI)22
Applicant argues that this evidence “does not show any use of the term ‘quadricep’” and that
“the term ‘quad’ is used in reference to a potential outcome through the use of the product, not a
feature, characteristic or quality of the product.” It also argues that there is “no evidence regarding the
listing ranking or consumer viewership.”
Although applicant is accurate in stating that the evidence does not use the term “quadricep,”
this is not the purpose of the evidence. The evidence demonstrates use of the word “quad”, which is the
relevant portion of applicant’s applied-for mark. This evidence demonstrates that consumers are
accustomed to seeing the word “quad” used to describe a purpose of nutritional supplements.
21 See Applicant’s brief dated March 30, 2021 at page 12. 22 See Office action dated October 23, 2020 at page 6.
Specifically, the evidence shows a third-party seller of nutritional supplements marketing their goods for
use in building bigger leg muscles and quads. Although the wording is not used to describe “a feature,
characteristic or quality” of the goods, it is used to describe the purpose and use of the supplements.
Further, it is not necessary to show the listing ranking or consumer viewership of the webpages.
For purposes of evaluating a trademark, material obtained from the Internet is generally accepted as
competent evidence. See In re Bayer Aktiengesellschaft, 488 F.3d 960, 966, 82 USPQ2d 1828, 1833 (Fed.
Cir. 2007); In re Reed Elsevier Props., Inc., 482 F.3d 1376, 1380, 82 USPQ2d 1378, 1381 (Fed. Cir. 2007).
2. 5bestsupplements.com – “How to get bigger leg muscles” - (https://5bestsupplements.com/bigger-leg-muscles/)23
Applicant argues that this article does not have the word “QUAD” and that the article’s only
reference to quadriceps is exercise. Even though the word “QUAD” may not appear in the article, the
word “quadriceps” does. As previously discussed, the word “QUAD” commonly refers to the quadriceps
muscle in the field of health and fitness. This evidence demonstrates that the word “quadriceps” (and in
turn, “QUAD”) is commonly understood in the health and fitness field as referring to a leg muscle. The
evidence further shows that supplements, such as the dietary and nutritional supplements produced by
applicant, are commonly used in fitness regimens to develop quadriceps or “quad” muscles.
3. Frontiers Science News – “Bedtime Protein for Bigger Gains? Here’s the Scoop” - (https://blog.frontiersin.org/2019/03/07/bedtime-protein-for-bigger-gains-heres-the-scoop/)24
Applicant argues that this “article contains a single use of the term ‘quad,’ specifically ‘bigger
quads in relation to ‘pre-sleep protein intake’” and that this “deals with a potential outcome, not a
23 See Office action dated October 23, 2020 at pages 7-12. 24 See Office action dated October 23, 2020 at pages 13-16.
characteristic of the goods themselves.” Even though the wording “QUAD” only appears once in this
article, the evidence clearly demonstrates that this wording is commonly used to refer to the quadriceps
muscle in relation to nutritional and dietary supplements in the health and fitness industry. Consumers
encountering the word “QUAD” in this article undoubtedly understand that it means the quadriceps
muscle. Although the word may not describe a characteristic of the goods themselves, the evidence
directly shows that nutritional and dietary supplements are used for the purpose of increasing the size
of one’s quadriceps muscle. Thus, this evidence shows that the wording “QUAD” is merely descriptive of
a feature and use of applicant’s goods.
4. Health.com – “Does Plant Protein Build Muscle as Well as Meat?” (https://www.health.com/nutrition/vegetarian-protein-animal-protein-build-muscle)25
Applicant argues that does not contain the use of the word “quad” and “does not evidence any
possible connection between the terms ‘quad’ and ‘quadriceps.’” Even though the word “QUAD” may
not appear in the article, the word “quadriceps” does. As previously discussed, the word “QUAD”
commonly refers to the quadriceps muscle in the field of health and fitness. This evidence demonstrates
that the word “quadriceps” (and in turn, “QUAD”) is commonly understood in the health and fitness
field as referring to a leg muscle and is merely descriptive of a function of nutritional and dietary
supplements. Specifically, it shows that there is a correlation between protein intake and the muscle
mass and strength of participants’ quadriceps.
5. Men’s Journal – “You’re Not Eating Nearly Enough Protein” (https://www.mensjournal.com/food-drink/youre-not-eating-nearly-enough-protein/)26
25 See Office action dated October 23, 2020 at pages 17-20. 26 See Office action dated October 23, 2020 at pages 21-31.
Applicant argues that although the word “quad” appears three times in this article, this wording
“can also be perceived to reference other relevant meanings.” As previously discussed, descriptiveness
is considered in relation to the relevant goods. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd.,
695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012). Descriptiveness of a mark is not
considered in the abstract. In re Bayer Aktiengesellschaft, 488 F.3d at 963-64, 82 USPQ2d at 1831. “That
a term may have other meanings in different contexts is not controlling.” Robinson v. Hot Grabba Leaf,
LLC, 2019 USPQ2d 149089, at *5 (TTAB 2019) (citing In re Canine Caviar Pet Foods, Inc., 126 USPQ2d
1590, 1598 (TTAB 2018)). “It is well settled that so long as any one of the meanings of a term is
descriptive, the term may be considered to be merely descriptive.” In re Mueller Sports Med., Inc., 126
USPQ2d 1584, 1590 (TTAB 2018) (quoting In re Chopper Indus., 222 USPQ 258, 259 (TTAB 1984)).
The fact that the wording “QUAD” may have other meanings is not relevant, because
descriptiveness is determined in relation to the goods, which in this case are nutritional supplements.
Consumers encountering the word “QUAD” in this fitness article and for supplements would
immediately understand that the word refers to “quadriceps” and not terms such as “quadruple” or
“quadrangle” as suggested by applicant.
6. PromaxNutrition – “Four Exercises to Building Massive Quads” (https://www.promaxnutrition.com/blogs/news/exercises-build-massive-quads)27
Applicant argues that though the word “quad” is used numerous times “does not change the
fact the other relevant meanings exist.” Again, descriptiveness is considered in relation to the relevant
goods, and not in the abstract. Here, the word “QUAD” is commonly used in the health and fitness field
to refer to the quadriceps muscle. The evidence demonstrates how consumers encountering the word
27 See Office action dated October 23, 2020 at pages 32-34.
“QUAD” in this fitness article would immediately understand that the word refers to “quadriceps.”
Applicant also argues that the evidence has no connection with its goods. However, the article clearly
discusses how to build quadriceps muscles, which involves “eating a protein-stacked meal or snack
shortly after exercising to help the body rebuild muscles broken down by exercise.”28 The article also
discusses protein supplements that would be ideal muscle growth.
7. BPN Bare Performance Nutrition – “Best Bodybuilding Supplements for Building Mass” - (https://www.bareperformancenutrition.com/blogs/fitness/best-bodybuilding-supplements-for-building-mass)29
Applicant argues that although the article uses the term “mass” numerous times in reference to
building mass and with supplements, the article “does not provide any information regarding the
meaning of ‘mass.’” Although the article may not explicitly provide a definition for mass, the article
provides ample context such that the average consumer would immediately understand that the word
“mass” is in reference to muscle bulk. For example, the article includes statements such as “Best
Bodybuilding Supplements for Building Mass,” “In order to build mass, you need to go above any beyond
your workout sessions,” and “besides upping your exercise, you need to use supplements for building
mass.” These statements demonstrate that the article provides enough context such that the word
“MASS” is clearly in reference to the size and bulk of muscles. Thus, this evidence shows that the word
“MASS” is commonly used to describe a function and use of nutritional supplements, namely, to
increase muscle bulk.
8. GNC – “How to Supplement Tips for Bulking” (https://www.gnc.com/sports-performance/how-to-supplement-tips-for-bulking.html)30
28 See Office action dated October 23, 2020 at page 34. 29 See Office action dated October 23, 2020 at pages 35-40. 30 See Office action dated October 23, 2020 at pages 41-43.
Applicant argues that “while this article uses the term ‘mass’ a number of times, as with the BPN
article, this article does not use the term ‘mass’ in any manner in which the definition of the term can be
determined.” Again, a brief examination of the article clearly shows sufficient context such that the
average consumer would immediately understand that the word “MASS” refers to muscle mass.
Specifically, the article is titled “How to Supplement: Tips for Bulking Up and Gaining Mass,” and
includes statements such as “if you are trying to get big, all that extra mass as to come from
somewhere” and “You want to make sure all that sustenance is turning into the kind of shredded mass
you want – which is toned muscle.” These statements explain to consumers that the word “MASS”
refers to the increase in muscle and bulk that results from exercise and supplements. Thus, this evidence
demonstrates that the word “MASS” is merely descriptive of a function and use of nutritional
supplements in the field of health and fitness.
9. Muscleandfitness.com – “11 Best Supplements for Building Muscle Mass” (https://www.muscleandfitness.com/supplements/build-muscle/11-best-supplements-building-muscle-mass/)31
Applicant argues that the article is in relation to supplements, but “does not provide any context
regarding the definition of the term ‘mass.’” Contrary to applicant’s argument, the article provides
sufficient context regarding the definition of the term “mass.” First, the article is titled “11 Best
Supplements for Building Mass” with the wording “Get the best bulk-building supplements for cheap.”
The article then discusses how to add muscle bulk by consuming nutritional supplements. This evidence
demonstrates that the word “MASS” is merely descriptive of these nutritional supplements, which are
used to increase muscle bulk.
31 See Office action dated October 23, 2020 at pages 44-52.
10. Mensjournal.com – “11 Best Bodybuilding Supplements to Gain Muscle Mass” (https://www.mensjournal.com/food-drink/11-best-supplements-building-muscle-mass/)32
Applicant argues that “this article is almost verbatim to the Muscle and Fitness article that has
the same title.” Although the article may be similar, it does not have the identical title. Even if it did, it
would not obviate the probative value of showing the descriptiveness of the word “MASS”. In fact, the
evidence demonstrates how consumers are likely to encounter this descriptive wording from multiple
different sources.
11. YouTube – “5 BEST Supplements to Add MUSCLE Mass FASTER!” (https://www.youtube.com/watch?v=1TQt4acn5PI)33
Applicant argues that this evidence “does not provide any context of how the term is defined.”
Although the term “MASS” may have other meanings in different contexts, the screenshot here provides
sufficient context for consumers to understand that the word “MASS” means muscle bulk. The video is
titled “5 BEST Supplements to Add MUSCLE Mass FASTER” and references body-building, fitness,
workouts, and diet. The title itself clearly demonstrates that the word “MASS” means muscle bulk. Thus,
this evidence shows that the word “MASS” is commonly used descriptively in the health and fitness
industry to describe how supplements are used to increase muscle bulk.
12. Bodybuilding.com – “I.C.E. Program #10 – Training the Quadriceps!” (https://www.bodybuilding.com/fun/ice10.htm)34
32 See Office action dated October 23, 2020 at pages 53-59. 33 See Office action dated October 23, 2020 at page 60. 34 See Office action dated October 23, 2020 at pages 61-67.
Applicant argues that “this article contains a single use of the term ‘quad mass’, however, no
context is provided as to the meaning of the term.” Applicant further argues that “the term is not used
in connection with any of the goods.” First, the article provides sufficient evidence to show that the
wording “quad mass” means the muscle bulk of one’s quadriceps muscle. Specifically, the article
discusses training exercises targeted at increasing the size and physique of the quadriceps. Further, this
evidence demonstrates that consumers in the health and fitness field are accustomed to seeing this
wording in relation to exercise and fitness. The webpage includes category links such as “Vitamins and
Health” at the top, as well as “build muscle” and “workouts” on the left. This shows that consumers
routinely see the wording “quad mass” used in a descriptive manner in the field of health and fitness.
13. HomeGymr.com – “Quad Workouts that Actually Work” (https://homegymr.com/quad-workouts/)35
Applicant argues that the wording is used in relation to squat exercises and there is “no context
as to the meaning of the term.” Applicant also argues that the term is not used in connection with any of
its goods. However, this article does provide clear context, as evidenced by the article which directly
states it provides tips for building bigger quadriceps muscles and details exercises that may be used to
build quadriceps bulk. Although the article may not directly discuss supplements, it shows that
consumers regularly encounter this wording in the field of health and fitness. In fact, the top of the
website shows that other sections of the webpage include “Health & Wellness” and “Diet and
Nutrition,” which includes dietary and nutritional supplements. This evidence demonstrates that
consumers regularly encounter the wording “quad mass” in these fields to mean the bulk and size of a
quadriceps muscle.
35 See Office action dated October 23, 2020 at pages 68-74.
14. Muscleandfitness.com – “4 Arnold-Approved Tips to Build Bigger Quads” (https://www.muscleandfitness.com/workouts/leg-exercises/get-leg-arnold/)36
Applicant argues that the wording is used in relation to squat exercises without context to the
meaning of the term. However, the context is undoubtedly clear from the title which tells consumers
that it discusses how to develop larger quadriceps muscles. The article also discusses specific techniques
and exercises for developing quad mass and includes photographs illustrating specific exercises. Thus,
the article makes it clear that the word “QUAD MASS” refers to the bulk and size of the quadriceps
muscle.
Applicant also argues that the term is not used in connection with any of its goods. Although the
article may not directly discuss nutritional supplements, it shows that the wording “QUAD MASS” is
commonly used in the health and fitness field. The webpage also references “nutrition” at the top of the
page and has advertisements for supplements on the right side of the page. Thus, consumers
encountering this wording for applicant’s goods would immediately understand that these goods are
used for increasing the bulk and size of the quadriceps muscle.
15. Mathiasmethod.com – “How to Squat” (https://mathiasmethod.com/how-to-squat/#:~:text=Squat%20Straight%20Down%20and%20Up,your%20knees%20and%20hips%20simultaneously.)37
Applicant argues that the wording is only in the heading and does not provide a definition nor
context to the meaning of the term. However, the context of the article makes clear the definition of the
term. Specifically, the article discusses how to properly squat and “build glute and quad mass and
strength.” Consumers reading this article would immediately understand that the article discusses how
36 See Office action dated October 23, 2020 at pages 75-80. 37 See Office action dated October 23, 2020 at pages 81-83.
to develop leg muscles. Thus, this evidence shows that consumers regularly encountering this wording in
the context of health and exercise.
Applicant also argues that the term is not used in connection with any of its goods. Although the
article may not directly discuss nutritional supplements, it shows that the wording “QUAD MASS” is
commonly used in the health and fitness field. The webpage also references “diet and nutrition” at the
top of the page. Thus, consumers encountering this wording for applicant’s goods would immediately
understand that these goods are used for increasing the bulk and size of the quadriceps muscle.
16. Muscleandfitness.com – “Arnold Schwarzenegger’s Tips for Bigger Quads”
(https://www.muscleandfitness.com/flexonline/training/arnold-schwarzeneggers-tips-bigger-quads/)38
Applicant does not address this piece of evidence in its appeal. However, this evidence
demonstrates that the wording “QUAD MASS” is commonly used in the health and fitness industry as
meaning the bulk and size of the quadriceps muscle. The evidence details exercises that may be used for
increasing muscle size and also features an advertisement for nutritional supplements, because
consumers who seek to increase muscle bulk through exercise are the same consumers who consume
nutritional and dietary supplements. Thus, this evidence shows that the wording “QUAD MASS” is
commonly used to describe muscle size and that consumers in the health and fitness field are familiar
with this term.
17. YouTube – “Reverse Leg Press for Quad Mass” (https://www.youtube.com/watch?v=CWNWT4Y3DXw)39
38 See Office action dated October 23, 2020 at pages 85-86. 39 See Office action dated October 23, 2020 at page 87.
Applicant argues that this evidence “does not provide any context of how the term ‘quad mass’
in its entirety is seen by the general consuming public.” Here, the context is self-evident. The video is
titled “Reverse Leg Press for Quad Mass,” which consumers would immediately understand as being
about a specific exercise used for increasing the size of one’s quadriceps muscle. Further, there is an
image of an individual performing this exercise. Thus, this evidence shows that the word “QUAD MASS”
is commonly used descriptively in the health and fitness industry to describe muscle bulk. In the context
of applicant’s goods, consumers would understand that the goods are used for increasing muscle bulk.
18. Applicant’s Websites (https://advancedsupps.com/brands/united-nutra/2-quad-mass-post-cycle-stack/; https://www.facebook.com/unitednutra)40
Applicant argues that its own website “does not show a single use of the term quadriceps in
connection with applicant’s applied-for goods.” The fact that applicant’s website does not use the word
“quadricep” is not dipositive. First, the screenshots from applicant’s webpages clearly show that
applicant’s goods are used for increasing muscle size and bulk. For example, applicant’s Facebook page
states “QUAD-MASS is now available to help you pack on those lbs of mass and strength.” Even though
the word “quadriceps” may not be present in the specimen, the word “QUAD” is commonly used to
mean “quadriceps,” as evidenced by the previously referenced dictionary and industry evidence.
D. Although Doubt is Resolved in Favor of Applicant, the Evidence of Record Resolves Any Doubt
Applicant argues that any doubt regarding the mark’s descriptiveness should be resolved on
applicant’s behalf. E.g., In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 1571 4 USPQ2d
40 See Office action dated October 23, 2020 at pages 88-94.
1141, 1144 (Fed. Cir. 1987); In re Grand Forest Holdings, Inc., 78 USPQ2d 1152, 1156 (TTAB 2006).
However, in the present case, the evidence of record leaves no doubt that the mark is merely
descriptive.
V. CONCLUSION
Based on the foregoing and evidence of record, the applied-for mark QUAD-MASS is merely
descriptive of a purpose and function of applicant’s “dietary and nutritional supplements.” In the
context of applicant’s goods, the average consumer is likely to find that applicant’s applied-for mark,
“QUAD-MASS” merely describes a purpose and function of these goods, namely, that these supplements
are used for increasing the muscle size of one’s quadriceps muscles.
Accordingly, it is respectfully submitted that the refusal of registration under Section 2(e)(1) of
the Trademark Act be affirmed.
Respectfully submitted,
/Peter Dang/
Trademark Examining Attorney
Law Office 121
(571) 270-1998
