Trademark Refused Registration Because It Was Generic

In In re Nordic Naturals, Inc., No. 13-1492 (Fed. Cir. June 23, 2014), the Federal Circuit affirmed the TTAB's refusal to register CHILDREN'S DHA because the mark was generic.

Nordic Naturals, Inc. ("Nordic") applied to register CHILDREN'S DHA for nutritional supplements containing docosahexaenoic acid ("DHA"), an omega-3 fatty acid that assists in brain development. During prosecution, Nordic disclaimed exclusive use of DHA apart from its use in the mark as a whole and clarified that it was designed for use by children. The examining attorney refused registration because the mark was generic or, alternatively, because it lacked acquired distinctiveness. Nordic appealed to the TTAB, which upheld the examining attorney's findings that the mark was generic and had not acquired distinctiveness. The TTAB found that the relevant goods were "nutritional supplements containing DHA" and that the relevant public for these goods "consists of parents or other adults seeking nutritional supplements containing DHA for children." Slip op. at 2 (citation omitted). The TTAB cited dictionary definitions of "child" and "DHA" and third-party uses of "children's DHA" describing DHA products for children to support its finding that "'children's DHA' merely described an essential fatty acid for children, without indicating source." Id. (citation omitted).

"Here, there is a lack of third-party references recognizing Nordic as the source of 'children's DHA.' Instead, the record contains references that use this phrase in a generic and descriptive manner." Slip op. at 7.

On appeal, the Federal Circuit upheld the TTAB's refusal to register the mark as generic. Because it affirmed the TTAB's decision on genericness, the Court did not address the parties' arguments on acquired distinctiveness. "A mark is generic if the relevant public primarily uses or understands the mark to refer to the category or class of goods in question." Id. at 3. Because Nordic did not challenge the TTAB's characterization of the category of goods and relevant public, the Court adopted the TTAB's definitions of these terms...