97501419•Litehouse, Inc.
Gesamter Gesetzestext
This Opinion is Not a Precedent of the TTAB Mailed: March 11, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Litehouse, Inc. _____ Serial No. 97501419 _____ Mark W. Hendricksen of Wells St. John P.S., for Litehouse, Inc. Keri-Marie Cantone, Trademark Examining Attorney, Law Office 104, Zachary Cromer, Managing Attorney. _____ Before Lykos, Heasley and English, Administrative Trademark Judges. Opinion by Lykos, Administrative Trademark Judge: On July 13, 2022, Litehouse Inc. (“Applicant”) applied to register the proposed mark VEGGIES IN EVERY BITE (standard characters) on the Principal Register for, as amended, “pasta, macaroni and cheese, pasta sauce, pizza, pizza crust, croutons, frozen meals consisting primarily of pasta or rice” in International Class 30.1 1 Application Serial No. 97501419, filed under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce. Page references to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system in Portable Document Format (“PDF”). References to the briefs on appeal refer to the Board’s TTABVUE docket system.
Serial No. 97501419 - 2 - Applicant appeals the Trademark Examining Attorney’s final refusals to register the proposed mark on grounds that VEGGIES IN EVERY BITE: (1) is merely descriptive of Applicant’s identified goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1); and (2) is so widely used by numerous third parties to convey a message that food is nutritional that it fails to function as a trademark under Sections 1, 2, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, 1127. Both refusals are fully briefed.2 We affirm the mere descriptiveness refusal and do not reach the failure to function refusal. See, e.g., In re SIPCA Holding SA, No. 88488405, 2021 TTAB LEXIS 202, at *12 (Board affirmed refusal to register for failing to provide a definite identification and to respond to information requirements, but declined to reach likelihood of confusion refusal). I. Mere Descriptiveness – Applicable Law In the absence of acquired distinctiveness,3 Section 2(e)(1) of the Trademark Act prohibits registration of a mark on the Principal Register that, when used in connection with an applicant’s goods, is merely descriptive of them. 15 U.S.C. § 1052(e)(1). A term is merely descriptive if it immediately conveys knowledge of an 2 We have given no consideration to the two third-party registrations Applicant attached its reply brief as well as any argument relating to the registrations. See 17 TTABVUE. The record in an application should be complete prior to the filing of an appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). Otherwise, the correct procedure would have been for Applicant, prior to filing its appeal brief, to have filed a separately captioned request for remand, with a showing of good cause, along with printouts of the third-party registrations. See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1207.02 (2025). 3 To be clear, Applicant has not claimed acquired distinctiveness of its proposed mark under Trademark Act Section 2(f).
Serial No. 97501419 - 3 - ingredient, quality, feature, function, or characteristic of the identified goods. In re TriVita, Inc., 783 F.3d 872, 874 (Fed. Cir. 2015); see also In re Chamber of Commerce of the U.S., 675 F.3d 1297, 1300 (Fed. Cir. 2012) (internal citation omitted). By contrast, a mark is suggestive if it “requires imagination, thought, and perception to arrive at the qualities or characteristics of the goods.” In re Gyulay, 820 F.2d 1216, 1218 (Fed. Cir. 1987). When two or more descriptive terms are combined the determination of whether the mark has a merely descriptive significance turns on whether the combination of terms evokes a new and unique commercial impression. See In re Oppedahl & Larson LLP, 373 F.3d 1171, 1174 (Fed. Cir. 2004) (citing In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)) (“[T]he PTO must . . . determine whether the mark as a whole, i.e., the combination of the individual parts, conveys any distinctive source- identifying impression contrary to the descriptiveness of the individual parts.”). If each component retains its descriptive significance in relation to the goods, the combination itself is merely descriptive. See, e.g., In re Calphalon Corp., No. 86356713, 2017 TTAB LEXIS 98, at *29-30 (finding no double entendre about the use of the word sharpen or its phonetic equivalent SHARPIN to describe the function of knife blocks with built-in sharpeners that automatically sharpen knives). 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 mark registrable as suggestive. Compare In re Tennis in the Round Inc., 1978 TTAB LEXIS 44, at *5-6 (TENNIS IN THE ROUND held not merely descriptive for providing
Serial No. 97501419 - 4 - tennis facilities because the association of applicant’s mark with the phrase “theater- in-the-round” created an incongruity since applicant’s tennis facilities are not analogous to those used in a “theater-in-the-round”) with In re Mecca Grade Growers, LLC, No. 86358219, 2018 TTAB LEXIS 64, at *8 (MECHANICALLY FLOOR- MALTED merely descriptive of malt for brewing and distilling and processing of agricultural grain). “A mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the applicant’s goods or services.” Oppedahl & Larson, 373 F.3d at 1173 (citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341 (Fed. Cir. 2001)). It is not necessary that a term describe all of the purposes, functions, characteristics, or features of a product to be considered merely descriptive; it is enough if the term describes one significant function, attribute, or property. Chamber of Commerce, 675 F.3d at 1300. Evidence that a term is merely descriptive to the relevant purchasing public “may be obtained from any competent source, such as dictionaries, newspapers, or surveys,” In re Bayer AG, 488 F.3d 960, 964 (Fed. Cir. 2007), as well as “labels, packages, or in advertising material directed to the goods.” In re Abcor Dev. Corp., 588 F.2d 811, 812 (CCPA 1978). It may also be obtained from websites and publications. In re N.C. Lottery, 866 F.3d 1363, 1367 (Fed. Cir. 2017). II. Analysis Applicant argues that the applied-for mark VEGGIES IN EVERY BITE is suggestive, not merely descriptive, of the identified goods, because it does
Serial No. 97501419 - 5 - NOT directly tell the viewer what the goods are, but instead requires the viewer to exercise imagination, thought or perceptions. The identified goods range from pasta to pizza to frozen meals consisting primarily of pasta or rice and the VEGGIES portion of the mark does not refer to those types of food. The combination of VEGGIES with the remainder of the mark, namely, IN EVERY BITE, the viewer must use his or her imagination, thought or perception to reach a conclusion as to what the goods are or the nature of the goods are [sic]. It requires the consumer use imagination to bridge that gap.4 Applicant’s arguments are not well-taken. The determination of whether a proposed mark is merely descriptive must be made in relation to the goods for which registration is sought, not in the abstract. Bayer, 488 F.3d at 964. This requires consideration of the context in which the putative mark is used or intended to be used in connection with those goods, and the possible significance that it would have to the average purchaser of the goods in the marketplace. Id.; see also Chamber of Commerce, 675 F.3d at 1300. In other words, the question is not whether someone presented only with the proposed mark could guess the goods listed in the identification. Rather, the question is whether someone who knows what the goods are will understand the proposed mark to convey information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254 (Fed. Cir. 2012) (internal citation omitted). Although Applicant’s goods themselves are not vegetables, this does not preclude a finding that Applicant’s proposed mark is merely descriptive. As noted above, it is well established that a proposed mark that refers to an ingredient is merely 4 Applicant’s Supplemental Brief, p. 4; 14 TTABVUE 5.
Serial No. 97501419 - 6 - descriptive. TriVita, Inc., 783 F.3d at 874. The record shows that Applicant’s processed food items are made from vegetables. In response to the Examining Attorney’s information request, Applicant submitted excerpts from its website, www.veggiecraft.com, showing that Applicant’s penne pasta is made from vegetables such as sweet potato, peas, lentils and/or cauliflower.5 Consumers encountering the phrase VEGGIES IN EVERY BITE in connection with Applicant’s “pasta, macaroni and cheese, pasta sauce, pizza, pizza crust, croutons, frozen meals consisting primarily of pasta or rice” will immediately understand that vegetables are a key or significant ingredient of Applicant’s food items. See, e.g., TriVita, 783 F.3d at 876 (“the relevant consumer, knowing that the goods are supplements containing nopal cactus juice, would understand the mark NOPALEA to convey information that the goods contain ingredients from the Nopalea cactus”). Another flaw with Applicant’s contention that its proposed mark is suggestive is that each individual word in the phrase VEGGIES IN EVERY BITE is descriptive, and when combined, each word retains its descriptive significance rather than projecting a separate connotation. “Veggies” is the plural version of “veggie,” a commonly recognized shorthand for “vegetables.6 When used as a noun in the context of food, the word “bite” denotes “morsel” i.e. “the amount of food taken at a bite” or a “small amount of food.”7 The prepositional phrase “in every bite” modifies the noun 5 November 11, 2024, Office Action at TSDR 36-42 (printouts from veggiecraft.com). 6 THE MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com) defines “veggie” as “vegetable.” November 21, 2024 Office Action at TSDR 5. 7 The Board takes judicial notice of the dictionary entry for the word “bite” from the online version of THE MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com accessed on
Serial No. 97501419 - 7 - “veggies” to convey that that each morsel of Applicant’s “pasta, macaroni and cheese, pasta sauce, pizza, pizza crust, croutons, frozen meals consisting primarily of pasta or rice” is composed of vegetables. The combination has no other new, unique or incongruous meaning (such as a double entendre) in relation to the identified goods. No mental leap or multi-stage reasoning is required to understand that vegetables are a key ingredient. We may also look to Applicant’s website and product packaging as evidence of public perception. See In re Promo Ink, No. 76541018, 2006 TTAB LEXIS 138, at *4- 5 (examining attorney may introduce evidence that applicant’s own literature supports descriptiveness of term even though application is based on intent-to-use under Trademark Section 1(b)). Even Applicant itself uses its proposed mark descriptively on its website to tout its penne pasta as gluten-free, high in nutritional value, and a significant source of protein and fiber:8 Say hello to your new favorite pasta! Our 3-ingredient pasta is filled with veggies in every bite, and takes everything that you love about pasta and levels it up a notch. Delicious taste, gluten-free recipe, a good source of protein and fiber, and has 1/3 of your daily recommended veggies per serving. Eating veggies has never been so exciting! (Emphasis added.) Likewise, Applicant’s product packaging for its sweet potato, peas/lentil/zucchini and peas/lentil/cauliflower penne, draws attention to the phrase 3/9/2026). See In re White Jasmine LLC, No. 77115548, 2013 TTAB LEXIS 9, at *20 n.23 (Board may take judicial notice of online dictionaries that exist in printed format or have regular fixed editions). 8 May 20, 2025 Response to Office Action at TSDR 4 (response to information request).
Serial No. 97501419 - 8 - VEGGIES IN EVERY BITE with an arrow to a forkful or “bite” of its penne to differentiate its product from traditional pasta made from flour or wheat:9 An applicant’s own “marketing materials may be … ‘the most damaging’” evidence of mere descriptiveness. In re Berkeley Lights, Inc., No. 88895703, 2022 TTAB LEXIS 382, at *17-18. Our finding is bolstered by evidence that it is not uncommon for competitors in the food industry use the same phrase to advertise that their pasta, mac & cheese, and pizza are also made from or incorporate vegetables. See, e.g., Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1378 (Fed. Cir. 2012) (evidence of 9 May 20, 2025 Response to Office Action at TSDR 5 (response to information request).
Serial No. 97501419 - 9 - descriptiveness may come from “evidence of third parties that use the term … to describe [goods or] services that are similar to those identified in [the] application”).10 We note the following website evidence describing pasta, mac & cheese, and pizza from other food manufacturers as containing “Veggies in Every Bite”: Printouts from Shaws grocery store website (www.shaws.com) advertising for sale in its “shopping cart” Barilla brand Veggie Spaghetti. The product description highlights “Made from puree from real spinach and zucchini, this vegetable pasta promises to add color and nutrition to your plate.” It also describes Barilla Veggie Spaghetti as providing “Wholesome Veggies in Every Bite.”11 Printouts from Kidfresh (www.kidfresh.com) advertising its mac & cheese and pizza as “A Fresh Take On the Foods Kids Love – HIDDEN VEGGIES IN EVERY BITE.”12 A press release November 9, 2017 disseminated via the PR News Wire Association by Bird’s Eye, announcing a new line of pasta “made from 100% vegetables” as “a healthy alternative to your family’s favorite starchy sides. Veggie Made Pasta does not contain wheat or flour, filler or any artificial ingredients – just nutritious veggies in every bite.”13 10 We have not considered outdated articles from 2002 and 2012. Nor have we considered third-party marketplace uses of the phrase in connection with food items not included in Applicant’s identification. 11 May 9, 2023 Office Action at TSDR 8-12. 12 May 9, 2023 Office Action at TSDR 39-40. 13 May 9, 2023 Office Action at TSDR 33. Although newswire press releases generally have limited probative value because we cannot judge the extent of public exposure, they cannot be completely discounted. See In re Cell Therapeutics, Inc., No. 75313795 et. al. 2003 TTAB LEXIS 375, at *10-11 (newswire stories have less probative value than stories appearing in magazines and newspapers; nonetheless, with the advent of personal computers, “it is much more likely that newswire stories will reach the public because they can be picked up and ‘broadcast’ on the Internet”). Here, the Bird’s Eye newswire press release was distributed online via Nosh Food Wire meaning that there has been some current public exposure. See
Serial No. 97501419 - 10 - As this evidence illustrates, the phrase communicates that each forkful or bite of food has more nutrients than traditional pasta, mac & cheese and pizza; is a way to increase vegetable intake, especially for picky eaters such as children; and is a viable option for consumers with dietary restrictions. In sum, no imagination or thought is required to discern that a key ingredient of Applicant’s “pasta, macaroni and cheese, pasta sauce, pizza, pizza crust, croutons, frozen meals consisting primarily of pasta or rice” is vegetables. Applicant’s proposed mark immediately conveys, without conjecture or speculation, an attribute of Applicant’s food items. The evidence not only shows the phrase “Veggies in Every Bite” as a descriptive phrase used by third-parties but also demonstrates that consumers specifically look for pasta, pizza and rice composed of vegetables in lieu of semolina flour or wheat for nutritional value or other health reasons. Competitors in the food industry should be free to use this merely descriptive language when describing their own items to the public in advertising and marketing materials. See In re Styleclick.com Inc., No. 75459912, 2001 TTAB LEXIS 127, at *15 (“The intent of Section 2(e)(1) is to protect the competitive needs of others …”). III. Conclusion Based on the foregoing evidence, the proposed mark VEGGIES IN EVERY BITE, when considered as a whole, immediately conveys that vegetables are a key or significant ingredient of Applicant’s “pasta, macaroni and cheese, pasta sauce, pizza, September 14, 2023 Office Action at TSDR 10-11 (www.nosh.com/food-wire/ accessed on 9/14/2023).
Serial No. 97501419 - 11 - pizza crust, croutons, frozen meals consisting primarily of pasta or rice.” We therefore find Applicant’s proposed mark to be merely descriptive of the identified goods. Decision: The mere descriptiveness refusal under Section 2(e)(1) of the Trademark Act is affirmed. As a result, we need not reach the failure to function refusal under Sections 1, 2, and 45 of the Trademark Act.
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