Access Medical Laboratories, Inc.

OCR transcription for search; preserved printed pages are authoritative

This Opinion is Not a
Precedent of the TTAB

Mailed: June 9, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

In re Access Medical Laboratories, Inc.

Serial No. 97708719

Ellen S. Simpson of Simpson & Simpson PLLC,
for Access Medical Laboratories, Inc.

Daniel Donegan, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.

Before Wellington, Allard, and Stanley,
Administrative Trademark Judges.

Opinion by Stanley, Administrative Trademark Judge:

Access Medical Laboratories, Inc. (“Applicant”) seeks registration on the
Supplemental Register of the proposed standard-character mark FOODANALYZER
for “Diagnostic testing and analysis services for medical diagnostic and treatment

purposes, namely, for food sensitivity testing,” in International Class 44.1

1 Application Serial No. 97708719 was filed on December 8, 2022 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging August 1, 2022 as the date of first use anywhere
and in commerce.

Serial No. 97708719
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Registration of the proposed mark was refused under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that FOODANALYZER is
merely descriptive of the identified services.2 The Examining Attorney further
advised that the proposed mark “appears to be generic in connection with the
identified services” and therefore the Examining Attorney could not recommend that
Applicant amend the application to proceed under Trademark Act Section 2(f), 15
U.S.C. § 1052(f), or on the Supplemental Register.3
After the mere descriptiveness refusal was made final, Applicant filed a notice of
appeal.4 Before filing its appeal brief, Applicant requested remand to the Examining
Attorney so that it could amend the application to the Supplemental Register,5 and
the Board granted that request.6 The Examining Attorney thereafter accepted
Applicant’s amendment to seek registration on the Supplemental Register, which
obviated the previously issued refusal under Trademark Act Section 2(e)(1), and the
Examining Attorney then refused registration on the Supplemental Register under
Sections 23(c) and 45 of the Trademark Act, 15 U.S.C. §§ 1091(c) and 1127, on the
2 September 9, 2023 Non-Final Office Action, TSDR at 2-3; June 13, 2024 Final Office Action,
TSDR at 2-4.
Citations to the prosecution file are to the USPTO’s TRADEMARK STATUS & DOCUMENT
RETRIEVAL (“TSDR”) system in .pdf format. Citations to the appeal record are to TTABVUE,
the Board’s online docketing system.
3 September 9, 2023 Non-Final Office Action, TSDR at 3.
4 1 TTABVUE.
5 4 TTABVUE.
6 5 TTABVUE.

Serial No. 97708719
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ground that FOODANALYZER is generic for the identified services.7 After that
refusal was made final, the appeal resumed.
For the reasons below, we reverse the refusal to register Applicant’s mark on the
Supplemental Register.
I. Genericness
A mark proposed for registration on the Supplemental Register must be capable
of distinguishing the applicant’s goods or services. 15 U.S.C. § 1091(c). “Generic terms
do not so qualify.” In re Emergency Alert Sols. Grp., LLC, No. 86890565, 2017 WL
1684179, at *1 (TTAB 2017). “A generic name--the name of a class of products or
services--is ineligible for federal trademark registration.” In re Uman Diagnostics AB,
No. 88960633, 2023 WL 2039689, at *1 (TTAB 2021) (quoting U.S. Pat. & Trademark
Off. v. Booking.com B.V., 591 U.S. 549, 551 (2020)). “A generic mark, being the
‘ultimate in descriptiveness, cannot acquire distinctiveness,’ and is not entitled to
registration on either the Principal or Supplemental Register under any
circumstances.” Id. (quoting In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 1336 (Fed.
Cir. 2015) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d
987, 989 (Fed. Cir. 1982)).
“A term is generic if it refers to the class or category of goods or services on which
it is used.” Id. (citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1344
(Fed. Cir. 2001) (internal citation omitted)). “To refuse registration based on a
proposed mark being generic, the examining attorney must ‘establish a prima facie
7 March 18, 2025 Non-Final Office Action, TSDR at 2-5.

Serial No. 97708719
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case that the term is generic.’” In re PT Medisafe Techs., 134 F.4th 1368, 1373 (Fed.
Cir. 2025) (quoting TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”)
§ 1209.01(c)(i) (2022)). “Thereafter, the ‘burden shifts to the applicant to come
forward with evidence to rebut the prima facie case.’” Id. (quoting In re Pacer Tech.,
338 F.3d 1348, 1350 (Fed. Cir. 2003)). “Then the Board, in reviewing an examining
attorney’s refusal to register a mark, considers the full record.” Id. The Board
determines registrability “on the totality of the record, by a preponderance of evidence
with due consideration to persuasiveness of argument” on contested issues.8 In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“Determining whether a mark is generic … involves a two-step inquiry: First,
what is the genus of goods or services at issue? Second, is the term sought to be
registered … understood by the relevant public primarily to refer to that genus of
goods or services?” PT Medisafe, 134 F.4th at 1374 (quoting Marvin Ginn, 782 F.2d
at 990). A “registration is properly refused if the word is the generic name of any of
the goods or services for which registration is sought.” In re Cordua Rests., Inc., 823
F.3d 594, 605 (Fed. Cir. 2016) (quotation and quotation marks omitted) (“[T]he term
8 Applicant argues in its brief that “the Examining Attorney has not met the ‘demanding’
burden of proving, by clear evidence, that the primary significance of foodANALYZER to
the relevant public is the generic name of a class of services.” Applicant’s Br., 8 TTABVUE
5) (emphasis added). Applicant repeats this “clear evidence” standard throughout its brief.
See id. at 7, 8, 14, 16. In PT Medisafe, the Federal Circuit clarified that it has “never held
that the examining attorney must find genericness by clear and convincing evidence.” PT
Medisafe, 134 F.4th at 1374 n.4. The court explained that “[a] potentially confusing reference
to ‘clear evidence’ in the TMEP, which we referenced in In re Hotels.com, [L.P., 573 F.3d 1300,
1302 (Fed. Cir. 2009)], has recently been clarified and no longer suggests a clear and
convincing evidence burden ….” Id. We will therefore determine whether Applicant’s
proposed mark is generic based on the preponderance of the evidence.

Serial No. 97708719
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‘pizzeria’ would be generic for restaurant services, even though the public
understands the term to refer to a particular sub-group or type of restaurant rather
than to all restaurants.”). “Whether a mark is generic is a question of fact.” Bullshine
Distillery LLC v. Sazerac Brands, LLC, 130 F.4th 1025, 1030 (Fed. Cir. 2025).
A. What is the Genus of the Services and Who is the Relevant
Purchasing Public?
Because the identification of services in an application defines the scope of rights
conferred by Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), the genericness
inquiry ordinarily “focuses on the description of services set forth in the [application
or] certificate of registration.” Cordua Rests., 823 F.3d at 602 (quoting Magic Wand,
Inc. v. RDB, Inc., 940 F.2d 638, 640 (Fed. Cir. 1991)).
Here, we agree with Applicant and the Examining Attorney that the genus is
coextensive with Applicant’s identification of services: “diagnostic testing and
analysis services for medical diagnostic and treatment purposes, namely, for food
sensitivity testing.”9
Before continuing with the second step in the inquiry, we must identify the
relevant public. See Royal Crown Co. v. Coca‑Cola Co., 892 F.3d 1358, 1367 (Fed. Cir.
2018). The relevant consumer for a genericness determination is the purchasing or
consuming public for the identified services. Magic Wand, 940 F.2d at 641. Because
9 Applicant’s Br., 8 TTABVUE 8 (“Applicant does not dispute that the genus is properly
defined by the identification of services[.]”); Examining Attorney’s Br., 10 TTABVUE 4
(“Applicant’s brief stipulates the genus of services at issue is defined by the identification of
services in the application. … The genus of services at issue comprises ‘Diagnostic testing
and analysis services for medical and treatment purposes, namely, for food sensitivity
testing.’”).

Serial No. 97708719
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the application is for “diagnostic testing and analysis services for medical diagnostic
and treatment purposes, namely, for food sensitivity testing,” the relevant consumers
are ordinary purchasers, users, or providers of such services.10 Royal Crown, 892 F.3d
at 1367 (“[T]he parties do not dispute the Board’s determination of the relevant
consuming public as ‘ordinary consumers who purchase and drink soft drinks, energy
drinks, or sports drinks.’”).
Thus, the ultimate question is whether consumers who buy, use, or provide
diagnostic testing and analysis services for food sensitivity testing understand
FOODANALYZER primarily to refer to a class or category of those services. Loglan
Inst. Inc. v. Logical Language Grp., Inc., 962 F.2d 1038, 1041 (Fed. Cir. 1992).
B. Does the Relevant Public Understand FOODANALYZER to
Primarily Refer to a Class or Category of Diagnostic Testing and
Analysis Services for Food Sensitivity Testing?
Whether a term is generic “turns on whether that term, taken as a whole, signifies
to consumers the class of … services.” Booking.com, 591 U.S. at 557. See also In re
Steelbuilding.com, 415 F.3d 1293, 1297 (Fed. Cir. 2005) (“An inquiry into the public’s
understanding of a mark requires consideration of the mark as a whole.”).
[W]hen a firm wishes to string together two or more generic
terms to create a compound term … courts must determine
whether the combination of generic terms conveys some
distinctive, source-identifying meaning that each term,
individually, lacks. … If the meaning of the whole is no
10 Applicant’s Br., 8 TTABVUE 8 (“[T]he relevant public consists of consumers and healthcare
providers who are in need of blood tests which analyze food sensitivity.”); Examining
Attorney’s Br., 10 TTABVUE 4 (“[B]ecause there are no restrictions or limitations to the
channels of trade or classes of consumers for applicant’s services, the relevant public was
found to comprise ordinary consumers who seek out or use applicant’s services.”).

Serial No. 97708719
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greater than the sum of its parts, then the compound is
itself generic.
Booking.com, 591 U.S. at 567 (Bryer, J., dissenting) (citations omitted).
Evidence regarding the relevant purchasing public’s understanding of a term
“may be obtained from any competent source, such as purchaser testimony, consumer
surveys, listings in dictionaries, trade journals, newspapers, and other publications.”
In re Hikari Sales USA, Inc., No. 86439012, 2019 WL 1453259, at *3 (TTAB 2019)
(quoting In re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 1570 (Fed.
Cir. 1987)).
1. Dictionary Definitions
We begin with dictionary definitions. When a mark is composed of dictionary
words, those definitions generally inform its meaning and connotation. Stratus
Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 996 (Fed. Cir. 2020)
(“The Board relied on dictionary definitions of the terms ‘stratus’ and ‘strata’ to
evaluate similarities in the connotation of each mark.”). The record does not include
any dictionary entry for “foodanalyzer” or “food analyzer.” However, “the presence or
absence of [a term] in dictionaries is not controlling on the question of whether a term
is generic.” Hikari Sales, 2019 WL 1453259, at *10.
The record does include definitions for “food” and “analyzer” separately:
• “Food” is defined as, among other things, “material, especially
carbohydrates, fats, and proteins, that an organism uses for energy, growth,
and maintaining the processes of life”;11 and
11 September 9, 2023 Non-Final Office Action, TSDR at 5 (screenshot from The American
Heritage Dictionary).

Serial No. 97708719
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• “Analyzer” is the noun form of “Analyze,” which is defined as, among other
things, “to examine methodically by separating into parts and studying
their interrelations.”12
We agree with Applicant that the definitions of “food” and “analyzer” do not
directly define Applicant’s services.13 Applicant’s services do not analyze food in the
ordinary sense of that phrase − they do not test food for nutritional content,
contamination, or quality. Rather, they analyze a patient’s immunological response
to food antigens.14 The compound term FOODANALYZER thus creates an ambiguity:
it could refer to analyzing food itself (e.g., for quality or composition), analyzing a
person’s reaction to food (as Applicant’s services do), or analyzing dietary patterns
more broadly. This semantic ambiguity is itself evidence that the compound term
conveys something different from, or at least less precise than, the straightforward
combination of its components. See Booking.com, 591 U.S. at 560 (the relevant
inquiry is whether the combination “yields no additional meaning to consumers
capable of distinguishing the goods or services”). Because FOODANALYZER does not
unambiguously name the specific genus of services at issue, the Examining Attorney’s
burden is not met by dictionary definitions alone.
Applicant contends that because food itself is not analyzed, FOODANALYZER
cannot be generic. We do not find this argument dispositive. From the perspective of
12 Id. at 7 (screenshot from The American Heritage Dictionary). The Examining Attorney also
submitted the definition for “analysis,” defined as, among other things, “the separation of an
intellectual or material whole into its constituent parts for individual study.” June 13, 2024
Final Office Action, TSDR at 26 (screenshot from The American Heritage Dictionary).
13 Applicant’s Br., 8 TTABVUE 10-11.
14 Id. at 10; see also December 8, 2022 Application, TSDR at 19 (Applicant’s specimen).

Serial No. 97708719
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an ordinary consumer, FOODANALYZER in the context of food sensitivity tests
would reasonably be understood to mean a test that analyzes one’s relationship with
or reaction to food, regardless of the precise biological mechanism. Consumers are
unlikely to distinguish between “analyzing food” and “analyzing reactions to food”
when encountering this term in context. As such, we give limited weight to this
distinction. It is one factor that introduces some ambiguity into the public’s
understanding of the term, but it does not by itself preclude a finding of genericness.
Our analysis must focus on the broader record of how the relevant public actually
perceives the term FOODANALYZER as a whole.
We also acknowledge that the proposed mark bears a close relationship to the
identification of services. The identification includes “analysis services” and “food
sensitivity testing,” and the mark combines “food” and “analyzer.” The Examining
Attorney argues this correspondence demonstrates that the mark names the
service.15 However, close descriptive correspondence between a mark and an
identification of services does not automatically establish genericness. Many
descriptive marks closely track the services they describe − that is what makes them
descriptive. The question is not whether FOODANALYZER describes the services (it
plainly does, and Applicant has conceded as much by seeking registration on the
Supplemental Register),16 but whether the relevant public understands it primarily
15 Examining Attorney’s Br., 10 TTABVUE 10.
16 Applicant’s amendment to seek registration of FOODANALYZER on the Supplemental
Register constitutes an admission that the term is not inherently distinctive. See Quaker
State Oil Refining Corp. v. Quaker Oil Corp., 453 F.2d 1296, 1299 (CCPA 1972).

Serial No. 97708719
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as the name of the category of services. See In re 1800Mattress.com IP, LLC, 586 F.3d
1359, 1363-64 (Fed. Cir. 2009) (affirming genericness after examining evidence of
public understanding, not based solely on correspondence between the mark and the
services). The fact that a term is highly descriptive does not make it generic; the
Examining Attorney must still prove that consumers perceive it as a category name
rather than a source identifier (even a weak one). That additional showing has not
been made on this record.
2. Third-Party Evidence
The Examining Attorney relies on several third-party uses of “Food Analyzer” or
similar variants (e.g., “foodAnalyzer,” “FOODANALYZER,” “Food-ANALYZER,” etc.)
to demonstrate that the proposed mark is generic for diagnostic testing and analysis
services for food sensitivity testing. The persuasiveness of this evidence varies.
a. Service Lists
Some third-parties include “Food Analyzer” (or a variant thereof) in a list of
services where other items on the list appear to be generic terms (e.g., “Weight Loss,”
“Hair Loss Panel,” “Semaglutide Panel,” etc.):

Serial No. 97708719
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• pellemedicalspa.com:17
• loseyourselfweightlossandwellness.com:18
17 March 18, 2025 Non-Final Office Action, TSDR at 9-10.
18 Id. at 19-20.

Serial No. 97708719

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4x Cortisol +17-OHP+DHEA- Testing: Cortisol AM, Cortisol Noon, Cortisol Evening, 1

P and DHEA- $1g0

Semagiutide Panel- Testing: CBC, Comprehensive Metabolic Panel, Lipid Panel
Hemoglobin Arc reo, T4 Free, B12 and Fasting insulin- $150

Food Analyzer IgG Sensitivity-

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19 Td. at 33-34.
20 Id. at 47-48.

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Serial No. 97708719

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Weight Loss Basic Semaglt itide Panel Weigl it Loss Complete i ood waren Zer &
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Heavy Metal Panel Panels Extended
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Pricing

GLP/Weight loss Panel $150
CBC, CMP Lipid Panel, Hemoglobin A1C,
TSH, T3 Free, T4 Free, Vitamin B12, Fasting Insulin

Female Hormone panel (Basic) $150
Testosterone Free & Total, Estradiol, Dhea-S,
Cortisol, Progesterone

Male Hormone nanel (Basic) $150

21 September 17, 2025 Subsequent Final Office Action, 6 TTABVUE 49-50.

-138-

Serial No. 97708719
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However, a mere list of services, without more context, does not allow us to
distinguish between descriptive use of the phrase “Food Analyzer” and generic use.
That a provider lists a test by name on a menu of available services does not
necessarily demonstrate that the term is the generic name for a class of services
rather than a shorthand identifier for a particular test offering.
b. Uses Suggesting Source-Identifying Intent
Other third-party uses are less persuasive as evidence of genericness. Some third
parties use phrases like “The Food Analyzer,” “Our Food Analyzer,” or similar
constructions, or present the term in a manner that suggests source-identifying
intent rather than generic use:

Serial No. 97708719
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• Labs on Demand Instagram page:22
• vybranthealthandwellness.com:23
22 March 18, 2025 Non-Final Office Action, TSDR at 31.
23 Id. at 41.

Serial No. 97708719
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• mobilephlebotomyprofessionalsllc.com:24
• regnr8rx.com:25
24 September 17, 2025 Subsequent Final Office Action, 6 TTABVUE 8.
25 Id. at 19.

Serial No. 97708719
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• Eros Medical’s Facebook page:26
• Harmony Health & Wellness Clinic’s Instagram Page:27
26 Id. at 40.
27 Id. at 42.

Serial No. 97708719
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• Bella Vita Health Wellness’ Instagram page:28
• Carvalho Healthcare’s Instagram page:29
Several of these uses employ rhetorical constructions that presuppose the
consumer does not already know what the term means. Vybrant Health and
Wellness, for example, asks “What is the foodANALYZER?” – a question that would
28 Id. at 44.
29 Id. at 46.

Serial No. 97708719
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be unnecessary if the term was already understood generically. Similarly,
promotional constructions such as “FOOD ANALYZER SPECIAL” and descriptive
elaborations like “a cutting-edge food sensitivity test” suggest the providers are
marketing a particular offering, not naming a category.
c. Uses with House Marks or Trademark Symbols
Still other third parties use “Food Analyzer” (or a variant thereof) alongside a
house mark or with a trademark symbol, which further suggests source-identifying
use rather than generic use:
• testology.org:30
30 March 18, 2025 Non-Final Office Action, TSDR at 28.

Serial No. 97708719
- 20 -
• arcpointlabs.com:31
• alllabstoday.com:32
31 September 17, 2025 Subsequent Final Office Action, 6 TTABVUE 10.
32 Id. at 13.

Serial No. 97708719
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The use of a possessive (“Testology’s Food Analyzer”), a registered trademark
symbol (“foodANALYZER®”), and a co-branded construction (“ALSN - allergE+ &
foodANALYZER”) are indicative of intended trademark use, not generic use.
d. Third-party Uses That May Trace to Applicant’s
Branded Test
Many of the third-party uses are in connection with a specific panel size or
configuration (e.g., “286 foods,” “268 antigens,” “283 food sources”).33 We observe that
several of these third-parties describe a test with specifications identical to
Applicant’s own offering − namely, a test evaluating 286 food antigens using nano-
bead technology on 1mL of serum.34 This uniformity of specifications and identical
format of the term “foodANALYZER” suggests that these third-parties may be
offering Applicant’s own test − whether as resellers, laboratory partners, or
authorized providers − rather than independently using “foodANALYZER” as the
generic name for a category of services. This pattern is more consistent with
33 See, e.g., March 18, 2025 Non-Final Office Action, TSDR at 19-20
(loseyourselfweightlossandwellness.com: “286 foods”); September 17, 2025 Subsequent Final
Office Action, 6 TTABVUE 13 (alllabstoday.com: “580 markers”), 40 (Eros Medical’s Facebook
page: “286 Potential Sensitivities”), 42 (Harmony Health & Wellness Clinic’s Instagram Page:
“268 Antigens”), 44 (Bella Vita Health Wellness Instagram page: “268 antigens”), 50
(brandonmedicalcenter.com: “283 food sources”).
34 Compare December 8, 2022 Application, TSDR at 9 (Applicant’s specimen:
“foodANALYZER evaluates 286 food antigens using nanu-bead technology of 1mL of serum”)
with, for example, March 18, 2025 Non-Final Office Action, TSDR at 41
(vybranthealthandwellness.com: “foodANALYZER … measures total IgG antibodies for 286
different food sources … [u]sing nan-bead technology and just 1mL of serum”); September 17,
2025 Subsequent Final Office Action, 6 TTABVUE 8 (mobilephlebotomyprofessionalsllc.com:
“foodANALYZER … [u]tiliz[es] advanced nano-bead technology [and] evaluates 286 food
antigens with only 1mL of serum”).

Serial No. 97708719
- 22 -
downstream use of a brand name than with independent adoption of a generic
category name.
e. Volume and Scope of Third-Party Evidence
The Examining Attorney characterizes the third-party evidence as showing that
“dozens of third-parties” use the FOODANALYZER designation generically.35 We
have carefully reviewed the record and count approximately fifteen distinct third-
party references to “Food Analyzer” or a variant thereof across the Office Actions. Of
these, five appear in service lists without meaningful context; approximately eight
use constructions like “The Food Analyzer,” “Our Food Analyzer,” or other language
suggesting source-identifying intent; and three appear alongside house marks or
trademark symbols. On this record, we do not find the volume or consistency of
evidence sufficient to establish, by a preponderance, that the relevant consuming
public understands FOODANALYZER as the generic name for a category of food
sensitivity testing services. Compare Hikari Sales, 2019 WL 1453259, at *10-12
(finding ALGAE WAFERS generic for “fish food” based on, inter alia, extensive third-
party use in trade publications, dictionaries, and media), with In re GJ & AM, LLC,
No. 86858003, 2021 WL 2374670, at *6-12, 15 (TTAB 2021) (finding
COOKINPELLETS.COM not generic for “[p]rocessed wood fuel in the nature of
pellets for use in barbecue grills” despite third-party usage of “cooking pellets” and
“Cookin Pellets”).
35 September 17, 2025 Subsequent Final Office Action, 6 TTABVUE 6.

Serial No. 97708719
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We also note that the record does not include any industry glossary entries, trade
association publications, or media articles using FOODANALYZER as a category
name (or at all). The absence of such evidence is notable, particularly given the
Examining Attorney’s burden to establish genericness.
3. “Food Analysis” Evidence
The Examining Attorney also relies on third-party uses of the phrase “food
analysis” in blog posts and on competitor websites, describing food sensitivity tests:
• “Food Sensitivity Test” webpage on envizionmedical.com: “Only a blood test
like ours can determine the causative agents that take hours to cause a
response … This customized food analysis cuts out the guess work when
dieting.”36
• “Functional Testing” webpage on well.com: “Age-Well … Improve your
nutritional status to optimize efficiency and resilience of cells and cellular
function by testing the Mediators released when blood is exposed to various
substances … Through a focus on comprehensive food analysis, we
emphasize the importance of nourishing your body with real, wholesome
foods to support its natural healing processes … includes testing kits, blood
draw, analysis, and consultation.”37
• Blog post on casadesante.com: “Food Allergy and Sensitivity Testing (FAST
88 Foods: IgG) by Infinite Allergy Labs Vs Skin Prick Test … The FAST 88
Foods: IgG test provides a broader range of food analysis, while the Skin
Prick Test is more focused on immediate allergic reactions …”38
We recognize that “food analysis” and “food analyzer” share a common root and
that an “analyzer” is, by definition, something that performs “analysis.”39 The terms
are plainly related. However, the relevant question is not whether “food analysis” is
36 September 17, 2025 Subsequent Final Office Action, 6 TTABVUE 21-25 (emphasis added).
37 Id. at 26-31 (emphasis added).
38 Id. at 32-40 (emphasis added).
39 See supra at n.13.

Serial No. 97708719
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a generic phrase for the process involved in food sensitivity testing, but whether
FOODANALYZER − as a compound term − is understood by the relevant public as
the name of a category of services. The Examining Attorney has not demonstrated
that consumers use or understand “food analyzer” and “food analysis”
interchangeably as names for the same class of services. Indeed, the “food analysis”
references in the record describe the analytical process involved in testing (i.e., what
the service does), not the name of a type of test (i.e., what the service is called). A
term that describes the process or methodology of a service is descriptive; a term that
names the service is generic. See Cordua Rests., 823 F.3d at 603 (distinguishing
between terms that describe services and terms that name a genus). That “food
analysis” may describe the process does not establish that FOODANALYZER
generically names the category of services.
4. Applicant’s Own Use
Finally, we consider Applicant’s own use of the proposed mark. An applicant’s own
materials “may be probative, or even, … ‘the most damaging evidence,’ in indicating
how the relevant public perceives a term.” See In re Mecca Grade Growers, LLC, No.
86358219, 2018 WL 1314995, at *11 (TTAB 2018) (quoting In re Gould Paper Corp.,
834 F.2d 1017, 1019 (Fed. Cir. 1987)). Applicant consistently uses its proposed mark
in a stylized manner, often with the phrase “Food Sensitivity, IgG Testing”
underneath, as depicted below:

Serial No. 97708719
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Applicant’s uses of FOODANALYZER are clearly intended to be source
identifying; there are no instances in the record of Applicant using its own proposed
mark generically.
5. The Record as a Whole
The record is mixed. On one side, we have: the absence of any dictionary definition
of FOODANALYZER; the absence of the compound term in industry glossaries, trade
publications, or media articles; the semantic ambiguity of the compound term (which
could refer to analyzing food itself, analyzing reactions to food, or analyzing dietary
patterns); evidence that some third-party uses may refer to Applicant’s own branded
test distributed through partners and resellers; and several third-party uses that
appear source identifying (albeit descriptive), often used alongside house marks,
trademark symbols, or other source identifiers. On the other side, we have a handful
of third-party uses that may identify a type of service being offered − particularly
those appearing in service lists alongside other apparently generic terms. But even
for those uses, the context does not clearly distinguish between descriptive and
generic use. And the total volume of third-party evidence − approximately fifteen
references, some of which describe a test with specifications identical to Applicant's
own offering and using the same formatting (“foodAnalyzer”) − does not establish that
the relevant consuming public understands FOODANALYZER as the generic name
for a class of food sensitivity testing services.
We acknowledge that FOODANALYZER bears a close descriptive relationship to
the identified services and that “food” and “analyzer” individually have descriptive

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significance for those services. But descriptiveness, even high descriptiveness, is not
tantamount to genericness. Applicant has conceded descriptiveness by seeking a
registration on the Supplemental Register. The Examining Attorney must establish
something beyond that, namely that the relevant public perceives FOODANALYZER
primarily as a category name rather than as a source identifier, even a weak one. On
this record, that additional showing has not been made.
We find that the limited record evidence “create[s] doubt about whether
consumers would perceive [FOODANALYZER] as generic, or rather as capable of
indicating source and thus eligible for registration on the Supplemental Register.”
GJ & AM, 2021 WL 2374670, at *15. In GJ & AM, the Board found that
COOKINPELLETS.COM was not proven to be generic even though the term
“Cooking Pellets” was “indisputably generic,” because the record did not clearly
establish that the consuming public understood the composite term as a category
name rather than a source identifier. Id. at 13. We recognize that GJ & AM involved
the addition of a “.com” suffix, which the Supreme Court in Booking.com recognized
can sometimes contribute source-identifying significance. See Booking.com, 591 U.S.
at 560-61. Although FOODANALYZER lacks such a suffix, the principle of GJ & AM
remains applicable: where the record is insufficient to establish with confidence that
consumers perceive a compound term as a generic name − as distinct from a merely
descriptive term capable of indicating source − doubt must be resolved in favor of the
applicant. That principle governs here.

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II. Conclusion
Distinguishing between what is highly descriptive and what is generic is not
always an easy task. Genericness is a fact-intensive determination governed by the
record before us. The Examining Attorney bears the burden of establishing that a
proposed mark is generic, and we must determine with confidence whether the mark
crosses the line into genericness. On balance, we find that the Examining Attorney
has not met that burden. Based on the entirety of the record, we have doubt about
whether FOODANALYZER is perceived by the relevant public as a generic name for
“Diagnostic testing and analysis services for medical diagnostic and treatment
purposes, namely, for food sensitivity testing.” “[D]oubt on the issue of genericness is
resolved in favor of the applicant.” In re DNI Holdings Ltd., No. 76331011, 2005 WL
3492365, at *2 (TTAB 2005). Accordingly, we reverse the refusal to register.
Decision: The refusal to register Applicant’s mark on the Supplemental Register
is reversed.