Declarations From a Trademark Applicant's Retailers Did Not Rebut Other, Unbiased Third-party Evidence Showing a Mark Was Generic

In re Nordic Naturals, Inc., __ F.3d ___ (Fed. Cir. June 23, 2014) (REYNA, Wallach, Taranto) (P.T.A.B.) (1 of 5 stars)

Fed. Cir. affirms the Board's refusal to register "CHILDREN'S DHA" for a smaller-size portion of the drug DHA, because there was substantial evidence it was generic. "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." Slip op. at 3. The record was replete with third-party websites, online articles, and book excerpts that referred to "Children's DHA" as the entire category of products, not as a product from a specific source (like the applicant).

The applicant failed to rebut this with evidence of a "mixture of usages," as in In re Merrill Lynch, 828 F.2d 1567 (Fed. Cir. 1987), because "there is a lack of third-party references recognizing Nordic as the source of 'children's DHA.'" Id. at 7. Declarations from Nordic's retailers saying it was the first to use the term were irrelevant because "[t]he declarations were prepared primarily by Nordic, with the declarants providing only personal information," unlike the unsolicited third-party references in Merrill Lynch. Id.