In re: Trivita, Inc., No. 14-1383 (Fed. Cir. 2015)
Annotate this CaseTriVita filed trademark application Serial No. 77/658,158 to register the mark NOPALEA on the Principal Register for dietary and nutritional supplements “containing, in whole or in substantial part, nopal juice.” The examiner rejected the application under section 2(e)(1) of the Lanham Act as “descriptive of a feature of applicant’s goods on the grounds that applicant’s products contain nopal which is derived from an [ex]tract of the nopalea plant.” The Trademark Trial and Appeal Board and the Federal Circuit affirmed, rejecting an argument that “nopalea plant” is not a term used in the food industry, and that the term is not descriptive because TriVita’s products contain extracts from the Opunti genus of nopal cactus, not the Nopalea genus. Various websites show Nopalea as the name of a genus of cactus used in food and supplements. Some of TriVita’s affiliates explicitly state on their website that TriVita’s products were derived from the Nopalea cactus. Consumers may well assume, as do some of TriVita’s affiliates, that, as a characteristic of nopal juice, TriVita’s goods derive from genus nopalea.
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