ALTHOUGH HEALTHY HEMP MAY DO MANY THINGS, IT DOES NOT FUNCTION AS A TRADEMARK

In a non-precedential decision in In re French Meadow Organic Bakery LLC, Serial No 86243820 (February 4 2016), the Trademark Trial and Appeal Board (TTAB) held that HEALTHY HEMP was merely descriptive of “bakery goods; breads; tortillas; all of the foregoing containing hemp”, in Class 30 (disclaiming HEMP), and therefore refused to register the mark under Section 2(e) (1) of the Trademark Act.

The TTAB reviewed the mark in its entirety, discerning whether the individual components of the mark – ‘healthy’ and ‘hemp’ – retained their descriptiveness in relation to the goods, or whether the combination required consumers to take an extra mental step to understand the relationship between the mark and the goods.

In reviewing the evidence relied upon by the examining attorney, the TTAB noted that the dictionary definition of ‘healthy’ is, among other things, “conducive to health”; while ‘hemp’ is:

a tall widely cultivated Asian herb . . . that has a tough bast fiber used especially for cordage and that is often separated into a tall loosely branched species (C. sativa) and a low-growing density branched species (C. indica).

The TTAB also considered multiple online search results which revealed the common use of ‘healthy hemp’ to describe the health benefits of hemp-based food products.

The applicant, French Meadow Organic Bakery LLC, conceded that each element of the mark was descriptive, but argued that HEALTHY HEMP as a whole was suggestive because the combination of the two elements created a unique commercial impression with no known meaning. Notably, nowhere in its arguments was there a mention or rebuttal of the evidence asserted by the examining attorney indicating the descriptive use of HEALTHY HEMP.

The TTAB remained unconvinced by the applicant’s arguments and affirmed the examining attorney’s final refusal to register the mark.

“This article first appeared on WTR Daily, part of World Trademark Review, in March 2016. For further information, please go to http://www.worldtrademarkreview.com.”