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Could a Survey Have Saved This Trademark?

The Court of Appeals for the Federal Circuit (CAFC) has affirmed the TTAB’s ruling that NOPALEA is merely descriptive when used for a dietary supplement that contains Nopal juice. (John Welch blogs about the decision here.) TriVita (the applicant) contended that the ordinary purchaser of its products will not immediately recognize the botanical meaning of the word "nopalea." But that was merely their assertion unsupported by any evidence—for example, a survey?

There are two issues that a survey could address. First is the issue who is a typical customer for this product. As the court stated in its opinion:

TriVita argues that its products are sold through “multi-level direct marketing,” and that consumers purchase and obtain information about its products only directly from TriVita or its affiliates, and thus TriVita can “ensure the Mark is used non-descriptively in conjunction with the goods in question at the point of sale.” However, such non-descriptive use was not established by any factual showing. 1

So a survey could have been used to establish the sophistication and understanding that a TriVita customer would have.

And secondly, do these typical potential customers recognize NOPALEA as a brand name or as a common descriptive term? Survey says…well, there wasn’t a survey.

This is not certain that a survey would have supported TriVita’s assertions or changed the outcome of the initial appeal to the TTAB or ultimately to the CAFC. What does appear certain, however, is that without a survey there was nothing to support TriVita’s assertions and “nopalea” is not going to appear on the Principal Register any time soon.