Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE HUBBARD MILLING COMPANY
Serial No. 581,986
October 9, 1987
L. Paul Burd, Richard O. Bartz and Robert W. Gutenkauf for applicant
Trademark Examining Attorney
Law Office 7
(Lynne Beresford, Managing Attorney)
Before Rice, Simms and Seeherman
Opinion by Simms
Hubbard Milling Company, a Minnesota corporation, has appealed from the final refusal of the Trademark Examining Attorney to register the term MINERAL-LYX on the Supplemental Register for molasses-based dietary feed supplement for livestock animals containing minerals. [FN1] It is the Examining Attorney's position that the term sought to be registered is no more than an apt descriptive name for applicant's goods (a feed lick containing minerals), is therefore incapable of identifying and distinguishing them from similar goods of others, and is barred from registration under Section 23 of the Trademark Act, 15 USC 1091.
The evidence submitted in support of the Examining Attorney's refusal includes a definition of the term "lick" from Webster's Third New International Dictionary, and printouts of third-party registrations which use the phrase "animal feed lick blocks." Among other things, this dictionary defines the noun "lick" as:
3a(1): a place where salt is found on the surface of the earth and wild animals resort to lick it up (2): a salt spring or a salt brook b: an artificial often medicated saline preparation given to sheep and cattle to lick. [FN2]
The Examining Attorney has also referred to two excerpts from the LEXIS-NEXIS computer research database showing usage of the terms "salt licks" and "mineral licks," in the following contexts:
... antelopes, wild hogs, buffaloes and elephants--for salt in their diet and how they go about getting it from salt licks, mineral-laden soil and rocks and from water holes filled with brackish water. (The New York Times, March 8, 1985)
... supplied vaginally to cows, pigs and other domestic animals. The tags could provide an inexpensive and convenient alternative to feed supplements, such as mineral licks and injections of mineral solutions.
Agrophysics has begun marketing in Latin America of a copper-tagged vaginal device for heifers ...
(Chemical Week, August 6, 1980)
The Examining Attorney makes the following persuasive argument, brief, 4-5:
According to the dictionary definitions introduced in the first Office action, the term "lick" may be used to describe "a place where salt is found on the surface of the earth and wild animals resort to lick it up" or, in a domestic situation, "an artificial often medicated saline preparation given to sheep and cattle to lick". Thus it is that the term "salt lick" is frequently used to describe a block or other form of salt for animals to lick.
The applicability of the term "lick" is not restricted, however, solely to salt licks. As shown by the third party registrations made of record and the first Office action, feed may be provided by means of "animal feed lick blocks". Even more significant is the Lexis-Nexis excerpt from Chemical Week which discusses feed supplements in the form of "mineral licks". Thus "licks" may be used to supply not only salt, but also feed or feed supplements in general. If these are mineral supplements, the licks are "mineral licks".
*2 Although admitting descriptiveness of the term of a property or characteristic of its goods, applicant maintains that the term is not a common descriptive or generic name for the goods. It is applicant's position that neither its mark nor the phonetic equivalent of that mark is a common descriptive name for a livestock feed supplement containing only a minor proportion of minerals (calcium, phosphorus, zinc, magnesium, iron and copper) in relation to the dominant ingredient molasses and the other ingredients such as protein, fat, fiber and sugars.
While the product is a source of minerals for livestock animals, it is not a mineral lick as that expression is commonly understood in the trade and by livestock growers, and as used in the Lexis-Nexis excerpts ... To the consumer, "mineral licks" describes a product analogous to a salt lick or salt block composed entirely of or consisting predominantly of nutrient mineral materials.
(Appeal brief, 4, 5)
The Examining Attorney maintains, however, that applicant's goods are still mineral licks, regardless of the relative proportion of the minerals to the other ingredients.
Since applicant's mark MINERAL-LYX is admittedly a misspelling or a phonetic equivalent of the term "mineral licks," and, according to the specimens, applicant's licks provide minerals for livestock, we agree with the Examining Attorney that the term sought to be registered is either a common or apt descriptive name for applicant's goods. We reject applicant's argument that its goods are not "mineral licks" because minerals do not comprise the primary ingredients of its blocks but believe the term aptly describes applicant's goods even though minerals comprise only a part of the lick. On this record, the relevant public is likely to understand applicant's mark as the phonetic equivalent of a genus of goods, namely, a livestock mineral supplement in lick form or a mineral lick. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed.Cir.1986). See also In re Dennison Mfg. Co., 229 RSPQ 143 (TTAB 1986) (GLUE STIC).
Decision: The refusal of registration is affirmed.
R. L. Simms
E. J. Seeherman
Members, Trademark Trial and Appeal Board
FN1. Serial No. 581,986, filed February 10, 1986, claiming use since February 12, 1985. The application was amended to the Supplemental Register on June 3, 1986.
FN2. We also note that in Webster's New World Dictionary (Second College Edition, 1982), of which we take judicial notice, the noun "lick" is defined as "3. short for SALT LICK", and the term "salt lick" is defined as "1. an exposed natural deposit of mineral rock salt where animals come to lick 2. a block of rock salt placed in a pasture for cattle, etc. to lick."