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Deeming "CREATINE-D2T" a Unitary Mark, TTAB Dimisses Opposition Demanding Disclaimer of "CREATINE"

By John L. Welch

In a rather unusual inter partes case, the Board dismissed on summary judgment an opposition to registration of the mark CREATINE-D2T for dietary supplements, rejecting Opposer's assertion that the term CREATINE must be disclaimed. Ultimate Nutrition, Inc. v. Nxcare, Inc., Opposition No. 91176206 (January 4, 2008) [not precedential].Opposer pointed out that it disclaimed the word CREATINE in its own registration for the mark CREATINE SUPREME for dietary supplements, and it asserted that CREATINE is generic.The Board assumed, without deciding, that CREATINE is either generic or merely descriptive for dietary supplements. It observed that descriptive and generic terms in a mark are unregistrable and therefore subject to disclaimer "unless the matter is merged together with distinctive elements of the mark in such a manner that the resulting composite is 'unitary' and can not be divided into separable elements...continue to full post

Full post as published by The TTABlog on January 09, 2008 (boomark / email).