{"id":801,"date":"2012-06-30T21:40:40","date_gmt":"2012-06-30T21:40:40","guid":{"rendered":"http:\/\/ncjolt.org\/\/?p=801"},"modified":"2020-10-15T14:28:20","modified_gmt":"2020-10-15T14:28:20","slug":"is-the-label-china-free-on-vitamins-disparaging-to-china","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/is-the-label-china-free-on-vitamins-disparaging-to-china\/","title":{"rendered":"Is the label \u201cChina Free\u201d on vitamins disparaging to China?"},"content":{"rendered":"

Monday, April 9th 2012 by\u00a0Brandy G. Barrett<\/strong>
\nAccording to a recent decision of the Trademark Trial and Appeal Board (TTAB<\/a>) of the U.S. Patent and Trademark Office (PTO<\/a>), the answer is \u201cno.\u201d
\nIn\u00a0In re Prosynthesis Laboratories, Inc.<\/em><\/a>, decided on March 23, 2012,\u00a0Prosynthesis Laboratories<\/a>\u00a0applied for federal trademark protection for the mark CHINA FREE with Design (as pictured), which was printed on the labels of its vitamins and mineral supplements.\u00a0 (Prosynthesis was actually only looking to register the Design portion and disclaimed the exclusive right to use of the words \u201cCHINA FREE.\u201d)
\nAn Examining Attorney at the PTO originally denied registration to Prosynthesis.\u00a0 A Managing Attorney affirmed this decision on the grounds that the mark, \u201cconsists of or comprises\u2026 matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.\u201d\u00a0\u00a0Lanham Act<\/a>\u00a0\u00a7 2(a); 15 U.S.C. \u00a7 1052(a).
\nA traditional two-part test decides whether a mark is disparaging.\u00a0 The first part is to determine the likely meaning of the matter in question.\u00a0 Second, if the likely meaning is determined to refer to identifiable persons, institutions, beliefs, or national symbols, the Examiner (or Board, in this case) should determine whether the matter is considered disparaging to a substantial number of those persons or institutions identified.
\nFirst, the TTAB agreed with Prosynthesis that CHINA FREE is a true fact about its goods, and is especially used to inform a particular segment of the market that is \u201cuncomfortable purchasing supplements for human consumption that contains [sic] elements sourced in China\u2026\u201d after recentoutbreaks of concern<\/a>\u00a0beginning with a major pet food recall in 2007.<\/p>\n

\u201cThe Managing Attorney argued that CHINA FREE \u201cpromotes an unsupported stereotype that all products originating from China are of an inferior quality.\u201d The TTAB disagreed and used text from Prosynthesis\u2019 website to support that Prosynthesis was not claiming that all products from China were adulterated, but rather, it was warning consumers of risks due to alleged serious problems in Chinese manufacturing.\u201d<\/p><\/blockquote>\n

The second portion of the analysis, however, proved to be much more difficult.\u00a0 The TTAB noted:
\n[a]t first glance, this would appear to be a simple factual statement merely describing a characteristic of the identified goods,\u00a0i.e.<\/em>, where they were\u00a0not\u00a0<\/em>made, not much different from ubiquitous statements of origin, such as \u201cMade in U.S.A.,\u201d or negative statements of content, such as \u201csugar free.\u201d\u00a0 Nonetheless, the managing attorney contends that it is disparaging, because the statement that the applicant\u2019s goods do not contain ingredients from China implies that there is something wrong with ingredients from China; and by extension that China is accordingly to be held in a dim view.
\nProsynthesis argued that while the mark CHINA FREE is not meant to be disparaging to the nation of China, it maintained that there is a legitimate reason to be concerned about the safety of pharmaceuticals imported from China.\u00a0 The TTAB admitted that Prosynthesis\u2019 own website was \u201crather strident, one-sided, and somewhat alarmist.\u201d\u00a0 However, the TTAB held that there was enough documentation to support that Prosynthesis\u2019 use of the mark was not made from animus, but rather from its\u2019 deep-rooted concern about safety.
\nThe Managing Attorney argued that CHINA FREE \u201cpromotes an unsupported stereotype that all products originating from China are of an inferior quality.\u201d\u00a0 The TTAB disagreed and used text from\u00a0 Prosynthesis\u2019website<\/a>\u00a0to support that Prosynthesis was not claiming that\u00a0all<\/strong>\u00a0products from China were adulterated, but rather, it was warning consumers of risks due to alleged serious problems in Chinese manufacturing.\u00a0 Furthermore, the TTAB found that the issue was precisely whether the mark disparages the nation of China itself, not the goods produced there.
\nTo determine if the \u201ctarget group\u201d is disparaged by the mark, other disparagement cases have surveyed members of the group.\u00a0 However, during ex parte examination, the TTAB cannot order or create such a survey.\u00a0 Although the TTAB recognized that the opinion of the Board is no substitute for the \u201ctarget group\u2019s\u201d opinion, the Board found no evidence on the record that should bar Prosynthesis from obtaining a federal trademark registration for CHINA FREE.<\/p>\n","protected":false},"excerpt":{"rendered":"

Monday, April 9th 2012 by\u00a0Brandy G. Barrett According to a recent decision of the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office (PTO), the answer is \u201cno.\u201d In\u00a0In re Prosynthesis Laboratories, Inc., decided on March 23, 2012,\u00a0Prosynthesis Laboratories\u00a0applied for federal trademark protection for the mark CHINA FREE with Design (as …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/801"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=801"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/801\/revisions"}],"predecessor-version":[{"id":7715,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/801\/revisions\/7715"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=801"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=801"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=801"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}