On Oct. 1, the U.S. Patent and Trademark Office issued two trademarks to Scott Hemingway’s client, Omega Alpha Pharmaceuticals. But to obtain them, Hemingway had to do battle before the Trademark Trial and Appeal Board over whether his client’s use of the Greek letters in its name was “deceptive.”
The background to the TTAB’s March 26 decision in In Re Omega Alpha Pharmaceuticals Inc. is as follows. Omega Alpha filed an application with the U.S. Patent and Trademark office to register the Greek letters in its name for a variety of nutritional/herbal supplements.
A trademark examining attorney refused to register the trademarks on the ground that they were “deceptive.” Omega Alpha appealed the decision to the TTAB. The trademark examining attorney’s position on appeal was that the term “Omega as used within the dietary, nutritional and/or herbal supplements industry denotes supplements containing omega fatty acids as a material product.” Because not all of Omega Alpha products contained omega fatty acids, its trademark “misdescribes” its products, the examiner alleged.
Omega Alpha argued that its use of the Greek letters signifying “from the end to the beginning” rather than an association with omega fatty acids.
The TTAB eventually agreed with Omega Alpha in a March 26 unpublished opinion.
“There is no example of the term OMEGA or even OMEGAS used to describe an ingredient of a nutritional supplement. In addition, viewing the marks as a whole we find they do conjure up the meaning ‘from the end to the beginning’ the reverse of the commonly known ALPHA to OMEGA ‘from the beginning to the end’ ” TTAB wrote. “ In view thereof, we find that there is not sufficient evidence to establish that they contain a term that misdescribes the character, quality, function, composition, or use of the goods.”
Hemingway notes that winning the trademarks was not easy, considering the trademark examining attorney pointed to three prior rulings from the TTAB that had drawn similar correlations over the use of the word “omega” with “omega fatty acids.”
“What we had to do was take the trademark office away from the use of ‘omega’ and ‘omega fatty acids’ and let them know that the use of this name didn’t have anything to do with that,” says Hemingway, a partner in Dallas’ Hemingway & Hansen. “And we also had to point out in the record that the trademark examiner had not really supported that conclusion with evidence in this case.”
“It’s a house brand across their entire product line,” Hemmingway says of his client’s intended use of the trademark. “That’s why it was so important to get this trademark.”
Darryl Spruill, the trademark examining attorney in the case, did not return a call for comment.