INTA Bulletin

July 15, 2012 Vol. 67 No. 13 Back to Bulletin Main Page


The Trademark Trial and Appeal Board (TTAB) reversed a disparagement refusal under Section 2(a) of the Lanham Act to register the mark CHINA FREE & Design for “vitamins and mineral supplements.” In reaching its decision, the TTAB determined there was “little or nothing” in the record to show that the People’s Republic of China would find the mark disparaging. In re Prosynthesis Laboratories, Inc., Serial No. 77902555 (T.T.A.B. Mar. 23, 2012) (non-precedential).

The examining attorney took the position that the mark referenced the country of China and that the words CHINA FREE disparaged the people of China because they suggested that the applicant’s products did not contain any Chinese ingredients. The applicant took the position that Section 2(a) was inapplicable because China was not a “person” or “institution” under Section 2(a).

The TTAB, however, said it assumed that China was a “person” or “institution” within the meaning of Section 2(a). Noting that the applicant’s disclaimer of the words CHINA FREE as descriptive did not negate a Section 2(a) prohibition, the Board said the meaning conveyed by the mark was that the relevant goods did not contain any ingredients originating in China.

The Board concluded there was insufficient evidence of record that the People’s Republic of China would view the words CHINA FREE as disparaging when used in connection with nutritional supplements. Further, it found no clear evidence that the applicant’s motivation was to disparage China.

The TTAB laid out a two-part test for disparagement: 
  1. What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services?
  2. If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, [is] that meaning…disparaging to a substantial composite of the referenced group?
The Board found that the expression CHINA FREE was not in and of itself disparaging. Evidence entered by the applicant indicated some consumers’ concern as to the wholesomeness of ingredients in Chinese goods. Therefore, the words CHINA FREE conveyed the idea that the applicant’s goods were free of Chinese ingredients. That fact, coupled with a lack of evidence of record that the People’s Republic of China would view the words CHINA FREE as disparaging, resulted in the TTAB’s decision that the mark was not disparaging within the meaning of Section 2(a).

Noting that the decision was a difficult one and “not entirely free from doubt,” the TTAB stressed that it did not constitute an endorsement or approval of the mark but rather merely recognized that the Lanham Act assumes that a mark should be approved for publication in the absence of appropriate evidence that it is not registrable.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.

© 2012 International Trademark Association