TTABlog Test: Is "PERFORMANCE" Merely Descriptive Of Dietary Supplements?

The USPTO issued a Section 2(e)(1) refusal to register the proposed mark PERFORMANCE, finding it merely descriptive of "Energy bars; energy chews; energy gummy; effervescent tablets for making a dietary supplement drink; supplement for boosting energy; supplement for boosting the body's production of nitric oxide; joint protection supplement; supplement for body fat reduction; powdered creatine; creatine capsules; creatine tablets; nutritional candy." Examining Attorney Andrea B. Cornwell maintained that PERFORMANCE "merely describes a feature or purpose of Applicant's goods, in that its supplements and energy foods are for improving one's athletic performance." Applicant Shaklee argued, inter alia, that the mark is merely suggestive, since it "evokes a range of different products and not merely those identified in the identification of goods." How do you think this came out? In re Shaklee Corporation, Serial No. 87528703 (March 24, 2020) [not precedential] (Opinion