Therefore, consumers reasonably would understand that the wording “CHINA FREE” in the proposed mark refers to the disparaged party, i.e. in the People’s Republic of China. A reasonable person of ordinary sensibilities would consider this reference offensive or objectionable because the proposed wording “CHINA FREE” implies that there is something negative about retail goods made in China. Trademark Act Section 2(a), 15 U.S.C. §1052(a); See Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635 (TTAB 1988); In re Anti-Communist World Freedom Congress, Inc., 161 USPQ 304 (TTAB 1969); TMEP §§1203.03, 1203.03(c) and 1203.03(d).

Moreover, and contrary to applicant’s argument that its website and any other information, such as advertising, that is available to the general public is “beyond the purview of the Office and its proper inquiry into the fitness for the registration,” TMEP Section 710.01(b) clearly states that the “examining attorney must check applicant’s own website for information about the goods/services. See In re Promo Ink, 78 USPQ2d 1301, 1303 (TTAB 2006), where the Board rejected applicant’s argument that it was improper for the examining attorney to rely on evidence obtained from applicant’s website when the application was based on intent-to-use and no specimens were yet required. According to the Board, ‘[t]he fact that applicant has filed an intent-to-use application does not limit the examining attorney’s evidentiary options, nor does it shield an applicant from producing evidence that it may have in its possession.’ See also In re Reed Elsevier Properties Inc., 482 F.3d 1376, 82 USPQ2d 1378 (Fed. Cir. 2007).” [emphasis supplied.] Therefore, Internet evidence obtained about applicant’s goods is “admissible as evidence as evidence of information available to the general public, and of the way in which a term is being used by the public.” TMEP Section 710.01(b). (emphasis supplied.)

According to an article from Brand Channel titled “Vitamin Brand Sells Itself as China-Free” dated March 17, 2010, that was attached to the previous Office Action, the following is written about the applicant –

“From lead-tainted toys and poisoned milk products to deadly dog food, the reputation of quality control standards for the “Made in China” brand has taken a severe beating.

Now, one brand is exploiting the brand’s sullied image by making the panic over “China-made” into the pillar of its brand-building strategy; but is it too much?

Opurity vitamin ads are turning up on various blogs across the web. The first I saw was on a right-wing political blog. It probably would not have stood out except that the ad featuring a horrifying image of a factory spewing thick pollution into the sky with the eye-popping copy “Don’t trust your health to China… Warning: Multivitamin companies entrust your health to vitamin ingredients made in China. Do you?…”

Launched in February, vitamin brand Opurity’s overall messaging is not any less dramatic than its ads: “China Free Multivitamin Choice” [sic]. Opurity is based in Virginia and positions itself with an alarming tone, warnings and, frequently, CAPS LOCK. The brand’s ads link to a site that rattles off statistics that implies the danger of Chinese-made drugs is… CHINA! The site hosts a China-Free™ Blog and a section titled “China Quality Problems in the News,” among others.”

The applicant’s website also asserts the following –

How Bad is it that My Multi-Vitamin ingredients are from China?

It depends on what health risks you are willing to take. And on how much you know about how Chinese manufacturing usually operates. And how important it is to save 19 cents a day — because you don’t have to use the cheap from-China ingredients multi-vitamin. You can use opurity.

We believe the primary objective of most Chinese manufacturing operations is keeping price low, not keeping quality high.

The applicant’s website also states the following –

Q: Do you expect the quality of ingredients from China to improve over time?

A: Probably not. The short answer is, “The Tiger Doesn’t Change Its Stripes”. The reason we say that is that the quality problems in China are deep-seated, and often cultural—and cultural items change slowly, if at all.

The applicant’s website also touts that its products are not made in China and that it does not use ingredients made in China due to their lack of quality. See applicant’s website attached to this Final action.

To “disparage” means “to speak slighting[ly] of: run down: depreciate.” In re Squaw Valley Dev. Co., 80 USPQ2d 1264, 1276 (TTAB 2006) (internal punctuation omitted) (quoting Webster’s Third New International Dictionary (unabridged ed. 1993)); see also TMEP §1203.03(c). A mark may be disparaging in two ways:

(1) Matter that is not, in and of itself, disgusting or otherwise unpleasant, may be applied or combined in such a way that it is offensive to the disparaged party. See, e.g., In re Anti-Communist World Freedom Cong., Inc., 161 USPQ 304, 305 (TTAB 1969) (holding design of an “X” superimposed over a hammer and sickle to disparage, and to bring into contempt and disrepute, a national symbol of the U.S.S.R.).; or

(2) Matter may be inherently offensive, and, when directed at a specific individual or entity, may become even more offensive. See, e.g., Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635, 1640 (TTAB 1988) (noting “the offensiveness of [applicant’s mark, depicting a defecating dog,] becomes even more objectionable because it makes a statement about opposer itself”).

In this case, the matter is not in and of itself disgusting or otherwise unpleasant, but rather the manner in which the terms are used by the applicant are offensive to the disparaged party. The applicant is essentially promoting its goods to the detriment of the country of China. Purchasers of the applicant’s goods would make inferences that there is something negative about vitamins and mineral supplements made in China. Applicant’s inference promotes a stereotype that all products originating from China are of an inferior quality. See evidence made of record in the previous office action and new Internet evidence attached to this Final refusal. While recent newsworthy events have highlighted that some Chinese manufacturers do not make quality products, promoting a stereotype that ALL Chinese manufacturers make poor quality goods is simply untrue. To the contrary, many Chinese-manufactured products are high quality. For example, the Buick Lacrosse will be designed in China. See attached article from Fast Company. To group all manufacturers together just because they come from the same country would be unfair and stereotypical. Because applicant’s proposed mark seeks to capitalize on this stereotype, the proposed mark is disparaging, and is thus refused under Section 2(a) of the Trademark Act.

The applicant also refers to third-party registrations to support its argument. However, copies of third-party registrations must be submitted to make them of record. See In re Doufold Inc., 184 USPQ 638 (TTAB 1974); See also Rexall Drug Company v. Manhattan Drug Company, 128 USPQ 114 (CCPA, 1960); Weyerhaeuser Co. V. Katz, 24 USPQ2d 1230 (TTAB 1992).