Raised Right Pets, L.P.

THIS OPINION IS NOT A

PRECEDENT OF THE TTAB

Mailed: August 3, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

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Trademark Trial and Appeal Board _____

In re Raised Right Pets, L.P. _____

Serial No. 98709772

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Tedd S. Levine of Law Offices of Tedd S. Levine, LLC, for Raised Right Pets, L.P.

Myriah Habeeb, Managing Attorney, Law Office 113. _____

Before Lebow, Elgin, and Lavache,

Administrative Trademark Judges.

Opinion by Elgin, Administrative Trademark Judge:

Raised Right Pets, L.P. ("Applicant") seeks registration of the mark RAISED RIGHT RR VETERINARY SUPPORT (in standard characters, VETERINARY SUPPORT disclaimed) on the Principal Register for "Cat food; Dog food; Pet food; Edible cat treats; Edible chews for dogs; Edible dog treats; Edible pet treats," in International Class 31.¹

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The Managing Attorney has refused registration of Applicant's mark under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1127, because the specimen and substitute specimens provided in support of Applicant's statement of use do not show the applied-for mark used in commerce in connection with the goods. When the refusal was made final, Applicant requested reconsideration twice, providing additional substitute specimens. After the Managing Attorney denied both requests for reconsideration, Applicant appealed. The appeal is fully briefed.²We have carefully considered all of the evidence and argument properly presented, including any matters we do not specifically discuss below. We reverse the refusal to register.

I. Prosecution History

Applicant initially filed the application based on an allegation of its bona fide intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). After a notice of allowance issued, Applicant filed a statement of use with a specimen in the form of a two-page brochure, which it described as "[s]ales displays where the goods are sold (the "Original Specimen").³ The Managing Attorney refused registration under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1127, on the ground that (1) the specimen does

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not show the mark in the drawing in use in commerce (referring to the images of the goods contained in the specimen); and (2) the specimen appears to be mere advertising and does not properly show the applied-for mark as actually used in commerce.⁴The Managing Attorney advised Applicant that acceptable specimens for goods

include a photograph of (1) the actual goods bearing the mark; (2) an actual container, packaging, tag or label for the goods bearing the mark; or (3) a point-of-sale display showing the mark directly associated with the goods.… A webpage specimen submitted as a display associated with the goods must show the mark in association with a picture or textual description of the goods and include information necessary for ordering the goods.⁵

Applicant submitted a response to the Office Action but failed to include an argument or the referenced substitute specimen,⁶upon which the Managing Attorney issued a Final Office Action on the same grounds.⁷To overcome the refusal, Applicant requested reconsideration and submitted a substitute specimen described as "Copy of website pages for the URL https://www.raisedrightpets.com/veterinary-support" (the

"First Substitute Specimen").⁸ The Managing Attorney found the First Substitute Specimen unacceptable on the ground that it is "advertising material for the goods. In particular, while the mark appears at the top of the website in large size in the center, this webpage fails to

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either (1) show the mark appearing on the goods or (2) provide a means for ordering the goods. While the specimen includes pictures of the goods, those pictures show a different mark."⁹

Applicant again attempted to overcome the refusal by requesting reconsideration and submitting another substitute specimen from the same website described as

"Relevant pages of the website showing use of the Trademark in connection with the goods listed in the application." (the "Second Substitute Specimen").¹⁰The Managing Attorney found the Second Substitute Specimen unacceptable on the same grounds as the first: (1) the goods depicted in the specimen show a different mark; and (2) the website "display" associated with the goods is mere advertising; that is, because consumers must engage in "three additional mouse clicks … [they] cannot actually order the goods from the webpage displaying the mark."¹¹

II. Waived Arguments

Applicant's appeal briefs fail to address the Managing Attorney's argument that the trademark appearing on the packaging for the goods that appear in pictures in the website specimens (RAISED RIGHT RR) does not match the drawing (RAISED

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RIGHT RR VETERINARY SUPPORT). Applicant also does not address whether the Original or First Substitute Specimens are acceptable specimens. If an applicant does not assert an argument in its appeal brief, the argument may be deemed waived by the Board, and we find Applicant has done so here. See, e.g., In re Black Card LLC, No. 90641690, 2023 TTAB LEXIS 478, at *29 (applicant that did not address identification of services issue in its appeal brief waived ability to contest the refusal based on that ground); In re Katch, LLC, No. 86301765, 2019 TTAB LEXIS 154, at *3-4 (applicant who briefed only the refusal under Section 23(c) waived its appeal of refusal under Trademark Act Sections 1, 2, 3 and 45). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1203.02(g) (June 2026) ("If an applicant, in its appeal brief, does not assert an argument made during prosecution, it may be deemed waived by the Board."). Thus, we find that the mark displayed on the product packaging in all the submitted specimens does not match the mark depicted in the mark drawing, and the Original and First Substitute specimens are otherwise unacceptable to show use of the applied-for mark in connection with identified goods.

But that does not answer the question of whether the Second Substitute Specimen is acceptable as a "display associated with the goods." For the reasons set forth below, we find that it is.

III. Applicable Law

Under Section 45 of the Trademark Act, a mark is deemed in use in commerce on goods when, among other things, "it is placed in any manner on the goods or their

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containers or the displays associated therewith ...." 15 U.S.C. § 1127 (emphasis added); see also In re Siny Corp., 920 F.3d 1331, 1335 (Fed. Cir. 2019). The issue is whether Applicant's Second Substitute Specimen qualifies as a display associated with the goods under the Trademark Act.

Whether a specimen serves the function of a display associated with the goods is a question of fact. Siny Corp., 920 F.3d at 1335-36; In re MN Apparel LLC, No. 87876633, 2021 TTAB LEXIS 162, at *14. "Factually, we need to ask whether the purported point-of-sale display provides the potential purchaser with the information normally associated with ordering products of that kind." MN Apparel, 2021 TTAB LEXIS 162, at *14 (quoting In re Anpath Grp., No. 77004809, 2010 TTAB LEXIS 130, at *10).

"The test for an acceptable website-based specimen, just as any other specimen, is simply that it must in some way evince that the mark is 'associated' with the goods and serves as an indicator of source." In re Sones, 590 F.3d 1282, 1288 (Fed. Cir. 2009). To constitute a display associated with the goods, a specimen must show use of the mark directly associated with the goods and such use must be of a point-of-sale nature. Trademark Rule 2.56(b)(1), 37 C.F.R. § 2.56(b)(1); see also Siny Corp., 920 F.3d at 1336 ("In determining whether a specimen qualifies as a display associated with the goods, one important consideration is whether the display is at a point-of- sale location."). To be "of a point-of-sale nature," the use must be "calculated to consummate a sale." In re Yarnell Ice Cream, LLC, No. 86824279, 2019 TTAB LEXIS 208, at *50 (quoting In re U.S. Tsubaki, Inc., No. 85267349, 2014 TTAB LEXIS 88, at

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*21). That is, it "must contain sufficient practical information about the goods and a way to order the goods, so as to put the prospective customer at the point of purchase."

MN Apparel, 2021 TTAB LEXIS 162, at *15.

A specimen that does not put the prospective purchaser at the point of purchase is mere advertising, and "[m]ere advertising is not enough to qualify as such a display." Siny Corp., 920 F.3d at 1336; see also Anpath Grp., 2010 TTAB LEXIS 130, at *5 ("[A] clear 'line of demarcation' has been drawn between mere advertising materials, which have been found unacceptable as specimens showing use of a mark for goods, and point-of-purchase promotional materials which have been found acceptable as a display associated with the goods."). See generally TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 904.04(b) (May 2026) ("Advertising material is generally not acceptable as a specimen for goods."). To establish that a webpage constitutes a "display associated with the goods," the following criteria must be met:

(1) the website contains a picture or textual description of the identified goods;

(2) the website shows the mark in association with the goods; and

(3) the website provides a means for ordering the identified goods. MN Apparel, 2021 TTAB LEXIS 162, at *19 (citing TMEP § 904.03(i)).

IV. Analysis

The key issue in this appeal is whether the Second Substitute Specimen is a

"display associated with the goods" or "mere advertising." The Managing Attorney argues that this specimen is split across five different pages, requiring multiple

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"clicks" to purchase the pet foods products; but only the first page displays the applied-for mark.¹²Applicant counters that, considered together, the website is an acceptable display associated with the goods: the mark appears at the top of the page; the "corresponding contiguous webpages display and describe the goods identified in the application"; and "the adjoining webpages provide a direct purchasing mechanism."¹³

At the outset, we note that the Board is tasked with reviewing the evidence of record and arriving at an independent conclusion based thereon. Thus, we are not bound by the specific arguments made by Applicant or the Managing Attorney. Examining the Second Substitute Specimen, the top of the webpage shows the mark RAISED RIGHT RR VETERINARY SUPPORT in a stylized format along with the menu for "buy a box" and a shopping cart symbol:¹⁴

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Further down the webpage we find explanations and pictures which make clear to the consumer that Applicant's goods are human-grade pet food that is cooked and frozen by Applicant; thawed by the consumers; and then served to the pet:¹⁵

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Applicant explained that the button "choose recipes" may be used by consumers to proceed to purchase the goods.¹⁶This button is not a model of clarity in terms of

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directing consumers to add the pet food items sold under the mark to the shopping cart. But the "buy a box" dropdown tab and the shopping cart, which appear in close association with the mark, fill in the blanks. We infer that the drop-down options lead consumers to a webpage on Applicant's website, as presented in the specimen, from which they can select a box of bagged pre-cooked and frozen pet food to purchase (i.e., the "recipes you'd like to receive of human grade dog food"):¹⁷ Although the packaging shown in the specimen images bears a different mark (RAISED RIGHT RR HUMAN GRADE), the applied-for mark appears prominently at the top of the webpage, in close association with the product images, descriptions, and ordering mechanisms. Viewed as a whole, the specimen demonstrates that the applied-for mark, which leads the consumer through a multistep process to purchase Applicant's pet food goods. December 16, 2025 Request for Reconsideration at TSDR 20-21.

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mark functions as a source identifier for the goods being offered for sale. See Sones,

590 F.3d at 1289 ("The PTO must consider the evidence as a whole to determine if Sones' specimen sufficiently associates his mark with his charity bracelets so as to 'identify and distinguish the goods.'") (quoting BellSouth Corp. v. DataNational Corp.,

60 F.3d 1565, 1569 (Fed. Cir. 1995)). We find that the three-part test for a display associated with the goods as set forth in MN Apparel, 2021 TTAB LEXIS 162, at *19, is satisfied because the Second Substitute Specimen includes:

(1) A picture or textual description of identified goods (images of pet food and descriptions of human-grade pet food that is cooked, frozen, thawed, and served);

(2) The mark shown in association with the goods (mark in upper-center portion of webpage in close proximity to images of the goods); and

(3) A means for ordering the goods (collectively, the "buy a box"

dropdown, shopping cart icon, and "choose recipes" button, leading to an ordering page).

Based on the particular facts of this case, relevant purchasers would perceive that RAISED RIGHT RR VETERINARY SUPPORT as used in the specimen is a mark identifying and distinguishing Applicant's goods, and the use is calculated to consummate a sale of such goods. Accordingly, we find the Second Substitute Specimen acceptable and reverse the refusal to register Applicant's mark based on the adequacy of this specimen.

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V. Decision

The refusal to register Applicant's mark RAISED RIGHT RR VETERINARY SUPPORT in International Class 31 is reversed. Application Serial No. 98709772 will proceed to registration.