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The Zest

Trademarking a supplement brand: Class 5, the FDA and health-claim names

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Dietary supplements are Class 5 goods, and the trademark application goes to the USPTO, not the FDA. The FDA doesn't approve supplements before they're sold, and it doesn't approve your brand name. The bigger risk for a supplement name is at the USPTO: a name that states the health benefit tends to get refused as merely descriptive, and a name that promises an ingredient or result the product doesn't deliver can be refused as deceptively misdescriptive or deceptive.

Where supplements sit

The Nice Classification, which the USPTO uses to sort goods and services, puts "dietary supplements for human beings and animals" in Class 5. The same class heading covers pharmaceuticals, medical preparations and "dietetic food and substances adapted for medical or veterinary use." If you also sell a non-medicated body cream or a tea under the brand, those are other classes, each with its own fee.

Two agencies, two different questions

Founders often assume the FDA weighs in on the name. It doesn't work that way.

The FDA's own Q&A page says that under the Dietary Supplement Health and Education Act, the FDA "does not have the authority to approve dietary supplements before they are marketed." It also says the FDA "generally does not approve dietary supplement claims or other labeling before use." The company selling the product is responsible for making sure its labeling isn't misbranded and for having evidence for its claims.

What the FDA does care about is what your product claims to do. A supplement "represented explicitly or implicitly for treatment, prevention, or cure of a specific disease" is treated as a drug, and the FDA says "only a drug can legally make such a claim." A structure or function claim has to carry a disclaimer that the product is not intended to "diagnose, treat, cure, or prevent any disease." The FDA's page doesn't address brand names directly, but it does say the agency considers advertising when it evaluates a product's intended use.

The USPTO asks a different question: can this name function as a trademark for these goods? Its rules let it ask about compliance with a federal law that regulates the product, but "for the sole purpose of determining lawfulness of the commerce recited in the application." That's 37 C.F.R. § 2.69.

Here's where the two overlap in practice. In a 2019 examination guide on cannabis and hemp, the USPTO said marks for "foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful" under the Food, Drug and Cosmetic Act, because those goods can't lawfully be introduced into interstate commerce. That guide is still listed on the USPTO's examination guides page. So the trademark office doesn't review your label, but it won't register a name for goods it considers unlawful to sell.

Why health-benefit names get refused as descriptive

Section 2(e)(1) of the Lanham Act bars registration on the Principal Register of a name that is "merely descriptive" of the goods. The TMEP, the manual USPTO examining attorneys follow, says a mark is merely descriptive if it describes "an ingredient, quality, characteristic, function, feature, purpose, or use" of the goods, or if it "immediately conveys" that information.

Supplement names run straight into this because founders want the name to say what the product does. A name built from the benefit, like a hypothetical DEEP SLEEP for a sleep supplement, is the kind of name that test is aimed at. Compare a suggestive name, which the TMEP describes as one that requires "imagination, thought, or perception" to connect to the product. Suggestive names register. Descriptive ones don't, at least not on the Principal Register without proof of acquired distinctiveness.

Praise words have the same problem. The TMEP treats laudatory terms, ones that attribute quality or excellence, as merely descriptive. Its examples include SNAP SIMPLY SAFER, held merely descriptive for medical needles, syringes and cannulae.

A descriptive name isn't a dead end forever. Under § 2(f), the USPTO may accept five years of "substantially exclusive and continuous use" as prima facie evidence that the name has become distinctive. That's a long wait for a new brand.

Why some get refused as deceptive

The opposite problem is a name that describes something the product isn't. The TMEP's test for a deceptively misdescriptive mark has two parts: the name misdescribes the goods, and consumers are likely to believe it. One example in the manual is THCTEA, held deceptively misdescriptive for tea that doesn't contain THC. Another is ESSENSIA, for wine that didn't contain the rare wine of that name.

If the false description would also matter to a buyer's decision to purchase, the name is deceptive under § 2(a). That's the third prong of the test from In re Budge, which the TMEP lays out. The difference is huge. A deceptively misdescriptive name can sometimes register with proof of acquired distinctiveness or on the Supplemental Register. A deceptive name can't be registered on either register "under any circumstances," and the TMEP says you can't avoid the deceptiveness bar by disclaiming the deceptive word.

Narrowing your description of goods to exclude the ingredient generally doesn't fix a misdescriptive name either. The TMEP's reasoning is that shoppers may not know about the restriction. I covered how this plays out in the article on deceptively misdescriptive marks.

What this means for your supplement brand

For naming, the practical takeaways are:

  • Don't name the benefit. A name that tells the shopper exactly what the capsule does is likely to draw a descriptiveness refusal.
  • Don't name an ingredient you don't use. If an ingredient is in the name, it should be in the bottle.
  • Keep the brand separate from the claim. Put the benefit language on the label, where it can carry the FDA disclaimer, and keep the brand name doing the brand's job.
  • Check the ingredients against lawfulness. If the formula includes something like CBD, the USPTO's position on lawful use may block registration no matter how strong the name is.

The strongest supplement names tend to be invented words or ordinary words used in an unexpected way. I wrote about why in the article on strong and weak names. If you already received a descriptiveness refusal, the article on office action responses explains what happens next.

If you're naming a supplement line and want to know how the search and filing work for Class 5, you can see the packages on the services page, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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