BPI Sports is arguably one of the most well-known brands in the bodybuilding supplement community. It’s products are sold in every major retailer including behemoths like Bodybuilding.com and GNC.
Sometime in 2015, BPI started to roll out products with the word “Best” and then the product. For example “Best Creatine”, “Best BCAA”, etc. It’s an ambitious stategy that may actaully be serving BPI pretty well, as the brand appears to be doing as good as ever.
However, a recent decision by the USPTO to deny BPI Sports the trademark for “Best Protein” may set a not-so-favorable precedent.
The trademark process in the United States may seem a bit complex due to all the legal jargon that’s often involved, but it’s actaully pretty simple. When you submit a trademark application, it gets assigned to an examiner. That examiner looks at your application and then either approves it or issues what is called an “office action”. An office action is not the same as a refusal, but it’s a way of saying that the examiner feels there are some issues with your application and they’re offering you an opportunity to plead your case.
Although there are plenty of instances of applicants successfully replying to an office action and getting the mark approved, more often than not, if the examiner doesn’t like it, it doesn’t get approved. One could argue that this system is imperfect because it relies too heavily on the opinions of the examiners, but they tend to stick to the law.
They’re not going to refuse your mark because they don’t like how you dot your I’s, don’t worry.
So BPI Sports submitted an application in late 2014 for the trademark “Best Protein” to be used as the name of their new protein supplement. In early 2015, an office action was issued and BPI responded, but in August 2015 the final refusal was issued. The mark was a no-go.
For the record, BPI currently owns the marks for
- Best Casein
- Best Glutamine
- Best CLA
- Best Isolate
- Best Creatine
Why didn’t Protein get passed? Well, the USPTO claims it’s because the mark is “merely descriptive of nutrition supplements”.
You see, one of the biggest factors with a trademark is whether the marke can be used as a general description for the product. You can’t name your product something that can easily just be used to describe it.
It’s important to understand that, even though BPI didn’t get the mark, they’re still free to use it on their products. You don’t have to trademark the name of your product, it’s just a way of protecting yourself from competitors that may want to immitate your product and steal your name. But since the USPTO doesn’t want anyone to have that trademark, it doesn’t really matter. BPI will continue to sell Best Protein regardless.
It does beg the question though whether this will become a trend. Surely BPI has more products in the pipeline that start with the word “Best”, so will those marks pass?