Juice Companies Using Term “Wellness Shot” Receive Cease and Desist Letters

Multiple juice companies have received cease and desist letters for using the term “Wellness Shot” in their marketing and packaging. The letter demands that the companies immediately cease using the term, enter into a written agreement, and pay the “costs for resolution, which generally, if the matter is resolved in a straightforward manner and without lengthy discussions, are less than $5,000.”

The letter comes from Threshold Enterprises Ltd., “a wholesale distributor of dietary supplements and health care products to the natural foods industry and health care professionals.” Their brand Source Naturals offers a Wellness Shot as a 2.5oz dietary supplement.
I searched the USPTO database and confirmed that Threshold does, indeed, own registered trademarks for “Wellness Shot” and “Wellness Shots” word marks in International Class 005 for dietary supplements.
I’m not a lawyer, but I do have some experience in dealing with trademark issues through my marketing work.  In my (non-lawyer) opinion, Threshold’s demand has a few issues:

There are many different trademark classes, and Threshold’s trademark is in class 5 which includes pharmaceuticals and dietary supplements, but not juice or beverages. Juice shots would be considered part of class 32, “light beverages.” Therefore, the mark is not automatically protected in juice and other beverage markets. Threshold could probably make a case that there is still “likelihood of confusion” by the consumer since their shots are a similar product to juice shots, but this is not as easy to defend as just owning a mark in the relevant class.
The mark itself, “Wellness Shot” is descriptive. Descriptive marks cannot be trademarked under the law. Here is language directly from the USPTO:  “The examining attorney will refuse registration of a mark as merely descriptive if it immediately describes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services.” Since “Wellness Shot” falls into this descriptive category, it may be possible to challenge the mark and have it cancelled.
The term “Wellness Shot” has arguably become the generic term for a small serving of cold-pressed juice.  This is important because if valid trademarks later becomes generic terms they can be challenged and cancelled.

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