1401.13(d) Dietetic Substances and Meal Replacements
The 10th edition amended the Class 5 Explanatory Note to include "meal replacements, dietetic food and beverages, adapted for medical or veterinary use." For classification in Class 5, these three items must be identified as being "adapted for medical use" or "adapted for veterinary use" (or include other language indicating that these items are adapted for a particular medical or veterinary use) to make clear that their purpose and use are not as part of a regular diet for human beings or animals. Under the 10th edition (effective January 1, 2012), the specific meal replacement, dietetic food, or dietetic beverage item must also be indicated. Under the 11th edition of the Nice Agreement (effective January 1, 2017), changes were made to the requirements for the identification of dietetic foods and beverages in Class 5; for more information, see TMEP §1401.14(c).
The Class 5 Explanatory Note was also amended under the 10th edition to exclude "meal replacements, dietetic food and beverages not for medical or veterinary consumption (Cl. 29, 30, 31, 32 or 33)." This specific exclusion is a corollary to the inclusion discussed above. Previously, all meal replacements were classified in Class 5, and the Nice Agreement was silent regarding how to classify dietetic food and beverages that were not for medical or veterinary purposes. Meal replacements and dietetic food and beverages that are not for medical or veterinary use must be identified with adequate specificity to determine the particular food or beverages classes in which they should be classified. For example, "fruit-based meal replacement bars" is acceptable in Class 29 based on the wording "preserved, frozen, dried and cooked fruits and vegetables" in the Class 29 class heading, and "chocolate-based meal replacement bars" is acceptable in Class 30 based on the wording "cocoa," "confectionery," and "sugar" in the Class 30 heading.
The identification "dietetic substances adapted for medical or veterinary use" is indefinite because it does not indicate the particular goods on or in connection with which the applicant uses, or has a bona fide intention to use, the mark in commerce. See TMEP §1402.01. Identifications for dietetic substances for medical or veterinary use should set forth the common name of the specific "substances," such as "ground flaxseed fiber for use as a dietary supplement," in Class 5.