United States: TTAB asserts CRANIAL / STRUCTURAL’s generic denial of medical massage services, rejecting “mixed evidence” argument
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The board confirmed the refusal of the generic nature of the proposed mark
CRANIAL / STRUCTURAL for “educational services, namely, providing courses in the field of medical massage” and “medical massage therapy services”, rejecting SET plaintiff’s argument that the evidence of genericness was “mixed” and therefore inconclusive. In the alternative, the Commission rejected the claim of acquired distinctiveness of SET under paragraph 2 (f) despite 15 years of continuous and substantially exclusive use. In re Structural Energy Therapy, Serial number 87827772 (August 9, 2021) [not precedential] (Opinion of judge Albert Zervas).
Genericity: The Board first concluded, as usual, that the kind of service in question is appropriately expressed by the recitation of services in the request in question. The consumers of the applicant’s services are members of the general public.
SET has submitted a statement from its owner claiming 15 years of continuous use of the proposed mark, describing the promotion of the services and listing the various government approvals obtained. He also said that he “founded the therapeutic technique … named CRANIAL / STRUCTURAL”. SET also submitted 18 ‘essentially identical’ statements from massage and healthcare professionals, stating that they have taken SET’s courses and ‘do not identify the term cranial / structural as describing a specific type of massage service, like Swedish massage, offered by others who did not pass the cranial / structural courses. ”
Examining attorney Breanna Freeman has relied on dictionary definitions of cranial and structural, and numerous website pages and articles using the term structural cranial to refer to a specific massage technique. SET argued that the evidence was “mixed”, since there were no dictionary definitions of the term and several therapy-related organizations and websites do not recognize cranial / structural massage as a common form of massage.
The Council, however, underlined the statement by the owner of SET that “[a]As the name suggests, Cranial / Structural addresses structural aspects of the body in relation to the skull. identify a certain type of massage.
Even though the owner of SET “founded the therapeutic technique”, and even though most Internet articles were written by him, this does not make the proposed brand a non-generic term. “What matters is how ‘Cranial / Structural’ is used in the evidence.” There was no indication in the articles that SET is the source of the technique. The term is “regularly used in the evidence with terms such as ‘technique’ indicating a type of massage.” The applicant uses Cranial / Structural “mostly as an adjective”.
The eighteen declarations submitted by SET have limited probative value as they are formal declarations. There was no indication of how the registrants used the term, and no reports from people who did not attend SET’s courses. The fact that SET uses’ Cranial / Structural ‘as the name of a course’ suggests that the term identifies the subject matter taught in the course. ”
The Commission therefore rejected the argument that the evidence on the record is “mixed”. There was little evidence that consumers recognize CRANIAL / STRUCTURAL as a brand, and most of the evidence uses the term to identify a massage technique.
And so, the Council confirmed the refusal of genericity.
Acquired distinctive character: The Commission also examined SET’s acquired distinctiveness claim, assuming that
agruendo that the proposed brand is not generic. Since CRANIAL / STRUCTURAL is at least highly descriptive, SET’s burden of proving distinctiveness was proportionately high. The Commission found that SET’s evidence was insufficient. SET has not provided any details regarding its sales or advertising, no evidence of intentional copying, and no evidence of unsolicited media coverage.
Even with regard to the 15 years of use, the jury questioned how the proposed brand was presented to therapists. And there was no direct evidence that consumers associate the term with SET as a source indicator. As for the 18 declarations, “a certain geographic and clientele diversity is necessary for the declarations to have probative value”.
And therefore, the Commission rejected the alternative request of Article 2 (f).
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TTABlogger comment: Is it a WYHA? How was this “score” obtained by the examining lawyer in the first place?
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