Precedential No. 35: Finding Applicant's Medical Reports not to be Goods In Trade, TTAB Affirms Refusal to Register

Ameritox Ltd. sought to register the mark RX GUARDIAN for "printed reports featuring medical laboratory results provided to medical practitioners for record keeping purposes." [see the specimen of use shown below.] The Board, however, agreed with Examining Attorney Verna B. Ririe that the reports are merely "part and parcel" of Applicant's laboratory testing services and are not "goods in trade" sold separately. And so the Board affirmed the refusal to register under Section 1, 2, and 45 of the Lanham Act. In re Ameritox Ltd., 101 USPQ2d 1081 (TTAB 2011) [precedential].

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On its website, Ameritox refers to its "Rx Guardian (SM) process." Based on the website and the specimen of use, the Examining Attorney maintained that the subject reports were nothing more than a vehicle by which the results of Applicant's services are reported. They are not available as separate "goods in trade."

The Board noted that ancillary items, like invoices, forms, and reports, used to conduct business do not constitute goods in trade. It found that Applicant's website demonstrates that RX GUARDIAN is a drug testing and reporting service. Applicant does not advertise the reports separate and apart from its services. The reports merely provide information based on the particular test results.

In short, "[t]he fundamental question in this case is what is being offered for sale under the RX GUARDIAN mark?" There was no evidence that Ameritox sells reports apart from its services; instead, the reports are "part and parcel" of its services, and thus are not "goods in trade."

TTABlog note: To find several additional examples of "goods in trade" refusals, stick that phrase in the TTABlog search box.

Text Copyright John L. Welch.