Wednesday, March 19, 2014

TTAB Says "NUCLEAR" Deceptively Misdescriptive of Health Care Services, Must Be Disclaimed

The Board affirmed a refusal to register the mark shown immediately below [CARE PARTNERS and the White-Cross-within-Heart design disclaimed], for "health care" and various related services on the ground that Applicant failed to comply with the Examining Attorney's requirement that NUCLEAR be disclaimed because it is deceptively misdescriptive of the services under Section 2(e)(1). In re Nuclear Care Partners, LLC, Serial No. 85578775 (March 7, 2014) [not precedential].

Examining Attorney William T. Verhosek maintained that "nuclear care" will be perceived as a reference to "nuclear medicine," a field in which imaging devices and radioactive biochemical compounds are used to diagnose and treat diseases. Because applicant services do not involve nuclear medicine, the Examining Attorney argued, the term "nuclear" is deceptively misdescriptive of the services.

Applicant contended that it offers home health nursing agency services exclusively to former workers in the nuclear weapon and energy fields who qualify for no-cost in-home medical benefits because of work-related illnesses. In addition, "nuclear" plays on a reference to "nuclear" families as a place where applicant's nurses provide in-home health care services.

Based upon third-party website evidence, the Board found that in the context of "health care," the "prototypical health care consumer would perceive 'nuclear' or 'nuclear care' as related to 'nuclear medicine.'" Thus the word "nuclear" misdescribes an aspect of applicant's services that they might plausibly possess but do not. That satisfied the first prong of the Section 2(e)(1) test.

The second prong requires proof that the relevant consumers are likely to believe the misrepresentation conveyed by the term "nuclear." Applicant would have the Board limit the relevant consumers to qualified claimants under various federal acts who may receive applicant's services at no cost. The Board pointed out, however, that there are no such limitations in the recitation of services, and therefore it must consider whether the misrepresentation would be believed by all consumers of "health care," i.e., the general public. The Board concluded that consumers are likely to believe the misrepresentation.

Therefore the Board affirmed the requirement that NUCLEAR be disclaimed. Applicant was allowed thirty days to submit a disclaimer of NUCLEAR CARE PARTNERS.

Read comments and post your comment here.

TTABlog comment: Even if Applicant had limited its services to qualified claimants, it presumably would have had to disclaim NUCLEAR as merely descriptive.

Text Copyright John L. Welch 2014.


At 2:17 PM, Anonymous Anonymous said...

Does anyone know why the application is being allowed with a disclaimer instead of being denied outright?

At 5:31 PM, Anonymous Anonymous said...

What if they spelled it the way GWB pronounces it as "NUCULAR"?

At 8:37 PM, Anonymous Anonymous said...

Because disclaimers are not seen by consumer, don't see how disclaimer is appropriate in this case....

At 9:01 PM, Blogger John L. Welch said...

A mark that is deceptively misdescriptive under Section 2(e)(1) is still eligible for registration via Section 2(f). In other words, deceptive misdescriptiveness is not a bar to registration. If you don't have secondary meaning, you can disclaim the term, because it's still capable of being a registrable trademark.
If the term is deceptive under Section 2(a), however, it is barred from registration. That refusal requires proof of materiality.
I don't know why the Examining Attorney did not try a deceptiveness refusal under Section 2(a).


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