Wednesday, September 02, 2015

"INDICES" Not Deceptively Misdescriptive of Healthcare Data Reporting, Says TTAB

The Board reversed a Section 2(e)(1) refusal to register the mark INDICES, finding it not deceptively misdescriptive of "business analysis services in the field of healthcare data, namely, the collection, reporting and analysis of healthcare data for business purposes." In re Inovalon, Inc., Serial No. 85351975 [Section 2(e)(1) deceptive misdescriptiveness refusal of  .

The test for deceptive misdescriptiveness under Section 2(e)(1) has two parts: (1) the mark must misdescribe the goods or services, and (2) consumers must believe the misdescription. Unlike for a Section 2(a) deceptiveness refusal, the misdescription need not be material to the purchasing decisions of reasonably prudent consumers.

The Examining Attorney argued that "companies providing informatics and data aggregation may present data in the form of 'indices;' that consumers encounter 'indices' in the analysis and presentation of large sets of data; that Applicant provides datasets in the field of healthcare; and that Applicant’s datasets in the field of healthcare may be analogous to indexes or "indices.''"

The Board rejected applicant's argument that INDICES is an acronym for INSIGHTS DATA INTELLIGENCE SOLUTION, since there was no evidence that the mark was so intended or understood. [What does intent have to do with it? - ed.].

Applicant stated that its INDICES services do not provide information to customers in the form of an index.

The Board concluded that the Examining Attorney had failed to carry her burden of proof to show that INDICES "may plausibly describe a characteristic" of applicant's services. The proffered definition of "index" as a reference table having keys that allow one to address data items was specific to computers. Other evidence regarding indexes of data in certain industries was "too speculative" to be applicable here.

Simply put, the Examining Attorney’s evidence requires several steps from the use of “indices” to present and organize data in various industries to the interpretation of Applicant’s services as providing datasets in the healthcare field to analogizing such datasets as “indices” for us to find that the mark INDICES merely describes a function, feature or characteristic of the recited services. At best, the evidence indicates that INDICES may be suggestive thereof.

The Board therefor found it unnecessary to address the issue of whether the supposed misrepresentation was likely to be believed by consumers, since it found no misrepresentation.

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TTABlog comment:

Text Copyright John L. Welch 2015.


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