Wednesday, August 11, 2021

TTAB Affirms Genericness Refusal of CRANIAL/STRUCTURAL for Medical Massage Services, Rejecting "Mixed Evidence" Argument

The Board affirmed a genericness refusal of the proposed mark CRANIAL/STRUCTURAL for "educational services, namely, providing instructional courses in the field of medical massage" and "medical massage therapy services," rejecting the Applicant SET's argument that the evidence of genericness was "mixed" and therefore inconclusive. In the alternative, the Board turned down the SET's claim of acquired distinctiveness under 2(f) despite 15 years of continuous and substantially exclusive use. In re Structural Energetic Therapy, Serial No. 87827772 (August 9, 2021) [not precedential] (Opinion by Judge Albert Zervas).

Genericness: The Board first found, as usual, that the genus of services involved is suitably expressed by the recitation of services in the application at issue. The consumers of applicant's services are members of the general public. 

SET submitted a declaration from its owner claiming 15 years of continuous use for the proposed mark, describing the promotion of the services, and listing the various governmental approvals obtained. He also declared that he "founded the therapeutic technique ... named CRANIAL/STRUCTURAL." SET also submitted 18 "essentially identical" declarations from massage and health professionals, stating that they attended SET's courses and "do not identify the term Cranial/Structural as describing a specific type of massage services, such as Swedish massage, offered by others who have not successfully completed the Cranial/Structural courses." 

Examining Attorney Breanna Freeman relied on dictionary definitions of cranial and structural, and on numerous website pages and articles using the term cranial structural to refer to a specific massage technique. SET contended that the evidence was "mixed," since there were no dictionary definitions of the term and since several therapy-related organizations and websites do not recognize Cranial/Structural as a common form of massage. 

The Board, however, pointed to the statement of SET's owner that "[a]s the name implies, Cranial/Structural addresses the structural aspects of the body in relationship to the cranium." The Board agreed with the examining attorney that third-parties have used the terms "Cranial/Structural" and "Cranial/Structural technique" to identify a certain type of massage. 

Even if SET's owner "founded the therapeutic technique," and even if most of the Internet articles were authored by him, that does not render the proposed mark a non-generic term. "What counts 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." Applicant's uses Cranial/Structural "for the most part, as an adjective." 

The eighteen declarations submitted by SET had limited probative value because they are form declarations. There was no indication as to how the declarants used the term, and no declarations from persons who did not participate in 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 Board therefore brushed aside the argument that the record evidence is "mixed." There was little evidence that consumers recognize CRANIAL/STRUCTURAL as a mark, and much of the evidence uses the term to identify a massage technique. 

And so, the Board affirmed the genericness refusal.

Acquired Distinctiveness: The Board also considered SET's claim of acquired distinctiveness, assuming agruendo that the proposed mark is not generic. Since CRANIAL/STRUCTURAL is at least highly descriptive, SET's burden to prove distinctiveness was commensurately high. The Board found SET's evidence to be insufficient. SET offered no details regarding its sales or advertising, no evidence of intentional copying, and no evidence of unsolicited media coverage.

Even as to the 15 years of use, the Board had questions as to how the proposed mark was presented to the therapists. And there was no direct evidence that consumers associate the term with SET as a source indicator. As to the 18 declarations, "some degree of geographic and customer diversity is necessary for the declarations to have probative value."

And so, the Board rejected the alternative Section 2(f) claim.

Read comments and post your comment here.

TTABlogger comment: Is this a WYHA?

Text Copyright John L. Welch 2021.


At 8:53 AM, Blogger Eddie said...

So CRANIAL/STRUCTURAL is generic for massage

but Stretchflex isn't generic for underwear

Got it.

Underwear that stretches. Who'd a thunk it?

At 10:39 AM, Anonymous Anonymous said...

I don't understand why the Board jumps through hoops to force these generic rejections.

The answer we were looking for is: Although the mark is not generic, it is highly descriptive and not registrable on the Principal Register. Despite the 15 years of use, it has not acquired distinctiveness due to widespread third party use, as evidenced by the third party use cited by the examining attorney (albeit, the third party use was submitted in support of the genericness rejection).

When the USPTO pushes an issue - like they have been with the generic rejections over the last couple of years - then they push too hard and inevitably they will be overturned on appeal at some point. In turn, the pendulum will swing back, opening the gate for generic marks to obtain some level of protection. It all just creates long-term uncertainty in the law, which is not good.


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