TTABlog Test: Is PHYSICIANCARE Merely Descriptive of Software and Services Enabling Manufacturers to Deliver Information to Healthcare Providers?

The USPTO refused registration of the mark PHYSICIANCARE under Section 2(e)(1), finding it merely descriptive of services that enable the management and delivery, on behalf of pharmaceutical and medical device manufacturers, of clinically relevant communications to physicians and other healthcare providers. Applicant LDM Group argued that its mark cannot be descriptive because "it is not providing a medical service," pointing to the Examining Attorney’s “concession” that Applicant’s services “do[] not appear to be a medical service but rather some technological service.” How do you think this appeal came out? In re LDM Group, LLC, Serial No. 97184496 (October 24, 2024) [not precedential] (Opinion by Judge Jessica B. Bradley).

The Examining Attorney maintained that PHYSICIANCARE does not create a unique, incongruous, or nondescriptive meaning, but rather retains the descriptive meaning of the individual terms, "refer[ring] to how applicant’s healthcare related software and technology services are for assisting physicians in providing care to patients."

LDM Group asserted that the “function” of its services “is to provide product information from a pharmaceutical manufacturer to a physician, not to dictate the care provided to a patient,” and thus the mark PHYSICIANCARE is not merely descriptive of its “technology or software service.”

The Examining Attorney pointed to certain statements on LDM Group's website referring to helping patients, but the Board found that "these statements confirm the non-descriptive meaning. They inform relevant purchasers (i.e., the pharmaceutical and medical device manufacturers providing the medical and clinical information) that the medical and clinical information transmitted by Applicant’s services is used by physicians to care for patients."

The Board found that purchasers must engage in a multi-step analysis to arrive at the meaning proposed by the Examining Attorney.  "The first immediate step is identified by the services in the application, namely, that the 'website' and 'application programming interface' 'deliver[] clinically relevant communications' from 'pharmaceutical and medical device manufacturers' 'to physicians and other healthcare providers.'" In the second or third step, the physician reviews the communications and provides care to a patient. "This type of multi-stage reasoning supports that Applicant’s mark is suggestive."

Accordingly, Applicant’s mark PHYSICIANCARE, when considered in relation to Applicant’s Identified Services that provide medical and clinical information from pharmaceutical and medical device manufacturers to physicians in order to provide care for patients, presents an incongruous meaning, or at a minimum one that requires “some measure of imagination and ‘mental pause.'"

The Board acknowledged once again the thin line between suggestiveness and mere descriptiveness and its obligation to give the benefit of any doubt to the applicant, "with the knowledge that a competitor of applicant can come forth and initiate an opposition proceeding in which a more complete record can be established.”

And so, the Board reversed the refusal to register.

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Text Copyright John L. Welch 2024.