Aldona J. Spiegel

Trademark Trial and Appeal Board

May 4, 2011

No. 77721658 (T.T.A.B. May. 4, 2011)

THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.

Mailed: May 4, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Aldona J. Spiegel
________

Serial Nos. 77721658 and 7721718
_______

John S. Egbert of Egbert Law Offices, PLLC for applicant.

Lief Martin, Trademark Examining Attorney, Law Office 112
(Angela Bishop Wilson, Managing Attorney).
_______

Before Grendel, Holtzman, and Wolfson, Administrative
Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

Aldona J. Spiegel has filed two use-based applications
to register the standard-character mark THE CENTER FOR
BREAST RESTORATION,1 and the mark depicted below2

1 Application Serial No. 77721658, filed April 24, 2009, alleging
first use in commerce of 2001.
2 Application Serial No. 77721718, filed April 24, 2009, alleging
first use in commerce of 2001.
2

both for “medical services, namely, cosmetic and
reconstructive breast surgery services; providing
information via a website on a wide range of information
concerning cosmetic and reconstructive breast surgery,” in
Class 44.
The examining attorney refused registration of the
word mark THE CENTER FOR BREAST RESTORATION, in standard
character form, on the ground that the mark is merely
descriptive under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), and because applicant has failed to
show that the mark has acquired distinctiveness under
Section 2(f) of the Act, 15 U.S.C. § 2(f). With respect
to the word and design mark, the examining attorney issued
a final requirement that applicant disclaim the exclusive
right to use the term “ Center For Breast Restoration” on
the ground that the wording is merely descriptive under
Section 2(e)(1) and that applicant's evidence is
insufficient to show acquired distinctiveness under Section
2(f). See Section 6(a) of the Trademark Act of 1946, 15
U.S.C. §1056(a).
When the refusals were made final, applicant appealed.
In the alternative, applicant requested that the mark THE
CENTER FOR BREAST RESTORATION be allowed on the
Supplemental Register and that the mark CENTER FOR BREAST
3

RESTORATION and Design be allowed on the Principal Register
with a disclaimer to the phrase “Center for Breast
Restoration.”
Consolidated appeal briefs have been filed pursuant to
the Board’s order consolidating the cases on September 9,
2010. We affirm the refusals to register.
The Mark is Merely Descriptive
“A term is merely descriptive if it immediately
conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is
used.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828, 1831 (Fed. Cir. 2007). See also, In re
Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371
(Fed. Cir. 2004); In re Engineering Systems Corp., 2 USPQ2d
1075 (TTAB 1986); and In re Bright-Crest, Ltd., 204 USPQ
591 (TTAB 1979). It is well-established that the
determination of mere descriptiveness must be made not in
the abstract, but in relation to the goods or services for
which registration is sought, the context in which the mark
is used, and the impact that it is likely to make on the
average prospective purchaser of such goods or services.
Bayer, 82 USPQ2d at 1831. See also, In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978).
4

The examining attorney has the burden to establish
that a mark is merely descriptive. Bayer, 82 USPQ2d at
1831. To meet his burden, the examining attorney made of
record the following dictionary definitions for the
individual words CENTER, FOR, BREAST and RESTORATION in the
proposed mark:3
Center: a source from which something originates ; a facility.

For: used as a function word to indicate purpose.

Breast: either of the pair of mammary glands
extending from the front of the chest in pubescent
and adult human females and some other mammals.

Restoration: an act of restoring or the condition
of being restored: as a: a bringing back to a
former position or condition : reinstatement b: restitution c: a restoring
to an unimpaired or improved condition d: the replacing of
missing teeth or crowns.

The examining attorney also submitted printouts from
third-party websites showing use of “breast restoration” to
identify surgical procedure services similar to those of
applicant. A few representative examples are set forth
below:
Breast restoration is sometimes needed when a man
or woman has lost significant weight in the upper
portion of his or her body.
(www.cosmeticsurgerytravel.com);

The purpose of this study was to explore the breast
restoration decision–making patterns used by women

3 From www.merriam-webster.com/dictionary/ 7/22/09.
5

who opted to have their breast cancer treated by
mastectomy.(www.ncbi.nlm.nih.gov)

Of course for victims of breast cancer who have
undergone mastectomies, implants can be a very
comforting part of the recovery process. But breast
restoration is very different from breast
enhancement. (www.thecrimson.harvard.edu)

Whether you or a loved-one is facing a mastectomy or
lumpectomy, there are multiple state-of-the-art
options for breast restoration.
(http://breastreconstructionhouston.com)

For more than ten years microsurgical reconstruction
has become the gold standard in breast restoration
after cancer. (www.microsurgery.net)

As further evidence of the descriptiveness of the
mark, the examining attorney has also included copies of
third-party registrations for marks containing the phrase
“CENTER FOR…” where no claim was made to the mark as a
whole, or where the mark was registered on the Supplemental
Register.
Evidence supplied by applicant corroborates the
examining attorney’s evidence.
Exhibit N to applicant’s declaration (submitted in
response to the second Office Action) is a 2003 brochure
advertising applicant’s services. Several descriptive uses
of “breast restoration” appear throughout this brochure:
We understand the anxiety and uncertainty in
choosing the breast restoration option in the face
of dealing with the diagnosis of cancer.
…
There are two main options for breast restoration,
either implants or your own tissue.
6

…
When your own tissue is used for breast restoration
and is transferred from another area of the body,
it is called a flap. This type of procedure … is
the preferred method for breast restoration.
…
The advantage of immediate breast restoration is
that most of the breast skin can be preserved and
used in the reconstruction.

Exhibit R is identified as applicant’s current brochure.
In it, applicant uses the term “breast restoration”
descriptively as follows:
The final goal of breast restoration is not only to
create a soft, symmetric breast but also to restore
sensation.
…
Ultimately, the selection of the optimal type of
breast restoration procedure is very individualized
and based on patients’ goals and desires.

Exhibit T, an article from Leading Medicine, vol. 4 no.2
(2006) entitled “Breast Reconstruction: Restoring Self-esteem
to Breast Cancer Survivors,” highlights the achievements of
several surgeons, including applicant, who perform breast
restoration:
“Weimer and his partner Dr. David Lee, typically
perform three types of traditional breast
restorations – skin expansion, latissimus dorsi flap
and the flap from the abdominal area.
…
"We are essentially rebuilding the patient’s breast
with her own tissue…" said Dr. Aldona Spiegel, who
specializes in microsurgical muscle-reserving
procedures for breast restoration.

Finally, in Exhibits V and W, advertising placed by
applicant in Newsweek and in Change Magazine, applicant
7

uses the words “breast restoration” descriptively. In the
Newsweek advertisement, the following appears: “Dr. Spiegel
offers the most complete form of breast restoration,” and
in the Change Magazine advertisement, the following
appears: “Her goal is to provide not only the most
advanced breast restoration procedures, but also a caring
and supportive environment….”
In sum, the evidence of record establishes prima facie
that the term [THE] CENTER FOR BREAST RESTORATION is highly
descriptive of applicant’s cosmetic and reconstructive
breast surgery.4 The terms used in the marks, by virtue of
the plain meaning of each constituent word, as well as when
taken as a whole, merely describe applicant’s center where
applicant treats breast conditions by means of cosmetic and
reconstructive breast surgery.
Applicant’s Evidence of Acquired Distinctiveness is
Insufficient

Applicant has the burden of establishing that her mark
has become distinctive. See Yamaha International Corp. v.
Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1006
(Fed. Cir. 1988). The question of acquired distinctiveness

4 The article “the” in the mark denotes a particular place (The
Center for Breast Restoration). It has no trademark significance
because it functions only as a term of reference (i.e., it simply
emphasizes “Center”). See In re The Place Inc., 76 USPQ2d 1467,
1468 (TTAB 2005); In re The Computer Store, Inc., 211 USPQ 72, 73
(TTAB 1981)(the definite article “the” is of no consequence to
the mark’s registrability).
8

is one of fact which must be determined on the evidence of
record. There is no specific rule as to the exact amount
or type of evidence necessary at a minimum to prove
acquired distinctiveness, but generally, “the greater the
degree of descriptiveness the term has, the heavier the
burden to prove it has attained secondary meaning.” In re
Bongrain International Corp., 894 F.2d 1316, 1317 n.4,
13 USPQ2d 1727, 1728 n.4 (Fed. Cir. 1990); see also In re
Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424
(Fed. Cir. 2005); and Yamaha, 6 USPQ2d at 1008.
As shown above, applicant’s mark is highly descriptive
of the recited services. Taken as a whole, the evidence is
insufficient to show that the mark has acquired
distinctiveness.
In her declaration, applicant states that she first
started using [THE] CENTER FOR BREAST RESTORATION “at least
as early as 2002;”5 that she has treated “approximately
1,100 patients”6 and generated “more than $10 million gross
revenue.”7 However, applicant has not provided a context
for these figures in terms of market share or comparative
income, nor clarified whether total gross revenue reflects
total procedures or just those relating to breast

5 Declaration of Dr. Aldona J. Spiegel (“Spiegel Dec.”), para. 6.
6 Id., at 13.
7 Ibid.
9

restoration or reconstruction. Applicant’s 8 years of use
of the mark is thus not persuasive, considering its highly
descriptive nature. See In re Packaging Specialists, Inc.,
221 USPQ at 920 (use of “Packaging Specialists, Inc.” for
sixteen years held not sufficient to establish acquired
distinctiveness).
Applicant’s mark appears on the title slide of several
slide presentations given by applicant.8 These bear such
titles as “Muscle Sparing Free Tissue Transfer in Breast
Reconstruction: the Baylor Experience” and “Post-operative
Care of the Breast Reconstruction Patient.” From the
titles, it appears that these presentations have been
directed to medical personal, such as doctors and nurses.
There is no record evidence that these slide presentations
were ever viewed by applicant’s intended clients or how
these presentations made an impact on the intended clients.9
Likewise, applicant’s internal documents10 do not appear to
have been publically available. “None of this material is
evidence of public exposure to the marks, or in any event,

8 Spiegel Dec., Exhibits A, E, F, G and L; Response, (unmarked)
Exhibit C.
9 Additionally, applicant states that Exhibit F, for example, is
the first slide of a presentation that was made at the “American
Society for Plastic Surgery Annual Meeting” and the “American
Society for Reconstructive Surgery Annual Meeting”; and Exhibit G
is the first slide of a presentation made at the “5th Houston
Plastic Surgery Seminar.” Spiegel Dec., para. 8.
10 Spiegel Dec., Exhibits D (patient forms), J (office notes), and
K (business plan).
10

of the extent of public exposure to such marks.” Nike Inc.
v. WNBA Enterprises LLC, 85 USPQ2d 1187, 1194 (TTAB
2007)(internal documents and documents directed to
merchandisers rather than ultimate consumer not evidence of
public exposure to alleged family of marks). Thus,
applicant’s use of her mark on these materials does not aid
in showing that the mark is recognized by clients as an
indication of source.
Applicant’s advertising consists of a flyer,11 an
information sheet12 (listing doctors at The Center for
Breast Restoration), a press release,13 an advertisement14
and articles15 published in the Methodist Leading Medicine
magazine, applicant’s own brochures,16 and advertisements in
the Houston Woman magazine,17 Change Magazine,18 and
Newsweek.19 These advertisements and articles fail to
establish acquired distinctiveness inasmuch as they
reference THE CENTER FOR BREAST RESTORATION as a trade name
rather than as a service mark: that is, the advertisements
refer to applicant as the director and/or founder of The

11 Spiegel Dec., Exhibit H.
12 Spiegel Dec., Exhibit C.
13 Spiegel Dec., Exhibit B.
14 Spiegel Dec., Exhibit I.
15 Spiegel Dec., Exhibit T and X.
16 Spiegel Dec., Exhibits M, N and R; Response, Exhibit B.
17 Spiegel Dec., Exhibit S.
18 Spiegel Dec., Exhibits U and W.
19 Spiegel Dec., Exhibit V.
11

Center for Breast Restoration, but do not otherwise show
the mark being used to identify applicant’s services.
There is no information as to the extent of any public
exposure thereof, such as circulation or subscriber
figures, whether the advertising was distributed nationally
or regionally only, or the length of time during which any
advertisement was publically available. While applicant’s
brochures do display applicant’s design mark, and appear
intended for distribution to potential consumers, there is
no information as to the number of brochures distributed to
patients, or prospective patients, the length of time
during which brochures were made available, or the impact
of the brochures on consumer’s awareness and recognition of
the mark as identifying the source of applicant’s services.
Moreover, the brochures themselves contain descriptive
usages of “breast restoration,” lessening the overall
effect of any exposure to result in acquired
distinctiveness. Without information as to the effect, if
any, such advertising has on consumer recognition, and
given the minimal use of the marks on the advertising, we
are not persuaded that consumers have come to recognize
applicant as the source of “cosmetic and reconstructive
breast surgery services” under the mark.
12

Applicant’s unsolicited media coverage, a transcript
from a TV broadcast20 and articles featuring applicant’s
medical practice,21 lacks persuasive value for similar
reasons. Again, THE CENTER FOR BREAST RESTORATION has been
used as a trade name and not as a mark, with applicant
being referred to as the director of the Center for Breast
Restoration; the record is silent as to the extent to
which, or to whom, any of the magazines have been
disseminated; and there is no information in the record as
to the nature or scope of circulation of the magazines, or
the subscription rate of any particular issue.
As to the customer recognition statements,22 none of
them refer to applicant’s mark, but rather to Dr. Spiegel
as an individual. The stained glass window23 made in
appreciation to Dr. Spiegel with the “ribbon” from
applicant’s word and design mark adjacent to a card bearing
the mark may show that the designer is aware of applicant’s

20 Applicant’s Response to Office Action (“Response”), Exhibit A.
21 Spiegel Dec., Exhibits O-Q, T, U, X and Y; Response, Exhibits A
and D.
22 Spiegel Dec., Exhibit Z.
23 Exhibit Z consists of two hand written envelopes from consumers
addressed to “The Center for Breast Restoration,” several hand
written notes to Dr. Spiegel that do not include the mark, and a
picture of a stained glass window containing the “ribbon” design
from applicant’s design mark adjacent to a poster-sized card
marked with applicant’s design mark and containing hand written
notes of appreciation.
13

business, but it does not show that applicant’s mark has
acquired distinctiveness for applicant’s services.
Finally, with respect to applicant’s argument that she
is the first to use the wording “breast restoration,”24 it
is well established that the fact that no other competitor
is using the mark does not justify registration when the
only significance projected by the term is merely
descriptive. See In re Hunter Fan Co., 78 USPQ2d 1474,
1476 (TTAB 2006) (“a word need not be in common use in an
industry to be descriptive, and the mere fact that an
applicant is the first to use a descriptive term in
connection with its goods, does not imbue the term with
source-identifying significance”); In re Alpha Analytics
Investment Group LLC, 62 USPQ2d 1852, 1856 (TTAB 2002).
In view of the above, we find that applicant has not
met her burden of showing that the mark has acquired
distinctiveness; that is, that her advertising and
promotional efforts have resulted in the recognition of
[THE] CENTER FOR BREAST RESTORATION as a service mark,
rather than as a trade name and/or descriptor of the type
of services offered at the facility known as the Center for
Breast Restoration. See In re Audio Book Club, Inc., 52

24 In paragraph 3, applicant states “I was not familiar with
anyone using breast restoration when I created the Center’s name.
…I wanted something to make my Center’s name different and used
the term restoration instead [of reconstruction].”
14

USPQ2d 1042 (TTAB 1999) (inadequate evidence to establish
that advertising and promotional efforts resulted in
recognition of AUDIO BOOK CLUB as indicator of source of
services, rather than as name of new category of “book
club” services).
Decision: The refusal to register the mark THE CENTER
FOR BREAST RESTORATION, trademark application Serial No.
77721658, is affirmed.
In view of applicant’s amendment of this application
to the Supplemental Register, contingent upon our decision
that the mark is merely descriptive, applicant’s amendment
to the Supplemental Register is approved and the mark will
register on the Supplemental Register in due course.
The requirement under Section 6 of the Act for a
disclaimer of the words “CENTER FOR BREAST RESTORATION”
apart from the mark as a whole, in trademark application
Serial No. 7721718, and the refusal to register the mark in
the absence of this disclaimer, is affirmed. However, the
refusal will be set aside and the mark published for
opposition if applicant, no later than 30 days from the
date of mailing of this decision, submits an appropriate
disclaimer. See Trademark Rule 2.142(g).