Alternative Continuum of Care of Iowa, L.L.C.

Trademark Trial and Appeal Board

Apr 17, 2015

No. 85941035 (T.T.A.B. Apr. 17, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: April 17, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Alternative Continuum of Care of Iowa, L.L.C.
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Serial No. 85941035
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Michael J. Gratz of Boyle Fredrickson SC,
for Alternative Continuum of Care of Iowa, L.L.C.
Douglas M. Lee, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
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Before Bucher, Ritchie and Shaw,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
Alternative Continuum of Care of Iowa, L.L.C. (hereinafter “Applicant”) seeks
registration on the Principal Register of the following mark:

for “providing assisted living facilities for older adults” in International Class 43.1

1 Application Serial No. 85941035 was filed on May 23, 2013, based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as December 15, 2012. In
Serial No. 85941035
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The Trademark Examining Attorney has refused registration of Applicant’s
mark pursuant to Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), based
upon Applicant’s failure to comply with the requirement to disclaim the four-word
phrase “Alternative Continuum of Care” on the ground that this phrase describes
the nature of “[A]pplicant’s services, namely, assisted living facilities that serve as
part of an integrated system of care that exist outside traditional or established
institutions or systems regarding older adult care and/or feature alternative
therapies or medication” (Trademark Examining Attorney’s appeal brief at
unnumbered page 11) within the meaning of Section 2(e)(1) of the Trademark Act,
15 U.S.C. § 1052(e)(1).
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Trademark Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
The record sufficiently supports the conclusion that “Continuum of Care” is
highly descriptive for these recited services, and Applicant has agreed to disclaim
this three-word phrase. The only issue before us then is whether the four-word
phrase “Alternative Continuum of Care” is merely descriptive, and hence whether
all the literal elements of this composite mark must be disclaimed.
The Trademark Examining Attorney provided for the record the following
definition of the word “alternative”:

its response of March 11, 2014, to the initial Office action of September 12, 2013, Applicant
amended the application to one based upon a bona fide intention to use the mark in
commerce. The mark consists of an oak leaf with acorns next to the wording “Alternative
Continuum of Care.” Applicant has agreed to disclaim the exclusive right to use the term
“Continuum of Care” apart from the mark as shown.
Serial No. 85941035
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alternative, adj.
2. a. Existing outside traditional or established institutions or systems: an alternative lifestyle;
alternative energy.
b. Espousing or reflecting values that are different from those of the establishment or mainstream:
an alternative newspaper. 2

Websites placed into the record discuss various types of “Alternative Therapies”
and “Alternative Medicine” being offered to seniors in a number of settings:

Alternative Therapies
Orchard Cove is expanding the possibilities for improved health and senior wellness. Some of the therapies we offer
have been around for centuries, while other approaches use advanced technology to reduce stress and improve overall
well-being. We believe that exploring these techniques can lead to healthier lifestyle changes and more fulfilling lives.
1. Senior Wellness Programs: Mind, Body, and Spirit
Orchard Cove's Center for Healthy Living offers integrative therapies to complement traditional fitness and medical
approaches. These innovative programs are both invigorating and relaxing, emphasizing a deeper sense of awareness,
purpose, and healing.
Our center offers the following mind, body, and spirit activities to nurture each resident's senior wellness plan:
2. Quantum Biofeedback, Homeopathy, and Scalar Laser
Using a gentle headband, biofeedback identifies stress in the body and is able to induce relaxation and stress reduction.
More than 70% of chronic disease has a major stress component, so it makes sense that reducing stress brings relief.
Homeopathy involves safe, effective, diluted remedies that stimulate the body's own defense mechanisms. And Scalar
Laser technology is becoming the treatment of the future for skin care, wound care, pain relief, and carpel tunnel
syndrome.
3. Therapeutic Massage
Massage dates back thousands of years. The manipulation of muscles and soft tissue warms/increases blood flow and
oxygen to a specific area while decreasing pain.
4. Shiatsu Acupressure
Gentle yet firm pressure is applied to specific points along the meridian channels. Stretching techniques may also be used
to clear energy blockages and restore balance. As muscle tension and skeletal stiffness are relieved, a calm feeling is
experienced on physical, emotional, and spiritual levels.
5. Reiki
Reiki is a healing practice that originated in Japan. Reiki practitioners place their hands slightly above the person
receiving treatment, identifying problems and sending healing energy through their hands. This has been proven to
facilitate the individual's own healing response.
6. The Trager® Approach
Utilizing gentle, nonintrusive, natural movements, the Trager Approach helps release deep-seated physical and mental
patterns, facilitating deep relaxation, increased physical mobility, and mental clarity. The patterns may have developed in
response to accidents, illness, or any kind of physical or emotional trauma, including the stress of everyday life. 3

2 thefreedictionary.com/, as attached to the Office Action dated September 12, 2013.
3 Orchard-Cove, dated April 3, 2014, attached to the Office Action dated April 4, 2014.
Serial No. 85941035
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January 17, 2011

As we age, our bodies handle medicines and medical treatments (i.e., surgery) differently than when we
were young. This is partly a result of our aging bodies increase in body fat and decrease in body water
content and lean body mass. The aging population also begins to use more and more medications at the
same time in their lives that they tend to be most vulnerable to the adverse effects from these drugs.
An Ohio State University Study stated that “70 percent of older Americans turn to alternative medicines to
treat their health problems.” (Healthy Alternatives for the Elderly, M. Sottosanti, Associated Content).
What are some of those alternative sources?
A well-known source of alternative medicine is the use of herbs and nutritional supplements. For example,
we know that as we age our hearts become weaker and often require a boost from some form of
medication for high blood pressure, heart disease, etc. An alternative to these prescribed medications
could be the use of omega 3 capsules (fish oil), known to not only aid in the lowering of blood pressure,
but also helping build a strong heart and vascular system.
Eastern medicine has offered the West the use of acupuncture – a means of controlling the flow of energy
in the body. This treatment is primarily considered non-invasive in nature (even though very thin needles
are utilized, it is not a surgical procedure by any stretch of the imagination). Combine this with
Chiropractic treatments – the realigning of the body skeletal system through manipulation of those parts
which then restores the proper nerve functioning – and you now have yet another non-invasive alternative
to surgery.
A third alternative form of treatment is massage therapy. In this form, it is the hope that stress will be
reduced and that circulation will be improved, both which should help to alleviate heart related problems,
such as hyper tension.
In a general sense, many folks are reassessing the method in which they approach their overall health.
For example, elders once thought of doctors as god-like in their abilities (not in the literal sense mind
you). Today, with the proliferation of publicly known lawsuits and the media reporting every failure
discovered that a doctor may have, the elder population is seeking alternatives to Westernized medicine
and its doctors.
An area that has come out from under its hiding spot is Naturopathy – the healing process that employs
the use of more natural forces; such as air, water, sunshine to treat diseases while rejecting more
Western medical practices. And it should also be noted that many people in general, not just the elderly,
are turning to these alternative forms of treatment (if we can use that term).
An example of a Naturopath treatment might be the use of holistic diets that consist of more natural
contents – fish, fresh colorful vegetables, and fruits.
It should be noted that although more and more elders are moving towards these alternative methods of
treatment to resolve serious medical issues (i.e., cancer, pain management, etc.), the vast majority of the
American and Canadian elder population continues to rely on the Western medical system for the
treatment of whatever ails them. I personally find it encouraging that we are beginning to view our bodies
in slightly different ways than we once did, and that unique view is leading us in an alternative direction
for our health related treatments, both proactively (through wellness programs) and reactively (through a
combination of Western medicine and many alternative treatment options).
Once we are able to fully integrate the various options for treatment that are available, we may find our
children and our children’s children living routinely to 100 years of age and up.4

4 www.visitingangels.com/alternative-medicine-for-the-elderly-weekly-message_21
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Senior Care Center
The Senior Care Unit at Parkview Regional Hospital offers the only inpatient geriatric psychiatric services
in our service area. Focused on addressing the unique issues associated with aging, the Senior Care Unit
houses nine beds and a staff dedicated to clinical therapy and dementia treatment. Our staff is clinically
focused and patient centered.
Services on the SCU include individual interdisciplinary treatment planning; medical care and nutritional
counseling; individual, group and family counseling; alternative therapy (music, horticulture, relaxation,
reminiscing); continued care planning; family support; psychological testing; and diagnostic screening for
depression, anxiety and confusion.
Families or physicians may request a thorough assessment by a screening professional to be completed in
the home, physician’s office or other facility. 5

These enumerated types of medicine or therapy fit the dictionary entry for
“alternative” of “existing outside traditional or established institutions or systems.”
Therefore, the Trademark Examining Attorney argues that the descriptive aspects
of the mark are not lost in the combined form, and that the mark in its entirety
is nothing more than the sum of its merely descriptive components, and hence, is
equally descriptive of Applicant’s recited services. That is, the Trademark
Examining Attorney argues that this four-word phrase immediately, and
without conjecture, describes a salient quality or characteristic of Applicant’s
services.
By contrast, Applicant argues that in order for the Office to prevail in this
appeal, the involved services would have to include “assisted living facilities that
exist outside traditional or established institutions or systems.” However,
Applicant points out that the recited services are not described in this manner,

5 http://www.parkviewregional.com/our_services/senior_care_center.aspx.
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and nothing provided by the Applicant or present in the prosecution history of
this application would suggest such a limitation.
Conceptually, we understand as a construct a continuum of care for the elder.
As seniors age, and their overall health and ability to function independently
declines, the traditional continuum of care may include living with in-home
assistance, retirement settings, assisted living, nursing homes, etc. The articles
highlighted above discuss alternative therapies such as healing energy work and
other forms of Eastern medicine, herbs and nutritional supplements, massage
therapy and Naturopathy, music, horticulture and relaxation, etc. Often these
alternative approaches are touted as healthier and less expensive approaches to
senior care. Accordingly, in the event that Applicant is actually prepared to provide
a continuum of care offering a range of alternative solutions to the traditional
models, we find the entire phrase to be merely descriptive of the recited services. To
the extent Applicant is not offering such alternative solutions, the phrase would be
deceptively misdescriptive under Section 2(e)(1), and still need to be disclaimed.
Decision: The refusal to register Applicant’s composite mark absent the
required disclaimer under Trademark Act § 6(a) is hereby affirmed. However, this
decision will be set aside if Applicant submits the required disclaimer to the Board
within thirty (30) days from the date of this decision. Trademark Rule 2.142(g). A
proper disclaimer should read as follows:
No claim is made to the exclusive right to use the phrase “Alternative
Continuum of Care” apart from the mark as shown.