Barbara Cabott

Trademark Trial and Appeal Board

Dec 26, 2000

No. 75370361 (T.T.A.B. Dec. 26, 2000)

12/26/00 Paper No. 11
rls/emc
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Barbara Cabott
________
Serial No. 75/370,361
_______
David P. Cooper of Kolisch, Hartwell, Dickinson, McCormack
& Heuser for Barbara Cabott.
John E. Michos, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______
Before Simms, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Barbara Cabott (applicant), has appealed from the
final refusal of the Trademark Examining Attorney to
register the asserted mark MOVEMENT MEDITATION for
educational services, namely, classes and workshops on
movement therapy, meditation therapy and personal growth.1
The Examining Attorney has refused registration under
1 Application Serial No. 75/370,361, filed October 8, 1997,
claiming use since January 1, 1994.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/370,361
2
Section 2(e)(1) of the Act, 15 USC §1052(e)(1), and under
Section 2(d), 15 USC §1052(d). The Examining Attorney and
applicant’s attorney submitted briefs but no oral hearing
was requested.
We affirm both refusals.
The Mere Descriptiveness Refusal
The Examining Attorney argues that the mark MOVEMENT
MEDITATION is merely descriptive of workshops, classes and
counseling which provides instruction on meditation and
movement therapy. Relying upon dictionary definitions and
excerpts from the Nexis computer search system, the
Examining Attorney argues that applicant’s mark consists of
the descriptive term “movement” added to the generic term
“meditation,” such that the combination describes movement
and meditation training classes.2
Some of the excerpts relied upon by the Examining
Attorney are set forth below:
Taoist movement/meditation classes are led by
Lao Shih Susan Elkins of Jade Lady Meditation
and start today...
Anchorage Daily News, September 13, 1999
* * * * * * * * *
2 “Meditation” is defined in The American Heritage Dictionary of
the English Language (3d ed. 1992) as ‘1. a. The act or process
of meditating. b. A devotional exercise of or leading to
contemplation. 2. A contemplative discourse, usually on a
religious or philosophical subject.”
Serial No. 75/370,361
3
These include healing movement therapy, which
involves t’ai ch’i, a slow-movement meditation
designed to balance thoughts; and qi-gong, a
combination of movement, meditation and breath
control to balance the flow of qi, or vital life
energy, according to a Mind/Body Institute
pamphlet.
The Jupiter Courier, June 13, 1999
* * * * * * * * *
Chi-gong, movement meditation, eight-week
introductory course…
The Detroit News, February 9, 1999
* * * * * * * * *
…an accurate word for this presentation. As
the shaikh explained, the dervishes are not
performers but participants in a spiritual
movement-meditation that has remained almost
unchanged for centuries. The repetitive whirling
is meant to be a kind of embodied cosmology…
Albuquerque Journal, October 25, 1998
* * * * * * * * *
…religious community whose form of prayer and
chant has drawn pilgrims of all ages from around
the world. The simple, repetitive songs,
augmented with movement meditations, are designed
for all present to take part. The workshop will
be held at…
Ventura County Star, October 3, 1998
* * * * * * * * *
KAYE: A more spiritual connection is easily
visible in this movement meditation class. Based
on the martial art form tai chi, partners close
their eyes and move with each other, coordinating
their breathing…
“Saturday Morning,” CBS News Transcripts, August
15, 1998
* * * * * * * * *
Serial No. 75/370,361
4
What the author calls autokinetics is really a
form of movement meditation-–simple, rhythmic
motions done while sitting or kneeling.. and as
such, they should appeal to anyone who finds
sitting still the toughest part of…
Newsday, March 10, 1998
* * * * * * * * *
…whack, you have disease at which point a
practitioner’s response will be to use
acupuncture, medicinal herbs, massage, diet and a
movement meditation such as tai chi to restore
balance and, consequently, health.
The Commercial Appeal, February 22, 1998
* * * * * * * * *
…create imbalance, manifesting itself as disease.
TCM practitioners seek to restore the balance
through diet, acupuncture, massage, herbs, and
movement meditation such as tai chi…
Idaho Falls Post Register, February 12, 1998
* * * * * * * * *
Dhamma Dena Retreat Center, Joshua Tree. Retreat
is held in silence and includes sitting, walking,
sound and movement meditation.
The Press-Enterprise, August 6, 1997
* * * * * * * * *
The Examining Attorney has also referred to the
specimens of record, a brochure entitled “WHERE BODY MEETS
MIND A MOVEMENT WORKSHOP for professionals in the healing
arts,” wherein the following description of applicant’s
services is set forth:
THE WORKSHOP
When body meets mind through movement, many
possibilities open to you: integration, a feeling
Serial No. 75/370,361
5
of wholeness, a renewed sense of ease and joy.
Where body meets mind through movement, you reach
a level of awareness that is richer than thought
alone. How body meets mind through movement is a
discovery process that touches deeper dimensions
of yourself, your environment and beyond.
In this workshop we will follow the elusive,
respect the subtle and welcome the power of body-
mind union-–using movement as our bridge…
THE METHOD
You will be guided into Movement Meditation.
Movement Meditation embraces gentle, guided
movements that connect Body, Mind and
Environment. Movement Meditation invites
authentic connections through quiet attention and
acceptance. It is a discovery process that goes
deep into the dimensions of your essence to
encourage self-care and heightened awareness.
Free movement, art and collage, percussion
and sound will help your Integration Process and
provide opportunities for fun and creativity.
Some theoretical concepts will be presented.
There will be a time for group sharing, to
express and to learn from each other. No prior
movement or art experience is necessary.
The brochure further indicates that applicant is a
licensed psychologist and licensed massage therapist with
experience as a movement therapist, who is “dedicated to
restoring the relationship between body, mind and spirit--
through movement.”
Applicant, on the other hand, argues that her mark is
suggestive because thought is needed to understand the
relationship between the mark and applicant’s services,
which include movement therapy and meditation. Applicant
maintains that she coined this alliterative phrase and that
Serial No. 75/370,361
6
she is unaware of others who may use this same phrase.
Concerning the Nexis evidence, applicant’s states that
there is no evidence that consumers use applicant’s mark to
describe her therapy services.
Upon careful consideration of this record, we believe
that the Examining Attorney has established that
applicant’s mark is merely descriptive of her classes and
workshops dealing with movement therapy, meditation therapy
and personal growth. Purchasers and potential purchasers
of applicant’s services are likely to view applicant’s mark
as describing or naming the particular type of meditation
services which applicant offers. The evidence and
applicant’s own brochure convey this merely descriptive
significance.
The Likelihood-of-Confusion Refusal
The Examining Attorney has refused registration on the
basis of Registration No. 1,918,419, issued September 12,
1995, for the mark MOVING MEDITATION (“MEDITATION”
disclaimed) for “educational services, namely conducting
aerobic exercise classes incorporating mediative [sic,
should be “meditative”] techniques with various styles of
aerobic movement; conducting seminars and workshops in the
field of mind/body fitness.” The Examining Attorney argues
that the marks MOVEMENT MEDITATION and MOVING MEDITATION
Serial No. 75/370,361
7
refer to motion and meditation and that they are similar in
sound and commercial impression. With respect to the
services, the Examining Attorney argues that applicant’s
services involving movement therapy and meditation therapy
are closely related to registrant’s services involving
exercise with meditative techniques and mind/body fitness.
Both services involve movement and meditation classes,
seminars and workshops, according to the Examining
Attorney. These are the same or similar types of
instruction, the Examining Attorney maintains. Further,
because there is a no limitation in the respective
descriptions as to classes of purchasers or channels of
trade, these services may be offered to the same potential
purchasers, according to the Examining Attorney.
Applicant, on the other hand, argues that the cited
mark is “weak” and “descriptive” of registrant’s classes,
because participants in respondent’s services meditate
while aerobically moving, and because of certain third-
party registrations which contain either the word “MOVING”
or the word “MEDITATION.”3 Because registrant’s mark is
3 Applicant lists such registrations as those covering the marks
“TRANSCENDENTAL MEDITATION,” “SIDDHA MEDITATION,” “HIGH-TECH
MEDITATION” and “MOVING TOWARDS RECOVERY.” It should be noted
that an applicant, who has not filed a petition to cancel a cited
registration, may not attack that registered mark on the basis
that it is merely descriptive. See In re White Swan Ltd., 8
USPQ2d 1534 (TTAB 1988).
Serial No. 75/370,361
8
assertedly descriptive, applicant maintains that her mark
may come closer without causing confusion. Applicant also
maintains that the marks differ in sight, sound and
meaning, with the word “MOVING” being used as an adjective
in the registered mark, whereas in applicant’s mark
“MOVEMENT” is a noun that identifies the activity in which
clients engage.
Concerning the services, applicant argues that
registrant’s services involve instruction in aerobic
exercise but not in therapeutic meditation, whereas
applicant’s services are psychotherapy services which
combine movement therapy and meditation. Applicant also
argues that these services are offered in different
channels of trade.
Upon careful consideration of this record and the
arguments of the attorneys, we agree with the Examining
Attorney that confusion is likely. The marks “MOVING
MEDITATION” and “MOVEMENT MEDTIATION” are obviously very
similar in sound, appearance and meaning. Also,
registrant’s exercise services involving meditative
techniques and applicant’s services involving movement and
meditation therapy are closely related services.
Concerning any alleged weakness in the registered mark, we
observe that even weak marks are entitled to protection
Serial No. 75/370,361
9
from confusingly similar marks. In sum, we believe that
persons familiar with registrant’s MOVING MEDITATION
meditative exercises who then encounter applicant’s
MOVEMENT MEDITATION educational services involving movement
and meditation therapy are likely to believe that these
services come from or are sponsored by the same entity.
Decision: The refusals of registration are affirmed.