BeautyMed, Inc.

Trademark Trial and Appeal Board

May 17, 2016

No. 85077385 (T.T.A.B. May. 17, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 17, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re BeautyMed, Inc.
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Serial No. 85077385
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Diane L. Gardner of Mastermind IP Law P.C.,
for BeautyMed, Inc.
Carolyn A. Pendleton, Trademark Examining Attorney, Law Office 103,
Michael Hamilton, Managing Attorney.
_____

Before Ritchie, Shaw and, Heasley
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
BeautyMed, Inc. (“Applicant”) seeks registration on the Principal Register of the
mark COMPLEXIONS RX (in standard characters) for the following goods and
services:
Cosmetics, namely, foundation make-up, face powder,
blush, lipstick, mascara and cosmetic pencils; non-
medicated skin care preparations, namely, facial cleansers,
non-medicated acne skin cleansers and pads impregnated
with cleansers; facial bar soaps; facial scrubs; facial
masques; facial and skin exfoliants; eye make-up remover;
facial and skin toners; facial and skin moisturizers; eye-
creams; anti-aging creams; anti-wrinkle creams; night
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creams; skin lighteners; skin texturizers; men’s and
women’s shaving preparations; men’s after shave lotion;
bubble bath; body wash; hair care products, namely,
shampoo, conditioner, detangling preparations and
cleansers; baby powder; body soap; body cleanser; body
exfoliants; body moisturizer; body powder; non-medicated
foot powder; non-medicated foot soaks; non-medicated foot
moisturizer; non-medicated foot cream; hand cream; hand
moisturizer; sunscreen preparations, namely, lotions,
creams, gels, sprays, sticks, and non-medicated lip balms;
after-sun lotions; self tanning lotions; and towelettes pre-
moistened with sunscreen lotion, in International Class 3;
Medicated skin care preparations, namely, medicated
topical skin creams, gels, toners, exfoliant scrubs, lotions,
sprays, and powders used in connection with baby care,
and for the treatment of acne, psoriasis, rashes, dry skin
and itch problems; antimicrobial skin cleansers, gels and
creams; dandruff shampoo and conditioner; and hair
growth stimulants, in International Class 5;
Retail store services in the field of cosmetic and therapeutic
skin care products, in International Class 35; and
Medical counseling and plastic surgery; cosmetician
services, namely, cosmetic and color analysis and personal
skin therapy and treatment; skin care salon services, in
International Class 44.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that
Applicant’s mark is merely descriptive of the identified goods and services. When the
refusal under Section 2(e)(1) was made final, Applicant appealed and requested

1 Application Serial No. 85077385 was filed on July 2, 2010 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging first use anywhere and in commerce on January
21, 1999.
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reconsideration. The Examining Attorney denied the request for reconsideration and
the appeal resumed. The case is fully briefed.2 We affirm the refusal to register.
I. Mere Descriptiveness under Section 2(e)(1)
“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 Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007)); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009-10 (Fed.
Cir. 1987). Whether a particular term is merely descriptive is determined in relation
to the goods or services for which registration is sought and the context in which the
term is used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp.,
588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222,
1224 (TTAB 2002).
II. Arguments and Evidence
The Examining Attorney argues that “consumers will immediately understand
the purpose of the goods and services upon viewing the mark in connection with the
goods and services. Specifically, that applicant’s goods and services are designed to
remedy skin complexion issues, thus are a COMPLEXIONS RX, or a remedy for
complexions.”3 In support of her position that the mark COMPLEXIONS RX is merely
descriptive of the applied-for goods and services, the Examining Attorney submitted

2 Applicant’s complete reply brief filed on May 4, 2016 has been considered.
3 Examining Attorney’s Br., pp. 13-14; 12 TTABVUE 13-14.
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evidence pertaining to the meaning of the individual terms, as well as Applicant’s
and third parties’ use of the terms. The evidence falls into three categories: (1)
dictionary definitions of COMPLEXIONS and RX; (2) third-party registrations for
similar goods and services wherein the term COMPLEXIONS or RX is disclaimed, or
otherwise treated as merely descriptive; and (3) third-party websites purporting to
show that the term RX has a broader meaning to the general public than referring
solely to a doctor’s prescription.
The dictionary definitions submitted by the Examining Attorney define
“complexion” as “the natural color, texture, and appearance of the skin, esp. of the
face: a clear, smooth, rosy complexion.”4 The term “RX” is defined as a “prescription
for medicine or a medical appliance” and also as a “remedy, cure, or solution for a
disorder or problem.”5
The following third-party registrations are representative of the more than sixty
registrations submitted by the Examining Attorney purporting to show that the
terms COMPLEXION(S) and RX are considered to be descriptive when used on goods
and services similar to Applicant’s:6
• Registration No. 1960487 for the mark NEW COMPLEXIONS MAKEUP,
for “makeup,” registered under Section 2(f);
• Registration No. 3433432 for the mark COMPLEXION CONTROL, for
“cosmetic skin preparations,” registered on the Supplemental Register;
• Registration No. 3556075 for the mark COMPLEXIONS DAY SPA for
“Spa services,” registered under Section 2(f);

4 Dictionary.com, Office action of October 20, 2010, p. 5.
5 Thefreedictionary.com, Office action of October 20, 2010, p. 6.
6 Examining Attorney’s Office action of February 9, 2015.
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• Registration No. 2799369 for the mark RADIANT COMPLEXIONS
DERMATOLOGY CLINICS, with a disclaimer of COMPLEXIONS
DERMATOLOGY CLINICS, for “skin care products” and “medical care and
consultations;”
• Registration No. 3759365 for the mark COMPLEXION SAVIOR, with a
disclaimer of COMPLEXION, for “non-medicated skin care preparations;”
• Registration No. 3270629 for the mark COMPLEXION PROTECTION,
for sunscreen, registered on the Supplemental Register;
• Registration No. 4122446 for the mark COMPLEXION PROGRESSION,
with a disclaimer of COMPLEXION -for “medical spa services;”
• Registration No. 4569288 for the mark COMPLEXION COCKTAIL, with
a disclaimer of COMPLEXION, for “non-medicated skin care preparations;”
• Registration No. 3510721 for the mark RESULTS RX, with a disclaimer of
RX, for “medicated skin care preparations;”
• Registration No. 3518140 for the mark DR. SUSAN TAYLOR’S RX FOR
BROWN SKIN, with a disclaimer of RX FOR BROWN SKIN, for cosmetics
and skin care products;
• Registration No. 4097976 for the mark CLARITY RX, with a disclaimer of
RX, for cosmetics;
• Registration No. 4193357 for the mark SLIM NOW RX and design, with a
disclaimer of RX, for health and medical services; and
• Registration No. 4413923 for the mark FABULOUS SKIN RX, with a
disclaimer of RX, for “retail store services featuring skin care products and
body care products.”
The following excerpts from internet web sites, which purport to show that the
term RX has a broader meaning to the general public than referring solely to a
doctor’s prescription, are representative of the ones submitted by the Examining
Attorney:7
• www.pbs.org/wgbh/rxforsurvival – a television report on global health
challenges titled RX FOR SURVIVAL;
• www.rxforbrownskin.com – a web site titled RX for brown skin featuring
skin care products;
• rxforhealthyliving.com – a website titled RX FOR HEALTHY LIVING
offering personal and lifestyle advice for healthy living;

7 Examining Attorney’s Office action of September 16, 2015.
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• www.computerrx.org – the website of a company called COMPUTER RX
providing computer technology consulting;
• www.kitchenbathrx.com – the website of a company called KITCHEN &
BATH RX providing kitchen and bathroom remodeling services; and
• www.pesches.com – the website of a gardening and landscaping company
providing gardening advice via a webpage titled Garden Rx.

Applicant argues that COMPLEXIONS RX is inherently distinctive. Applicant
submitted a definition of RX, from Dictionary.com, which is consistent with the
definition submitted by the Examining Attorney.8 Applicant also claims ownership of
two cancelled registrations for the same mark, COMPLEXIONS RX, for nearly
identical goods and services.9 These registrations were cancelled for failure to file
Section 8 affidavits. Applicant submitted a number of third-party registrations for
similar goods or services wherein the term COMPLEXIONS or RX is not disclaimed,
or otherwise treated as merely descriptive.
Many of the third-party registrations submitted by Applicant are inapposite. In
some of the registrations, the terms COMPLEXION or RX are not disclaimed or
otherwise treated as descriptive because the marks are hyphenated, compound
words, or unitary. See Trademark Manual of Examining Procedure (April 2016),
section 1213.05 et seq. and cases cited therein. In other registrations, the identified
goods or services differ significantly from Applicant’s goods and services. Still other
registrations identify marks containing the term RXS, not RX. And in some of the

8 Applicant’s Request for Reconsideration of July 31, 2015, pp. 32-34.
9 Registration Nos. 2491278, cancelled June 20, 2008, and 2385259, cancelled March 10, 2008.
Both registrations disclaimed the term RX.
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registrations, the common term at issue has, in fact, been disclaimed apart from the
mark.10
Nevertheless, the following representative registrations on the Principal Register,
submitted by Applicant, are relevant to show that the terms COMPLEXION(S) and
RX are not always considered to be descriptive by the Office when used on goods or
services similar to Applicant’s:
• Registration No. 4373092 for the mark THE COMPLEXION
AUTHORITY, for “skin care preparations;”
• Registration No. 3378731 for the mark CMC COSMEDIC
COMPLEXIONS PHYSICIAN ONLY SKIN CARE, with a disclaimer of
COSMETIC and SKIN CARE, for medicated and non-medicated skin care
preparations;
• Registration No. 2111393, for the mark NEW COMPLEXION, for makeup;
• Registration No. 1779446 for the mark FRESH COMPLEXION, for
cosmetics;
• Registration No. 3989302 for the mark URBAN SKIN RX (stylized), with
a disclaimer of SKIN, for “cosmetic creams for skin care; lotions for skin;
non-medicated skin care creams and lotions; skin creams; skin fresheners;
skin lotions;”
• Registration No. 3402746 for the mark BLEMISH RX, with a disclaimer of
BLEMISH, for “cosmetics;”
• Registration No. 3184292 for the mark SKINLAB RX, for “body and beauty
care cosmetics;” and
• Registration No. 3242932 for the mark GREAT LIPS RX, with a
disclaimer of LIPS, for “Non-medicated lip balm.”

10 See e.g., Registration Nos. 4500775, disclaiming “the prescription symbol,” and 1380959,
disclaiming “complextion” [sic].
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III. Analysis
The record shows that the term RX is widely used to describe products and
services that “remedy” particular problems. The numerous third party registrations
and Internet web site excerpts submitted by the Examining Attorney confirm both
the dictionary definition and the likely public understanding that RX refers to a
“remedy, cure, or solution for a disorder or problem.”11 When RX is combined with
COMPLEXIONS and used in connection with Applicant’s cosmetics and skin care
products and services, the combination of these terms simply describes the function
of Applicant’s goods and services, namely, to remedy disorders or problems with the
color, texture, or appearance of the skin. Simply put, Applicant is providing
complexion remedies.
Applicant argues that the Examining Attorney “has not provided any evidence to
support the assertion that the relevant consumers would identify with the same
commercial connotations as the combination of carefully selected definitions.”12 That
is, the Examining Attorney has dissected the mark and not analyzed it “as a whole.”13
We disagree. “In considering a mark as a whole, the Board may weigh the individual
components of the mark to determine the overall impression or the descriptiveness of
the mark and its various components.” In re Oppedahl & Larson LLP, 373 F.3d 1171,
71 USPQ2d 1370, 1372 (Fed. Cir. 2004). Where, as here, a mark consists of multiple
descriptive terms, the mere combination of these descriptive terms does not

11 Thefreedictionary.com, Office action of October 20, 2010, p. 6.
12 Applicant’s Br., p. 11, 10 TTABVUE 12
13 Id.
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necessarily create a nondescriptive term or phrase. In re Phoseon Tech., Inc., 103
USPQ2d 1822, 1823 (TTAB 2012); In re Associated Theatre Clubs Co., 9 USPQ2d
1660, 1662 (TTAB 1988). Moreover, there is nothing in the record to support a finding
that the individual terms, once combined, lose their descriptive meaning and gain a
new, nondescriptive connotation. On the contrary, the Internet evidence supports the
likely connotation of the mark by demonstrating that consumers are regularly faced
with a variety of goods and services that purport to be an “RX” or remedy for some
particular problem.
Nor do Applicant’s third-party registrations support a finding that
COMPLEXIONS RX is not merely descriptive. First, it is well settled that we must
make our decision in each case on its own merits. “Even if some prior registrations
had some characteristics similar to [another] application, the PTO’s allowance of such
prior registrations does not bind the Board. . . .” In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) quoted in In re Cordua Rests., Inc., No.
2015-1432, 2016 BL 152972, slip op. at 7 (Fed. Cir. 2016) (“The PTO is required to
examine all trademark applications for compliance with each and every eligibility
requirement . . . even if the PTO earlier mistakenly registered a similar or identical
mark suffering the same defect.”). See also, In re Styleclick.com Inc., 58 USPQ2d
1523, 1526 (TTAB 2001) (“While uniform treatment under the Trademark Act is an
administrative goal, our task in this appeal is to determine, based on the record before
us, whether applicant’s mark is merely descriptive. . . . [E]ach case must be decided
on its own merits.”).
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More importantly, as discussed supra, many of the third-party registrations upon
which Applicant relies are unitary, are used on different goods or services, or do not
contain the same terms as in Applicant’s mark. The few third-party registrations
submitted by Applicant that do not treat COMPLEXION(S) or RX descriptively are
vastly outweighed by the numerous third-party registrations submitted by the
Examining Attorney that do treat the terms descriptively. We conclude that the
combination COMPLEXIONS RX does not present a unique or incongruous term such
that the combination removes the merely descriptive significance from the terms.
Applicant also argues that its ownership of two cancelled registrations for the
same mark and nearly identical goods and services serves “as confirmation that the
USPTO has already determined that the mark in question was registrable on the
Principal Register for identical or nearly identical goods/services as those now
sought.”14. Applicant’s argument is unpersuasive. It is well settled that we must
assess each application on its own record and we are not bound by the decisions of
Examining Attorneys in other cases. Nett Designs, 57 USPQ2d at 1566. Additionally,
registrability must be determined at the time registration is sought. In re
Thunderbird Prods. Corp., 406 F.2d 1389, 160 USPQ 730, 732 (CCPA 1969). The
record in this case convinces us that the applied-for mark is merely descriptive of the
identified goods and services.
Applicant argues that its long-term continuous use of COMPLEXIONS RX has
strengthened the mark in the period since cancellation, and that the distinctiveness

14 Applicant’s Br., p. 18, 10 TTABVUE 19 (emphasis in original).
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of its prior registrations transfers to the pending application.15 This argument too is
unpersuasive. Applicant is not seeking registration under Section 2(f) of the
Trademark Act, therefore, Applicant’s length of use of the mark is not relevant to our
analysis. Moreover, Applicant’s argument that “long term continuous use is
indicative of increased distinctiveness”16 ignores the fact that such use must also be
“substantially exclusive.” 37 CFR § 2.41(a)(2). Long use alone does not guarantee the
registrability of a mark. Rather, the strength of a mark can wax and wane over time.
“Trademark rights are not static. A word or group of words not descriptive today may,
through usage, be descriptive tomorrow.” DeWalt, Inc. v. Magna Power Tool Corp.,
289 F.2d 656, 129 USPQ 275, 279 (CCPA 1961). Regardless, as Section 2(f)
registration was not sought, we do not consider this issue.
IV. Conclusion
For the reasons discussed, we conclude that when used on or in connection with
Applicant’s identified goods and services, the proposed mark COMPLEXIONS RX
merely describes that Applicant’s goods and services provide remedies for problems
with consumers’ complexions.
Decision: The refusal to register Applicant’s mark COMPLEXIONS RX under
Section 2(e)(1) of the Trademark Act is affirmed.

15 Id. at 20, 10 TTABVUE 21.
16 Id.