Cigna Intellectual Property, Inc.

Trademark Trial and Appeal Board

Dec 23, 2020

86842483 (T.T.A.B. Dec. 23, 2020)

This Opinion is not a
Precedent of the TTAB

Oral Hearing: October 29, 2020 Mailed: December 23, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Cigna Intellectual Property, Inc.
_____

Serial No. 86842483
_____

Lynn E. Rzonca, Jessica Watkins1 and Corinne Militello, Ballard Spahr LLP,
for Cigna Intellectual Property, Inc.

Gretta Yao, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.2
_____

Before Zervas, Adlin and Dunn,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Cigna Intellectual Property, Inc. (“Applicant”) seeks registration on the Principal
Register of the proposed mark LEVEL FUNDING (in standard characters) for “Ad-
ministration of employee benefits plans, namely, administration of employer-based

1 Ms. Watkins argued for Applicant in the oral hearing.
2 Mr. Baird argued for the USPTO in the oral hearing.
Serial No. 86842483
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self-funded or partially-funded group health plans, with stop loss insurance, featur-
ing predictable monthly fees and costs” in International Class 36.3
After the October 17, 2016 Office Action in which the Examining Attorney made
final her merely descriptiveness refusal under Trademark Act Section 2(e)(1), 15
U.S.C. §1052(e)(1), Applicant timely appealed and submitted a request for reconsid-
eration. In its request, Applicant argued against the refusal and claimed acquired
distinctiveness under Trademark Act Section 2(f), 15 U.S.C. § 1052(f), in the alterna-
tive.4 The Board suspended the appeal and remanded the application to the Examin-
ing Attorney for consideration of the request for reconsideration.
After further prosecution, the Examining Attorney issued a second Final Office
Action on December 5, 2017, refusing registration under (i) Trademark Act Sections
1, 2 and 45, 15 U.S.C. §§1051, 1052, 1127, on the basis that the proposed mark ge-
neric; and (ii) in the alternative, under Section 2(e)(1), on the basis that the proposed
mark is merely descriptive of Applicant’s services and Applicant’s showing of ac-
quired distinctiveness under Section 2(f) is insufficient.

3 Application Serial No. 86842483 was filed on December 8, 2015, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming first use on October 1, 2007 and first use in
commerce on November 30, 2007.
4 April 12, 2017 Response, TSDR 3. Page references to the application record refer to the
online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system.
All citations to documents contained in the TSDR database are to the downloadable .pdf ver-
sions of the documents in the USPTO TSDR Case Viewer. See, In re Peace Love World Live,
LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). TTABVUE references refer to the Board’s
docket system.
Serial No. 86842483
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Applicant filed another request for reconsideration on June 5, 2018, which the
Board construed as a request for remand and granted. The Examining Attorney de-
nied the request and maintained the refusals. Thereafter, on August 31, 2018, Appli-
cant requested another remand of the application to the Examining Attorney to sub-
mit additional evidence, which the Board granted. The Examining Attorney denied
the August 31, 2018 request and, after further prosecution — including Applicant’s
July 9, 2019 Response requesting registration on the Supplemental Register if its
showing of acquired distinctiveness is not accepted — the Examining Attorney issued
a third Final Office Action on July 31, 2019, maintaining the genericness and, in the
alternative, the mere descriptiveness refusals, and finding insufficient Applicant’s
showing of acquired distinctiveness.
Subsequently, the Board resumed the appeal, and allowed Applicant time to file
a Supplemental Brief which Applicant did not do. The Examining Attorney then filed
her brief and Applicant later filed a reply. The Board conducted an oral argument on
October 29, 2020.5
We affirm the refusals to register Applicant’s proposed mark and approve the de-
cision of the Examining Attorney not to accept Applicant ’s showing under Section 2(f).

5 In the oral hearing, Mr. Baird stated that the USPTO consents to registration of the pro-
posed mark on the Supplemental Register in the event the Board reverses the genericness
refusal and affirms the merely descriptive refusal and the finding that Applicant’s Section
2(f) showing insufficient.
Serial No. 86842483
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1. Genericness
A generic term “is the common descriptive name of a class of goods or services.”
Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
1830 (Fed. Cir. 2015) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)); see also USPTO v. Booking.com
B.V., 140 S. Ct. 2298, 2020 USPQ2d 10729, *1 (2020). Because generic terms “are by
definition incapable of indicating a particular source of the goods or services,” they
cannot be registered as trademarks. Id. (quoting In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001)). “The critical issue in
genericness cases is whether members of the relevant public primarily use or under-
stand the term sought to be protected to refer to the genus of goods or services in
question.” Id. (quoting Marvin Ginn, 228 USPQ at 530).
Making this determination “involves a two-step inquiry: First, what is the genus
of goods or services at issue? Second, is the term sought to be registered ... understood
by the relevant public primarily to refer to that genus of goods or services?” Marvin
Ginn, 228 USPQ at 530. See also Princeton Vanguard, 114 USPQ2d at 1829 (“there
is only one legal standard for genericness: the two-part test set forth in Marvin
Ginn”). “An inquiry into the public’s understanding of a mark requires consideration
of the mark as a whole.” Id. at 1831 (quoting In re Steelbuilding.com, 415 F.3d 1293,
75 USPQ2d 1420, 1421 (Fed. Cir. 2005)).
A term may be generic if it refers to part of the claimed genus of services. In re
Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1638 (Fed. Cir. 2016) states:
Serial No. 86842483
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[A] term is generic if the relevant public understands the
term to refer to part of the claimed genus of goods or ser-
vices, even if the public does not understand the term to
refer to the broad genus as a whole. Thus, the term “pizze-
ria” would be generic for restaurant services, even though
the public understands the term to refer to a particular
sub-group or type of restaurant rather than to all restau-
rants. See, e.g., [In re Northland Aluminum Prods., Inc.,
777 F.2d 1556, 227 USPQ 961 (Fed. Cir. 1985)] (affirming
the TTAB’s determination that BUNDT is generic “for a
type of ring cake”); In re Analog Devices, Inc., 6 USPQ2d
1808, 1810, 1988 WL 252496, at *3 (TTAB 1988) (“There is
no logical reason to treat differently a term that is generic
of a category or class of products where some but not all of
the goods identified in an application fall within that cate-
gory.”), aff’d, 871 F.2d 1097 (Fed. Cir. 1989) (unpublished);
see also Otokoyama Co., Ltd. v. Wine of Japan Imp., Inc.,
175 F.3d 266, 271 (2d Cir.1999) (“Generic words for sub-
classifications or varieties of a good are [ ] ineligible for
trademark protection.”). “A registration is properly refused
if the word is the generic name of any of the goods or ser-
vices for which registration is sought.” 2 McCarthy § 12:57.
A “term need not refer to an entire broad species, like
‘cheese’ or ‘cake,’ in order to be found generic.” 1–2 Anne
Gilson LaLonde, Gilson on Trademarks § 2.02[7][a] (2011).
In an ex parte appeal, the USPTO has the burden of establishing by clear evidence
that a mark is generic and, thus, unregistrable. In re Hotels.com, 573 F.3d 1300, 91
USPQ2d 1532, 1533 (Fed. Cir. 2009); In re Gould Paper Corp., 834 F.2d 1017, 5
USPQ2d 1110, 1111 (Fed. Cir. 1987); In re Merrill Lynch, Pierce, Fenner and Smith,
Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987).
a. The Genus of Services
“[O]ur first task is to determine, based upon the evidence of record, the genus of
Applicant’s [services] ….” In re ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1600
(TTAB 2014). Lauren Stoddard, Applicant’s Marketing Product Manager for its
LEVEL FUNDING service, explains in her November 9, 2017 Declaration:
Serial No. 86842483
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8. There are two types of self-funded health insurance
plans:
(1) administrative services only plans (“ASO”), and (2) par-
tially self-funded plans. ASO plans require the employer to
pay the full amount of medical claims incurred by their en-
rollees. They pay a third party only for certain administra-
tive costs to manage the health plan.
9. The other type of self-funded health insurance plan is
known as a partially self-funded plan. In partially self-
funded insurance plans, employers pay for employee claims
up to a threshold amount. Employers on such plans use
“stop-loss” insurance to protect against “catastrophic” and
higher-than-expected enrollee medical claims.
10. Applicant’s LEVEL FUNDING solution falls under the
category of partially self-funded health plans and services.
This service incorporates stop-loss insurance which helps
customers avoid coverage gaps that can result from using
an outside or third-party insurer for stop-loss protection.
The service also facilitates stop-loss claim processing.
Other key features of Applicant’s LEVEL FUNDING ser-
vice include predictable monthly costs, and the ability of
the employer to share in the surplus if medical claims are
lower than expected.6
In the oral hearing, the Managing Attorney consented to the genus proposed by
Applicant, self-funded or partially self-funded insurance plans.7 We agree with Ap-
plicant and the Managing Attorney that the genus is self-funded or partially self-
funded insurance plans.

6 November 9, 2017 Response Exh. A, TSDR 19-20.
7 See Applicant’s brief at p. 9, 14 TTABVUE 14 (“the correct genus of services is ‘self-funded’
or ‘partially self-funded insurance plans.”).
Serial No. 86842483
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b. The Relevant Purchasing Public’s Understanding of LEVEL
FUNDING

We turn now to the second inquiry under Marvin Ginn, whether LEVEL FUND-
ING is understood by the relevant public primarily to refer to “self-funded or partially
self-funded insurance plans.” Any competent source, including dictionary excerpts,
research databases, webpages, newspapers and other publications, may serve as evi-
dence to show the relevant public ’s understanding of the wording at issue. In re Reed
Elsevier Props. Inc., 482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007); In re
Merrill Lynch, Pierce, Fenner, & Smith, 4 USPQ2d at 1143.
Applicant and the Examining Attorney disagree on the relevant public. Applicant
maintains that “Applicant’s LEVEL FUNDING℠ service has been sold to more than
6,000 clients (employers sponsoring health plans), reaching approximately 825,000
enrollees across the United States,”8 and that “sophisticated insurance brokers are
the relevant class of consumers of Applicant’s LEVEL FUNDINGSM insurance prod-
uct.”9 The Examining Attorney maintains that “the relevant public comprises ordi-
nary consumers who purchase Applicant’s services, because there are no restrictions
or limitations to the channels of trade or classes of consumers. The consumers could
include business owners and/or insurance brokers and agents.”10
Because the services involve the “administration of employee benefits plans,
namely, administration of employer-based self-funded or partially-funded group

8 Applicant’s brief at p. 4, 14 TTABVUE 9.
9 Reply, at p. 2, 24, TTABVUE 3.
10 Examining Attorney’s brief, 23 TTABVUE 6, citing to a brochure submitted with the No-
vember 9, 2017 Office Action Response, TSDR 19.
Serial No. 86842483
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health plans, with stop loss insurance, featuring predictable monthly fees and costs,”
and because much of the evidence appears to be directed not to the general public but
to insurance professionals, we find that the relevant purchasing public comprises
both the insurance brokers and agents and the business owners which purchase the
self-funded or partially self-funded insurance policies. See, e.g., (i) Helios HR “Level
Funding [v]s. Self-Insuring: What’s Best for your Business?” stating “But how do you
know if it’s right for your company?;”11 (ii) “digital insurance” article entitled “Is Level
Funding in Your Future?” stating, “Level funding is gaining adoption in the small
business group market that is about to get even bigger. It gives employers more pre-
dictable costs but provides advantages of only paying for incurred healthcare costs. If
you think it might be advantageous for your business, consult your benefits advisor;
it just may be the alternative your business needs”;12 (iii) Applicant’s brochure enti-
tled “Level Funding Trust an Original,” stating “To learn more about Cigna Level
FundingSM, contact your broker or Cigna representative”;13 and (iv) Ms. Stoddard’s
Declaration, in which she identifies statements by “various brokers (clients)” regard-
ing LEVEL FUNDING.14 In addition, Ms. Stoddard states, “Applicant’s branded
LEVEL FUNDING marketing materials are provided both to brokers and directly to
employers ….”15

11 March 25, 2016 Office Action, TSDR 2; and August 31, 2018 Request for Remand, Exh. A-
3, TTABVUE 23, 25.
12 March 25, 2016 Office Action, TSDR 3.
13 September 23, 2016 Response, TSDR 10.
14 Id., TSDR 8.
15 November 9, 2017 Response Exh. A, Stoddard Declaration ¶ 14, TSDR 20.
Serial No. 86842483
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The Examining Attorney submitted the following evidence:
From the October 15, 2018 Office Action:

Compliance dashboard
There has been a recent uptick in interest in so-called “level funding”
as an attractive alternative for employers, particularly small employers,
who wish to self-insure their employee health benefits. While the idea of
level funding itself is not new, the current interest is being driven by the
desire to avoid some of the requirements of the ACA and mitigate the
cost of providing insurance.

As a starting point, it is worth noting that the term “level funding”
does not have an official definition; however, such arrangements do
seem to have some common features. A level funded arrangement differs
from a self-insured plan in several key respects:

• The risk corridor for the stop loss insurance is 0%. In other
words, the stop loss carrier is responsible for all claims over the
expected amount.

• The employer does not pay claims each month as they occur.
Rather, it pays a fixed monthly amount to the TPA. Accordingly,
there is no month-to-month volatility and therefore no cash flow
issues that are caused by the plan.

• At the end of the year, if the total claims paid are less than the
total benefit amount paid by the employer, the employer can get
a refund of the difference.

Potential positives a level funded plan provides:

• Gives an employer flexibility in plan design, including the abil-
ity to provide fewer benefits than insurance companies are re-
quired to provide;

• Is not subject to community rating;

• Does not expose the employer to any risk from larger than ex-
pected claims;

• Does not expose the employer to any monthly claims volatility;
and

Serial No. 86842483
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• Offers the prospect of a refund if actual claims are less than
expected claims.

However, employers may want to weigh the risks when considering
a level funded plan:

First, a self-insured plan with no risk corridor looks a lot like a fully
insured plan with insurance that is not subject to the laws governing
health insurance companies. Consequently, nearly half the states have
laws or regulations that prohibit stop loss carriers from issuing policies
that do not include a minimum risk corridor. They may also regulate
minimum individual claim amounts; and limit the arrangements to em-
ployers with more than a certain number of employees. In short, level
funding as it is frequently described may not be an option. (TSDR 12).

Soules Insurance Agency
“Level-funding Growing in Popularity Among Employers”
Level-funding is a self-insurance hybrid program which further ena-
bles companies to benefit from the regular and predictable cost of a fully
insured plan, while only paying for the healthcare costs actually in-
curred by employees. (TSDR 14-15).

Valley Benefits
How Does Level Funding Work For You? Level funding is the newest
form of self[-]funded health insurance and is sweeping the industry.
(TSDR 20).

Blue Cross and Blue Shield (Kansas City)
Blue KC will help you evaluate your maximum claims risk and then
blend specific and aggregate stop-loss insurance to create level funding
you can budget for each month.

***

Your level funding has been carefully designed to ensure you neither
over or under fund your plan. However, in the event your claims experi-
ence is lower than expected, you will receive back two-thirds of your un-
used claims dollars. Blue KC will retain one-third as a deferred admin-
istrative fee. (TSDR 19.)

Fringe Benefit Analysts
Level-funding has recently attracted far more attention among
larger small employers. At its simplest, level-funding is simply self-
Serial No. 86842483
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funding done small, usually by an office or offshoot of a fully-funded in-
surance carrier. With some level-funding providers offering their ser-
vices to companies down to 10 full-time employees, these plans obviously
can’t operate under the kind of risk possible with a larger company; ….
(TSDR 7.)

Record Searchlight
“Can midsize employers self-fund insurance?” (July 31, 2016) (Lex-
isNexis)
Group of 50-500 employees often overlook the possibilities of “level-
funding” concepts, which is a hybrid of partial self-funding.” “Partial
self-funding under the level-funding concept essentially unbundles the
insurance contract components ….” (TSDR 27.)

Health Tradition
“Level Funding for Health Insurance: New Choices.”
A type of self-funded health benefit solution called level funding has
been attracting more attention from small companies. (TSDR 9.)16

From earlier Office Actions:

Crain’s Detroit Business (LexisNexis)
To help fully insured companies shift to the self-funded approach,
Priority Health also offers small businesses a partially self-funded plan
called ‘level funding.’ Level funding works like fully insured plans, with
employers paying monthly premiums for set benefits, Norman said.
(July 5, 2018 Office Action, TSDR 4).

athenahealth
In order to simplify the transition to and administration of a level-
funded plan, companies should turn administrative responsibilities over
to a healthcare services partner that has considerable expertise and a
proven track record …. (December 5, 2017 Office Action, TSDR 6.)

Comment by “Lisa” to Helios article entitled “Level Funding [v]s.
Self-Insuring: What’s Best for your Business?” stating, “[b]ut what are
the down sides of level funding. What about ACA reporting require-
ments” (March 25, 2016 Office Action, TSDR 2.)

Forbes
“Meet the Future of Small-Business Health Insurance: Self Funding”
(August 30, 2017)

16 Also submitted with July 5, 2018 Office Action (12 TSDR).
Serial No. 86842483
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But a new study published by the Urban Institute suggests that this
could soon change. The report, which examined small business insur-
ance markets in six states, found that insurers and brokers are quickly
warming to self-funded insurance arrangements - sometimes called
level-funded plans - for small companies. … And because the timing of
misfortune, too, is unpredictable, carriers have created a mechanism,
level funding, that smooths the payments into equal monthly install-
ments. (If claims are low and the company overpays, the carrier reim-
burses it at the end of the year.) (July 5, 2018 Office Action, TSDR 16).

Applicant argues that its evidence “overwhelmingly shows that insurance indus-
try consumers do not understand LEVEL FUNDING℠ to be the generic name for
Applicant’s Health Plan Services (rather, they understand LEVEL FUNDING℠ to
be the name of Applicant’s insurance plan and they understand ‘self-funded’ or ‘par-
tially self-funded’ to be the name of the genus).”17 Applicant highlights its “strong and
consistent evidence of consumer recognition of LEVEL FUNDING℠ as a source indi-
cator” including broker statements affirming that consumers associate LEVEL
FUNDING with Applicant, its use of LEVEL FUNDING on its consumer-facing ma-
terials, consumer declarations asserting recognition of LEVEL FUNDING as a mark,
and evidence of third-party compliance with enforcement efforts that demand appro-
priate use of Applicant’s proposed mark.18 See, for example:
● Ms. Stoddard’s Declaration dated September 23, 2016 stating that various bro-
kers in Arizona, New England, the Mid-Atlantic and the Northwest have stated that

17 Applicant’s brief at p. 13, 14 TTABVUE 18.
18 Id.
Serial No. 86842483
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they recognize LEVEL FUNDING as a service mark of Applicant. (Applicant did not
submit statements directly from these brokers.)19
● Ms. Stoddard’s Declaration dated April 3, 2017 stating:
1. Applicant has substantially exclusive and continuous
use of the service mark Level Fundingsm for nearly ten
years.
2. Applicant’s mark has wide spread recognition in the in-
surance industry. Insurance brokers who are most knowl-
edgeable about insurance products and are a sophisticated
group within the industry, know and associate Level Fund-
ingsm with [Applicant]. …
3. The Applicant has expended approximately 1.7 million
dollars to date promoting the service mark LEVEL FUND-
ING.sm
4. In addition to conventional advertising, the applicant
has sponsored broker education classes and webinars in or-
der to better educate and inform brokers about Cigna’s
Level Fundingsm service.
5. Additionally, the Applicant provides a digital magazine
that describes its product’s success and growth through the
years ….
6. The use and recognition of Applicant’s mark Level Fund-
ingsm, has had substantial growth nationwide that has in-
creased over time.20
● Ms. Stoddard’s November 9, 2017 Declaration stating:
11. Applicant’s LEVEL FUNDING service has been highly
successful in the insurance marketplace. As of September
1, 2017, Applicant’s LEVEL FUNDING service has been
sold to more than 6,000 clients, reaching approximately
825,000 enrollees (consisting of employees and covered de-
pendents) across the United States. Applicant has pro-
duced more than 250,000 quotes, or estimates, concerning

19 September 23, 2016 Response to Office Action, TTABVUE 8.
20 Id., 4 TTABVUE 35.
Serial No. 86842483
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its LEVEL FUNDING service - which were delivered to
thousands of brokers or agents.
12. Further, Applicant’s LEVEL FUNDING service has
also been widely hailed within the self-funding market-
place as financially beneficial to small and mid-sized busi-
nesses, and has received praise from employee benefits pro-
fessionals ….
13. Competitors offer their own versions of partially self-
funded health plan services under different brands. They
include: United Healthcare ’s ALL SAVERS ALTERNATE
FUNDING; Aetna’s FUNDING ADVANTAGE; Anthem
Blue Cross Blue Shield ’s BLUE BALANCED FUNDING;
and Premera Blue Cross’ DEFINED FUNDING. All of
these products are considered competitive with Applicant’s
LEVEL FUNDING health plan services.
14. Applicant’s branded LEVEL FUNDING marketing ma-
terials are provided both to brokers and directly to employ-
ers, and are aimed at reaching smaller employers, gener-
ally with between 50 and 250 employees. Such marketing
materials are distributed through email communication,
presentations and proposals, sales material, website con-
tent, prospect nurturing campaigns, flyers, webinars, and
videos.
15. Applicant has invested substantially in marketing its
LEVEL FUNDING service, with more than $ 1.7 million in
advertising expenditures since 2007.
16. Applicant also provides educational material to bro-
kers. Applicant engages in both local and national training
of brokers, and also provides training upon request in bro-
ker-specific situations.21
● Uses by Applicant of LEVEL FUNDING in promotional materials in a manner
intended as a trademark.22

21 November 9, 2017 Response to Office Action Exh. A, TSDR 20-21.
22 April 12, 2017 Request for Reconsideration, 4 TTABVUE 24-25.
Serial No. 86842483
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● Unsworn emails or letters from 15 employee benefit brokers stating that they
recognize LEVEL FUNDING as one of Applicant’s products.23
● Correspondence from 10 sources cited by the Examining Attorney confirming
corrections or removing articles or postings after receiving letters from Applicant re-
questing the same.24
● An article entitled “Oregon businesses sign up for self-insurance plan” from
Portland Business Journal (Oct. 10, 2008), stating, “Cigna HealthCare is marketing
a product called Level Funding, which combines the benefits of self-insurance and of
regular coverage, and for which employers pay monthly premiums just as with ordi-
nary insurance. The company says it’s the only such product available.”25
● “AetPress news and numbers” from a competitor (Aetna) stating, “[t]he team’s
sale to Touchstone Health Partners, headquartered in Fort Collins, has cracked into
the dominance of Cigna’s Level Funding® product in Colorado.”26
● A Wikipedia entry for “self-funded health care” which does not mention “level
funding.”27
● Wikipedia search results for “level funding” which do not contain any health
insurance industry references.28

23 May 12, 2017 Request for Reconsideration, 4 TTABVUE 7-23.
24 August 31, 2018 Request for Remand Exh. A, 10 TTABVUE 5-76.
25 Id., 4 TTABVUE 26.
26 Id., 4 TTABVUE 31-34.
27 Id., TSDR 203-204.
28 Id., TSDR 206-224.
Serial No. 86842483
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● A glossary from healthcare.gov, which defines a “self-insured plan” but contains
no entry for “level funding.”29
c. Analysis
We consider whether the term “LEVEL FUNDING,” as a whole, is generic for
“self-funded or partially self-funded insurance plans.” “An inquiry into the public’s
understanding of a mark requires consideration of the mark as a whole.” Princeton
Vanguard, 114 USPQ2d at 1831 (quoting In re Steelbuilding.com, 75 USPQ2d at
1421). As mentioned above, a generic term may refer to a category of services. In re
Cordua Rests., 118 USPQ2d at 1638.
The Examining Attorney’s evidence reflects uses of “level funding” by insurance
brokers and agents to refer to “a self-insurance hybrid program which further enables
companies to benefit from the regular and predictable cost of a fully insured plan,
while only paying for the healthcare costs actually incurred by employees.”30 The ev-
idence explains that “level funding” refers to “arrangements” where a stop loss carrier
is responsible for all claims over an expected amount and the employer does not pay
claims each month but pays a fixed monthly amount, and if at the end of the year,
the total claims paid are less than the total benefit amount paid by the employer, the
employer gets a refund of the difference.31 As such, the level funding programs dis-

29 Id., TSDR 225.
30 October 15, 2018 Office Action, TSDR 15.
31 Id., TSDR 13.
Serial No. 86842483
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cussed in the Examining Attorney’s evidence — most of which does not mention Ap-
plicant — are within the definition of self-funded or partially self-funded insurance
discussed by Ms. Stoddard. In her November 9, 2017 Declaration, she states that in
partially self-funded insurance plans, employers pay for employee claims up to a
threshold amount and use “stop-loss” insurance to protect against “catastrophic” and
higher-than-expected enrollee medical claims.32 Ms. Stoddard adds that Applicant’s
partially self-funded health plans and services offer predictable monthly costs and
the ability of an employer to share in the surplus if medical claims are lower than
expected.33
The Examining Attorney’s evidence includes examples which directly indicate
that “level funding” is a category of self-funded insurance. See, e.g., Smart Business
Pittsburgh article stating “[s]elf funding is not a new concept; but it is new to the
smaller employer – with many insurance companies offering level-funding premium
options (a form of self-funding) to groups with as few as 10 insured employees”;34
Record Searchlight webpage stating that level funding concepts are a hybrid of par-
tial self-funding;35 and PriorityHealth webpage stating that a “unique benefit of Level
Funding: if claims paid by Priority Health are less than the funds paid by the em-
ployer, Priority Health will send a check to the employer for the overages.”36

32 Stoddard Decl. at ¶¶ 9-10, November 9, 2017 Response Exh. A, TSDR 19-20.
33 Id.
34 “Strategy and analysis” (Feb. 1, 2017), May 9, 2017 Office Action, TSDR 9.
35 October 15, 2017 Office Action, TSDR 27.
36 December 5, 2017 Office Action, TSDR 12.
Serial No. 86842483
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Applicant’s arguments and evidence do not persuade us that LEVEL FUNDING
is not a generic term for Applicant’s identified services. First, Applicant argues that
its competitors use other terms than “level funding” for self-funded or partially self-
funded insurance;37 and Ms. Stoddard states that “[c]ompetitors offer their own ver-
sions of partially self-funded health plan services under different brands.”38 Further,
Aetna, a competitor, refers to “Cigna’s Level Funding® product” in its materials.39
However, notwithstanding that competitors use other terms to identify the stated
genus, the term may still be generic because “[t]here is usually no one, single and
exclusive generic name for a product. Any product may have many generic designa-
tions. Any one of those is incapable of trademark significance.” J. Thomas McCarthy,
2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 12:9 (5th ed. Sept. 2020
Update). Also, the fact that Applicant may be the first user of a generic designation
does not justify registration if the only significance conveyed by the term is that of a
category of goods or services.40 See In re Empire Tech, Dev. LLC, 123 USPQ2d 1544,
1549 (TTAB 2017) (citing In re Greenliant Systems Ltd., 97 USPQ2d 1078, 1083
(TTAB 2010); see also In re Merrill Lynch, Pierce, Fenner, & Smith, 4 USPQ2d at 1142

37 Applicant’s brief at pp. 10-11, 14 TTABVUE 15-16.
38 November 9, 2017 Stoddard Decl. ¶ 13, November 9, 2017 Resp. to Office Action, TTABVUE
20.
39 May 12, 2017 Req. for Recon., 4 TTABVUE 31-34.
40 Similarly, we are not troubled by the evidence from Wikipedia and healthcare.gov which
does not show entries for “level funding.” See Exh. E to November 9, 2017 Response to Office
Action, TSDR 203-204, 225.
Serial No. 86842483
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(“To allow trademark protection for generic terms, i.e., names which describe the ge-
nus of goods being sold, even when these have become identified with a first user,
would grant the owner of the mark a monopoly, since a competitor could not describe
his goods as what they are.”); In re Preformed Prods. Co., 323 F.2d 1007, 139 USPQ
271, 273 (CCPA 1963) (exclusive use, even when coupled with “large sales volume of
such goods and its substantial advertising expenditure … cannot take the common
descriptive name of an article out of the public domain and give the temporarily ex-
clusive user of it exclusive rights to it, no matter how much money or effort it pours
into promoting the sale of the merchandise”) (quoting J. Kohnstam, Ltd. v. Louis
Mark & Co., 280 F.2d 437, 126 USPQ 362, 364 (CCPA 1960)).
In addition, Applicant’s arguments and evidence regarding competitors must be
weighed against the Examining Attorney’s evidence, including the webpages from
Blue Cross and Blue Shield (Kansas City), which refer to “Blue KC’s Level Funding
ASO options.”41
Second, Applicant argues that its enforcement efforts have been successful; and
that “nearly half of the references … cited at the time Applicant submitted its June 5,
2018 Request for Reconsideration have since been corrected or removed entirely.”42
While Applicant may have had some success with certain brokers, consultants and

41 October 15, 2018 Office Action, TSDR 19. The Blue Cross Blue Shield (Kansas City)
webpage states, “Blue KC will help you evaluate your maximum claims risk and then blend
specific and aggregate stop-loss insurance to create level funding you can budget for each
month.” Id. Applicant has not specifically addressed this webpage in its briefs.
42 Applicant’s Reply at p. 4, 24 TTABVUE 5.
Serial No. 86842483
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media, resulting in ten entities complying with Applicant’s requests, there is no evi-
dence that other users revealed by the Examining Attorney’s evidence stopped using
the phrase “level funding.” The fact that some entities have complied with Applicant’s
requests to use “partially self-funded” and not “level funding” fails to persuade us
that the consuming public would not primarily understand “level funding” to refer to
a type of insurance product. See In re Hikari Sales USA, Inc., 2019 USPQ2d 111514,
at *9-10 (TTAB 2019) (“[T]he fact that some of these competitors changed the names
of their products or removed the term from marketing materials or a webpage does
not convince us that the term functions as Applicants ’ trademark or that the public
would not primarily understand ‘Algae Wafers’ to refer to a type of fish food.”) (citing
In re Wella Corp., 565 F.2d 143, 196 USPQ 7, 8 n.2 (CCPA 1977) (evidence that com-
petitors may have agreed to discontinue use of a term upon threat of legal action
shows a desire by those competitors to avoid litigation, rather than distinctiveness of
the term); In re Volvo White Truck Corp., 16 USPQ2d 1417, 1421 (TTAB 1990) (rec-
ognizing that competitors may stop using a term to avoid a costly lawsuit rather than
because they recognize the term as a trademark)). In addition, Applicant’s policing
efforts appear to be directed to only those uses located by the Examining Attorney;
there is no evidence of policing of uses not the subject of the Examining Attorney’s
evidence, suggesting that Applicant’s policing efforts were driven by the refusal, be-
ginning just six months before Applicant filed its appeal brief.
Third, Applicant argues that the record includes “strong and consistent evidence
of consumer recognition” of the proposed mark with Applicant, mentioning its use of
Serial No. 86842483
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its proposed mark on consumer-facing materials, “consumer declarations” and its en-
forcement efforts.43 The consumer-facing materials number fewer than ten and there
are no “consumer declarations” – there are unsworn emails or letters from 15 em-
ployee benefit brokers. Ms. Stoddard’s statement in her September 23, 2016 Declara-
tion44 regarding what brokers in Arizona, New England and the Mid-Atlantic and the
Northwest have stated has limited probative value because in addition to being hear-
say, there is no indication of the identity of these brokers or whether they are the
same brokers that submitted the emails and letters in the record, and how many they
number. In addition, there are no statements from the ultimate consumer, the busi-
nesses which purchase insurance of the type identified in the identification of ser-
vices.
Fourth, Applicant argues, with evidentiary support from Ms. Stoddard’s April 3,
2017 Declaration, that “sophisticated insurance brokers are the relevant class of con-
sumers of Applicant’s LEVEL FUNDINGSM insurance product.”45 Ms. Stoddard’s rep-
resentation about the sophisticated nature of consumers does not undercut generic-
ness in this case. The evidentiary record includes generic use of Applicant’s proposed
mark within the insurance industry, which the purchasers Applicant deems sophis-
ticated would be accustomed to seeing. There is no basis to find that even relatively

43 Applicant’s brief at p. 13, 14 TTABVUE 18.
44 September 23, 2016 Response, TSDR 8.
45 Reply at p. 2, 24 TTABVUE 3.

Serial No. 86842483
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sophisticated purchasers would understand LEVEL FUNDING as anything other
than a generic term for Applicant’s services.
After carefully considering all of the arguments and evidence of record, we find
that purchasers of “self-funded or partially self-funded insurance plans” understand
the term “level funding” as a designation that primarily refers to a category within
the genus of “self-funded or partially self-funded insurance plans,” and that the pro-
posed mark is generic. See In re Cordua Rests., 118 USPQ2d at 1638; Marvin Ginn,
228 USPQ at 530. Despite Applicant’s argument to the contrary, this is not a “mixed
record” case, compelling a finding of non-genericness. Cf. In re Merrill Lynch, Pierce,
Fenner & Smith, 4 USPQ2d at 1143 (use of “mixed” evidence insufficient to support
a finding of genericness). There is not the quantity of evidence in this case that there
was in Merrill Lynch reflecting consumer recognition of LEVEL FUNDING as a mark
for the involved services, only one competitor, Aetna, has recognized LEVEL FUND-
ING as a mark, and there is no evidence that the ultimate consumer of Applicant’s
services — businesses — recognize LEVEL FUNDING as a mark. Because the pro-
posed mark LEVEL FUNDING is generic when used in connection with the services
identified in the application, it is not registrable on either the Principal or Supple-
mental Registers.
2. Mere Descriptiveness

For completeness, we address the alternative refusal under Section 2(e)(1), pre-
cluding registration of “a mark which, (1) when used on or in connection with the
goods [or services] of the applicant is merely descriptive . . . of them.” A term is merely
Serial No. 86842483
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descriptive within the meaning of the statute “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. 2017) (quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007)); see also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575
(Fed. Cir. 2015). Descriptiveness must be assessed “in relation to the goods [and ser-
vices] for which registration is sought, the context in which it is being used, and the
possible significance that the term would have to the average purchaser of the goods
[or services] because of the manner of its use or intended use.” Bayer AG, 82 USPQ2d
at 1831 (citing In re Abcor Dev., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)).
Applicant has not addressed the merely descriptive refusal in its appeal brief. Ap-
plicant only argued that its proposed mark was not generic and that it has established
acquired distinctiveness.46 Applicant therefore has waived its appeal of the Examin-
ing Attorney’s refusal of registration under Section 2(e)(1) on the basis of mere de-
scriptiveness. See In re Katch, LLC, 2019 USPQ2d 233842 (TTAB 2019) (waiver be-
cause “Applicant presents no arguments that HEALTHPLANS.COM is registrable as
inherently distinctive on the Principal Register ….” (citing In re Harley, 119 USPQ2d
1755, 1758 (TTAB 2016) (Applicants’ failure to address any of the grounds for refusal
is a basis for affirming the examining attorney's refusal on all grounds)); TBMP
§ 1203.02(g) (2018) (“If an applicant, in its appeal brief, does not assert an argument

46 14 TTABVUE.
Serial No. 86842483
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made during prosecution, it may be deemed waived by the Board.”)).47 In any event,
because the Federal Circuit has stated that “[t]he generic name of a thing is in fact
the ultimate in descriptiveness,” Marvin Ginn, 228 USPQ at 530, our finding that the
mark is generic subsumes a finding that it is descriptive.
Even though Applicant has waived its appeal of the mere descriptiveness refusal,
we must address the degree of descriptiveness because that bears on the quantity and
quality of evidence required to prove acquired distinctiveness, which we discuss be-
low. See Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1045
(Fed. Cir. 2018) (instructing Board to first determine whether a proposed mark is
highly descriptive rather than merely descriptive before assessing acquired distinc-
tiveness); Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d
1370, 1378 (Fed. Cir. 2018) (same).
We find the proposed mark highly descriptive in view of the entire record and for
the reasons set out above in the genericness discussion. The clarity, quality and quan-
tity of the Examining Attorney’s evidence persuades us that a mental leap is not
needed to determine that the proposed mark refers to a feature of Applicant’s identi-
fied services. See, e.g., Soules Insurance Agency Blog “Level-funding Growing in Pop-
ularity Among Employers,” (“with level-funding, employers pay a set amount each
month to a healthcare services company …”);48 and Crain’s Detroit Business “Self-

47 Applicant argued against the mere descriptiveness refusal in its reply brief, arguing that
consumers must make a mental leap to determine the nature of the services and that “level”
has no directed meaning in relation to the involved services. Reply at p. 6, 24 TTABVUE 7.
This first presentation of its arguments is late. See TBMP § 1203.02(g).
48 October 15, 2018 Office Action, TSDR 15.
Serial No. 86842483
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funded health plans: A new frontier for small businesses?” (September 15, 2014),
(“Level funding works like fully insured plans, with employers paying monthly pre-
miums for set benefits …. ).”49 In view of the proposed mark’s highly descriptive na-
ture, Applicant has a higher burden to establish acquired distinctiveness. In re Guar-
anteed Rate, Inc., 2020 USPQ2d 10869, *4 (TTAB 2020).
3. Acquired Distinctiveness
Applicant claims acquired distinctiveness in the alternative under Section 2(f).
For the sake of completeness, we consider whether Applicant’s asserted mark has
acquired distinctiveness based on the entire record, keeping in mind that “[t]he ap-
plicant ... bears the burden of proving acquired distinctiveness.” In re La. Fish Fry
Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (citation omit-
ted).
Because we have found the proposed mark highly descriptive, Applicant ’s burden
of establishing acquired distinctiveness under Section 2(f) is “commensurately high.”
In re Virtual Independent Paralegals, LLC, 2019 TTAB LEXIS 74, 2019 WL 111512,
*11 (TTAB 2019) (citing cases). See also, e.g., Royal Crown, 127 USPQ2d at 1048
(“[H]igher levels of descriptiveness require a more substantial showing of acquired
distinctiveness.”); Steelbuilding.com, 75 USPQ2d at 1424 (“[A]pplicant’s burden of
showing acquired distinctiveness increases with the level of descriptiveness; a more
descriptive term requires more evidence of secondary meaning.”); In re Bongrain Int'l
Corp., 894 F.2d 1316, 13 USPQ2d 1727, 1727 n.4 (Fed. Cir. 1990) (quoting Yamaha

49 July 5, 2018 Office Action, TSDR 4.
Serial No. 86842483
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Int’l Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1008 (Fed. Cir.
1988) (“the greater the degree of descriptiveness the term has, the heavier the burden
to prove it has attained secondary meaning”)); In re Tires, Tires, Tires Inc., 94
USPQ2d 1153, 1157 (TTAB 2009) (highly descriptive terms are less likely to be per-
ceived as trademarks, and therefore more persuasive evidence of secondary meaning
will ordinarily be required to establish their distinctiveness).
The following six factors inform whether a mark has acquired secondary meaning:
(1) association of the trade[mark] with a particular source
by actual purchasers (typically measured by consumer sur-
veys); (2) length, degree, and exclusivity of use; (3) amount
and manner of advertising; (4) amount of sales and number
of customers; (5) intentional copying; and (6) unsolicited
media coverage of the product embodying the mark … All
six factors are to be weighed together in determining the
existence of secondary meaning.
Converse, Inc. v. Int’l Trade Comm’n, 907 F.3d 1361, 128 USPQ2d 1538, 1546 (Fed.
Cir. 2018).
Applicant relies on the following in support of its Section 2(f) claim:
● Applicant has used the mark LEVEL FUNDING℠ in
connection with its applied for services for more than 11
years. … December 8, 2015 Trademark Application (show-
ing first use date of October 1, 2007).
● Applicant has spent in excess of $1.7 million dollars to
promote its LEVEL FUNDING℠ services. … November 9,
2017 Office Action Response, TSDR p. 34.
● Applicant’s LEVEL FUNDING℠ plan has been sold to
nearly 6,000 clients with over 825,000 plan enrollees. …
[I]d. at TSDR p. 33.
● Applicant distributes LEVEL FUNDING℠-branded ma-
terials (both marketing and educational) to brokers and cli-
ents. … [I]d. at TSDR pp. 33-34.
Serial No. 86842483
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● Brokers in the insurance industry recognize LEVEL
FUNDING℠ as a source indicator. … September 23, 2016
Office Action Response, TSDR p. 11 and April 12, 2017 Of-
fice Action Response, TSDR pp. 7-23.50
Given the highly descriptive nature of Applicant ’s proposed mark, we find the ev-
idence insufficient to show acquired distinctiveness. Applicant offered no details
about its advertising or context. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118
USPQ2d 1464, 1480 (TTAB 2016) (probative value of sales revenue figures quantified
as doses sold is diminished by the fact that the amount is just a raw number without
context as to applicant’s market share or whether this amount is significant in the
industry). It offered only total advertising expenses, a reference to a digital magazine,
pages from its website and some promotional materials in either printed or electronic
format. We have no sense of the extent of consumer exposure to the advertising. As
for unsolicited media coverage, Ms. Stoddard offers only one article in the Portland
Business Journal, with no information about its circulation or readership. “Thus, we
are at a disadvantage to accurately gauge the degree of exposure and the achievement
of distinctiveness among the relevant classes of purchasers.” Apollo Med. Extrusion
Techs., 123 USPQ2d at 1855-56. The record is silent about any intentional copying.
Under the second Converse factor, Applicant’s 11 years of use is not particularly
long and, while Ms. Stoddard has identified four competitors (United Healthcare,
Aetna, Anthem Blue Cross Blue Shield and Primera) which use different brands for

50 Applicant’s brief at pp. 15-16, 14 TTABVUE 20-21. Much of Applicant’s evidence of ac-
quired distinctiveness comes from Ms. Stoddard’s April 3, 2017 Declaration and exhibits,
submitted with the April 12, 2017 Request for Reconsideraton, TSDR 32.
Serial No. 86842483
- 28 -
their versions of partially self-funded health plans, she is silent as to how many com-
petitors Applicant has, and whether these competitors use “level funding” in a de-
scriptive or generic manner. We note here too Blue Cross Blue Shield (Kansas City)’s
use of “level funding.”51 “When the record shows that purchasers are confronted with
more than one ... independent users of a term or device, an application for registration
under Section 2(f) cannot be successful, for distinctiveness on which purchasers may
rely is lacking in such circumstances.” Levi Strauss & Co. v. Genesco, Inc., 742 F.2d
1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984); see also Target Brands Inc. v. Hughes,
85 USPQ2d 1676, 1682 (TTAB 2007).
Also, the statements from brokers — who likely have business relationships with
Applicant — have little value because they are not under oath and there is no indica-
tion of what portion of the purchasing public these individuals comprise.52 See In re
Pennzoil Products Co., 20 USPQ2d 1753, 1758 (TTAB 1991) (form declarations from
nine marketers of oil products who have business relationships with the applicant
“lack persuasiveness on the issue of the primary significance of the [proposed mark]
to the purchasing public.”). There are no statements from the ultimate purchasers
such as small companies insured by Applicant. While Applicant’s 6,000 clients and
over 825,000 plan enrollees suggest that it has achieved some success in the industry,
the evidence does not convince us that this translates to consumer recognition of this

51 October 15, 2018 Office Action, TSDR 19.
52 Applicant misstates in its brief that the broker statements are “declarations.” See Appli-
cant’s brief at p. 11, 14 TTABVUE 11. They were not made under oath and hence are not
declarations.
Serial No. 86842483
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at best highly descriptive proposed mark. See In re Boston Beer Co. L.P., 198 F.3d
1370, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999) (claim based on annual sales under the
mark of approximately eighty-five million dollars, and annual advertising expendi-
tures in excess of ten million dollars, not sufficient to establish acquired distinctive-
ness in view of highly descriptive nature of the mark); In re Melville Corp., 228 USPQ
970, 972 (TTAB 1986) (affirming the rejection of Section 2(f) claim, despite substan-
tial advertising and revenue figures, given “the absence of any direct evidence that
the purchasing public has come to recognize applicant’s slogan as a term identifying
applicant’s services”). Even though Applicant has established 11 years of use, and
Applicant has averred that such use has been substantially exclusive, we find that
given the highly descriptive nature of Applicant’s proposed mark , much more persua-
sive evidence than Applicant has submitted would be necessary to show that LEVEL
FUNDING has become distinctive as a source indicator for Applicant ’s services. Cf.
In re Boston Beer, 53 USPQ2d at 1058; In re Guaranteed Rate, 2020 USPQ2d at *10
(The record in this case reflects that, notwithstanding Applicant ’s substantial efforts,
the public, including Applicant's competitors, still primarily use and understand the
term ‘guaranteed rate’ to describe a feature of mortgage lending services.”).
4. Doubts
Applicant states that any doubts should be resolved in its favor. We have no
doubts as to the genericness of the proposed mark, and if not generic, its mere de-
scriptiveness and Applicant’s failure to established acquired distinctiveness.
Serial No. 86842483
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Decision: We affirm the refusal to register Applicant ’s proposed mark on the
ground that it is a generic designation of the identified services, and in the alterna-
tive, we affirm the refusal to register on the ground that the mark is merely descrip-
tive and without acquired distinctiveness.