HCA Franchise Corporation

Trademark Trial and Appeal Board

Nov 5, 2018

No. 87132500 (T.T.A.B. Nov. 5, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: November 5, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re HCA Franchise Corporation
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Serial No. 87132500
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Daniel H. Bliss of Howard & Howard Attorneys PLLC,
for HCA Franchise Corporation.
Geoffrey Fosdick, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
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Before Cataldo, Kuczma and Goodman,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
HCA Franchise Corporation (“Applicant”) seeks registration on the Supplemental
Register of the proposed mark HOME CARE ASSISTANCE (in standard characters)
for
Franchise services, namely, offering business management
in the establishment and operation of businesses offering
support services for mentally or physically challenged
people; franchise services, namely, advice in the running of
establishments as franchises in the field of business
offering support services for mentally or physically
challenged people; franchise services, namely, business
consulting in the field of establishing guidelines for the
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establishment and operation of businesses offering support
services for mentally or physically challenged people in
International Class 35; and
Training others in the field of establishing and operating
businesses offering support services for mentally or
physically challenged people in International Class 41.1
The Trademark Examining Attorney has refused registration of Applicant’s
proposed mark under Trademark Act Sections 23(c) and 45, 15 U.S.C. §§1091(c),
1127, on the basis that HOME CARE ASSISTANCE is generic for the identified
services.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We reverse the refusal to register.
I. Genericness
“In order to qualify for registration on the Supplemental Register, a proposed
mark ‘must be capable of distinguishing the applicant’s goods or services.”’ In re
Emergency Alert Sols. Grp., LLC, 122 USPQ2d 1088, 1089 (TTAB 2017) (quoting 15
U.S.C. § 1091(c)). Generic terms do not qualify for registration because
“by definition [they] are incapable of indicating a unique source.” In re La. Fish Fry
Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262, 1267 (Fed. Cir. 2015) (citing In re

1 Application Serial No. 87132500 was filed on August 9, 2016 seeking registration on the
Supplemental Register, claiming February 2004 as a date of first use and use in commerce
for its Class 35 and 41 services.

Page references to the application record are to the online (non-downloaded) version of the
USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs
on appeal are to the Board’s TTABVUE docket system.

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Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142
(Fed. Cir. 1987)) (“Generic terms, by definition incapable of indicating source, are the
antitheses of trademarks, and can never attain trademark status.”); see also Clairol,
Inc. v. Roux Distrib. Co., 280 F.2d 863, 126 USPQ 397, 398 (CCPA 1960) (“The generic
name by which a product is known is not a mark which can be registered on the
Supplemental Register under [S]ection 23 because such a name is incapable of
distinguishing applicant’s goods from goods of the same name manufactured or sold
by others.”).
A term is generic if it refers to the class or category of goods or services on or in
connection with which it is used. In re Dial-A-Mattress Operating Corp., 240 F.3d
1341, 57 USPQ2d 1807 (Fed. Cir. 2001) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of
Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986)). Whether a term is
generic “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.
“The critical issue in genericness cases is whether members of the relevant public
primarily use or understand the term sought to be protected to refer to the genus of
goods or services in question.” Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc.,
786 F.3d 960, 114 USPQ2d 1827, 1830 (Fed. Cir. 2015) (quoting Marvin Ginn, 228
USPQ at 530).
As to the first part of the inquiry, the Examining Attorney asserts that the genus
is based on the services as identified in each International Class, while Applicant
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argues that the genus should be more broadly construed as “franchising services and
training services.”2 Because the determination of genericness must focus on the
description of services as set forth in the application, see In re Cordua Rests. LP, 823
F.3d 594, 118 USPQ2d 1632, 1636 (Fed. Cir. 2016), the identification of goods or
services is often viewed as the genus. We see no reason to deviate from that approach
in this case and find the services in the identification sufficiently identify the genus.
As part of the second inquiry, we consider the public’s understanding of the mark
as a whole. In re American Fertility Society, 188 F.3d 1341, 51 USPQ2d 1832, 1836-
37 (Fed. Cir. 1999). “Evidence of the public’s understanding of a term may be obtained
from ‘any competent source, such as consumer surveys, dictionaries, newspapers and
other publications.’” Princeton Vanguard, 114 USPQ2d at 1830 (quoting In re
Northland Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir.
1985)) (BUNDT is not registrable for “ring cake mix,” citing numerous cookbook
recipes and newspaper articles). An examining attorney must establish with “clear
evidence” that a proposed mark is generic. La. Fish Fry Prods., 116 USPQ2d at 1264
(citing In re Merrill Lynch, 4 USPQ2d at 1143).
Based on the recitation of services as well as the Internet articles in the record
(franchising publication, business journals and franchising website) provided by the
Applicant that mention or discuss its franchising and training services, the relevant
purchasing public would be those interested in franchising and the related training

2 In its reply brief Applicant agrees that “the recitation appropriately expresses the genus of
services at issue.”10 TTABVUE 3.
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services provided by the franchisor. We now consider the evidence of the relevant
public’s understanding of the proposed mark.
In support of his contention that HOME CARE ASSISTANCE is generic, the
Examining Attorney has referenced the following evidence:
Dictionary Definitions and Wikipedia:
1. The definition of HOME CARE3:

“services (as nursing or personal care) provided to a homebound
individual (as one who is convalescing, disabled, or terminally ill),”
(merriam-webster.com).

2. The definition of ASSISTANCE:
“the act of helping or assisting someone or the help supplied,” (merriam-
webster.com). June 7, 2017 Office Action at 2.

3. A Wikipedia entry for HOME CARE:

‘“Home care,’ ‘home health care’ and ‘in home care’ are phrases that have
been used interchangeably in the United States to mean any type of
care—skilled or otherwise—given to a person in their own home.”
November 25, 2016 Office Action at 12.

“Home Care is supportive care provided in the home. … The largest
segment of Home Care consists of licensed and unlicensed non-medical
personnel including care givers who assist the individuals. Care
assistants may help the individual with daily tasks such as bathing,
eating, cleaning the home and preparing meals. Caregivers work to
support the needs of individuals who require such assistance. These

3 In his June 7, 2017 Office Action at 1, the Examining Attorney relies on and references the
definition for “Home Care” from merriam-webster.com but failed to submit it into the record.
We take judicial notice of the definition. The Board may take judicial notice of dictionary
definitions, including online dictionaries that exist in printed form or regular fixed editions.
Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982),
aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375,
1377 (TTAB 2006).

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services help the client stay at home versus living in a facility.” Id. at
11.

Internet evidence:4

4. a webpage from synergyhomecare.com. Under the heading “Transfer
Assistance,” it states “If your loved one struggles with getting in and out of bed
or a wheelchair, our assisted living caregivers have specialized training in how
to safely provide this home care assistance.” November 25, 2016 Office Action
at 16-17.

5. a webpage from kindredathome.com that is titled “Personal Home Care
Assistance” offering services that include:

Personal Home Care Assistance
…Kindred At Home Personal Care Assistance can help. An attentive
compassionate caregiving team will enable you to maintain your regular
daily activities in the familiar, comfortable surroundings of your own
home. Home Care begins with highly trained professional caregivers …
Perhaps you would like a caregiver to provide … assistance during the
night or on weekends. Id. at 2.
Applicant references the following evidence as support that “Home Care Assistance”
is not generic:

Dictionary definitions:
1. The definition of CARE:
“things that are done to keep someone safe and healthy etc.” May 17, 2017
Response to Office Action at 18. (merriam-webster.com).
2. The definition of ASSISTANCE:
“the act of helping or assisting someone: help or support.” (merriam-
webster.com) Id. at 20.

4 The Examining Attorney also provided a webpage from mass.gov which is titled “Home Care
Assistance Program (HCAP) for Those Over 60” and a webpage from selfhelpelderly.org
which is titled “Home Care Assistance.” November 25, 2016 Office Action at 5, 10. These
webpages are of limited probative value because they lack sufficient context for us to
determine therefrom the manner in which the term HOME CARE ASSISTANCE would be
perceived.

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3. The definition of HOME:

“a place where one lives.” (freedictionary.com).5 Id. at 8; 7 TTABVUE 7.

Third party registrations:

4. Reg. No. 4025172 (Family Care Homes The Franchise Leader in Assisted Care
Living and design, “Family Care Homes The Franchise Leader in Assisted
Care Living” disclaimed), Reg. No. 4669430 (Assisted Living Locators, Section
2(f)), Reg. No. 4680962 (The Right Care, Right at Home), Reg. No. 4444819
(Home Options and design, “Home” disclaimed). May 17, 2017 Response to
Office Action at 42-48.

5. Applicant also submitted various articles or press releases that include
mentions of Applicant for the purpose of showing public identification with
Applicant and its mark, three of which are excerpted below:

Home Care Assistance was founded to serve as a comprehensive
alternative to a nursing home or assisted living facility for older adults.
Our constant mission to provide the highest quality most reliable home
care service has allowed us to successfully operate North America’s
referred brand in home care … franchisegator.com Senior Care
Company Partners with Long-Term-Care Insurance Provider. May 17,
2017 Response to Office Action at 25.

“Larry Levine who owns the Massachusetts franchise of California-
based Home Care Assistance, credits effective marketing with boosting
his business … those are the people making purchasing decisions for
home care for their parents …” Boston Business journal
(bizjournals.com), Aging Population Increases Demand for Home Care,
Id. at 31.

“Offering daily care for elderly clients who prefer to stay at home,
private home care providers assist clients with daily needs … Live-in
assistance ranges from $200 to $240 per day, but the flexibility of private
home care can be ideal for baby boomers who are juggling careers,
children and their aging parents.” Atlanta Business Chronicle,
(bizjournals.com), Home Care Agencies Expected to Flourish. Id. at 28-
29.

5 In the May 17, 2017 Office Action and in its brief, Applicant references the definition for
“home” from freedictionary.com, but the definition was not submitted into evidence. We take
judicial notice of the definition. See n.2.
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We also look at Applicant’s specimen, which consists of webpages advertising its
services. One webpage states that it offers franchising opportunities in the “senior
home care industry.” Specimen at 2. A webpage for seeking inquiry into its franchise
services includes the seals:
. Id. at 4. Another webpage describes
the services offered by its franchisees:
For convenience, Home Care Assistance offers two types of services; live
in and hourly care … We offer in-home care 24 hours a day, 7 days a
week. A caregiver comes to your home and stays around the clock, ready
to assist with activities of daily living. Id. at 11.
For more flexible care options, Home Care Assistance also offers
“hourly” caregivers for those who may only need assistance during
certain times of the day, night or weekends. Id.

The webpage for training services, which is titled “Training for Home Care
Franchisees and Caregivers” states:
Our franchise training and support system is unparalleled in the home
care industry and we believe it is part of the reason for our continued
success. Id. at 6.
The specimen also states under Training|Home Care Franchise Opportunities
that:
At Home Care Assistance, we put our home care franchise owners in a
position for success. Id. at 7.
The record shows that “home care” is a unitary generic term used to describe a
type of caregiver service provided in someone’s home. It also has been used
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generically in Applicant’s specimen. The record also shows that “assistance” is a
generic term used to describe the type of services that home care providers offer.
Applicant argues that there is no dictionary definition of “home care assistance”
to establish that the term is generic. “But the presence or absence of a term in
dictionaries is not controlling on the question of whether a term is generic.” In re
ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1603 (TTAB 2014). Applicant also
contends that the Examining Attorney failed to demonstrate by clear evidence that
“home care assistance” is used to describe its involved services.
In particular, Applicant submits that the information from online sources cited by
the Examining Attorney fails to show a single reference to “home care assistance” in
connection with franchise and training services. However, the Board has often held
that a term that names the “central focus” or “key aspect” of a service is generic for
the service itself, and the Board’s principal reviewing court has approved this
approach. See In re Cordua Rests., 118 USPQ2d at 1632. (“[A] term can be generic for
a genus of goods or services if the relevant public understands the term to refer to a
key aspect of that genus.”).
II. Analysis
As stated, we must consider whether the evidence establishes the meaning the
relevant purchasing public accords to the proposed mark as a whole. First, we note
that the Examining Attorney’s evidence of uses of “home care assistance” is on an
extremely limited record, consisting of webpages from four websites. We indicated,
n.3, that two of the websites lack probative value because they lack context. As to the
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remaining website evidence, the webpage from the kindredathome.com website has
limited probative value not only because “home care assistance” is used with
additional terms and capitalized i.e., “Personal Home Care Assistance” and “Kindred
at Home Personal Care Assistance,” but also because this company does not appear
to offer franchise and training services. Thus, we are left with one website making
generic use of the term “home care assistance,” in connection with home care support
services.6
We find, based on the limited evidence of record, that the Office has not met the
difficult burden of establishing by clear evidence that the designation “Home Care
Assistance” as a whole is generic for the identified services. See In re Merrill Lynch,
4 USPQ2d at 1143. Genericness is a fact-intensive determination, and the Board's
conclusion must be governed by the record that is presented to it. We are constrained
to resolve any doubts raised by the limited evidence in an applicant’s favor. Id. On a
different and more complete record, such as might be adduced by a competitor in a
cancellation proceeding,7 we might arrive at a different result on the issue of
genericness.

6 One of the submitted webpages for this third-party has a link to “own a franchise,” but the
Examining Attorney did not include the page for this link. November 25, 2016 Office Action
at 7. Applicant, although not obligated to, did not submit that page either.
7 “[A] a mark seeking supplemental registration, unlike principal registration, ‘shall not be
published for or be subject to opposition.’ 15 U.S.C. § 1092. But see id. (explaining further
that a mark seeking registration on the supplemental register is still subject to cancellation
proceedings).” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., __ F.3d. __, 128 USPQ2d 1370,
1379 n.8 (Fed. Cir. 2018).
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Decision: The refusal of registration of HOME CARE ASSISTANCE on the
Supplemental Register is reversed.