High Energy Athletic Training Inc.

Trademark Trial and Appeal Board

Apr 18, 2018

No. 86578321 (T.T.A.B. Apr. 18, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 18, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re High Energy Athletic Training Inc.
_____

Serial No. 86578321
_____

Jeffrey Racho, Esq.,
for High Energy Athletic Training Inc.
Tracy Whittaker-Brown, Trademark Examining Attorney, Law Office 111,
Robert L. Lorenzo, Managing Attorney.
_____

Before Cataldo, Kuczma, and Masiello,
Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:
High Energy Athletic Training Inc. (“Applicant”) seeks registration on the
Supplemental Register of the proposed mark shown below:1

1 Application Serial No. 86578321 was filed on March 27, 2015, requesting registration on
the Principal Register on the basis of Applicant’s asserted use of the mark in commerce under
Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and stating August 1, 2009 as the date of
first use and first use in commerce. On February 22, 2017, Applicant amended its application
to seek registration on the Supplemental Register.
Serial No. 86578321
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Applicant seeks registration of the proposed mark for the following services:
Conducting fitness classes; Consulting services in the fields
of fitness and exercise; Fitness boot camps; Personal fitness
training services and consultancy; Personal fitness
training services; Physical fitness instruction; Physical
fitness training services; Physical fitness training of
individuals and groups; Providing fitness and exercise
facilities, in International Class 41.
Applicant has disclaimed the exclusive right to use BOOTCAMP apart from the mark
as shown. The colors red, white, and black are claimed as features of the mark.
The Examining Attorney has refused registration under Sections 23 and 45 of
the Trademark Act, 15 U.S.C. §§ 1091 and 1127, on the ground that Applicant’s
proposed mark is generic and therefore incapable of distinguishing the identified
services. When the Examining Attorney made the refusal final, Applicant appealed
to this Board. The case is fully briefed.
In order to qualify for registration on the Supplemental Register, a proposed
mark “must be capable of distinguishing the applicant’s goods or services.” 15 U.S.C.
§ 1091(c). Generic terms do not so qualify. “[G]eneric terms by definition 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 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 antithesis of trademarks,
and can never attain trademark status.”)). A proposed mark 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
Serial No. 86578321
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528 (Fed. Cir. 1986) (“Marvin Ginn”)). The test for determining whether a mark is
generic is its primary significance to the relevant public. In re Am. Fertility Soc’y, 188
F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic Wand Inc. v. RDB Inc., 940 F.2d
638, 19 USPQ2d 1551 (Fed. Cir. 1991); Marvin Ginn, supra; see also In re Cordua
Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1634 (Fed. Cir. 2016). “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).
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. The Examining Attorney has the burden of establishing by
clear evidence that a proposed mark is generic. In re Merrill Lynch, 4 USPQ2d at
1143; In re Am. Fertility Soc’y, 51 USPQ2d at 1835. We consider the proposed mark
as a whole. See Princeton Vanguard, 114 USPQ2d at 1831 (citing In re
Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005)).
Our first step, under Marvin Ginn, is to determine the genus of Applicant’s
services. The identification of services in the application sets forth in clear language
several types of services that are well-known to most consumers in the United States.
Accordingly, the identification of services is a suitable expression of the genera of
services at issue. See Magic Wand, 19 USPQ2d at 1552 (“a proper genericness inquiry
Serial No. 86578321
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focuses on the description of services set forth in the [application or] certificate of
registration”) (citing Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d
937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)). In our analysis, we will focus on the
services identified as “Physical fitness instruction” and “Physical fitness training of
individuals and groups.” We need not address each separately identified service
because “[a] registration is properly refused if the word is the generic name of any of
the goods or services for which registration is sought.” In re Cordua Rests., 118
USPQ2d at 1638 (quoting 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION
§ 12:57 (4th ed. 2016)).
Next we consider whether “heat bootcamp” is understood by the relevant public
primarily to refer to physical fitness instruction or physical fitness training of
individuals and groups. We deem the relevant public to consist of all persons having
an interest in instruction or training in physical fitness, because Applicant’s
identification of services has no restrictions as to the class of customers to whom the
services would be offered.
The Examining Attorney contends that HEAT, as used in Applicant’s mark, is
an acronym for “high energy athletic training.” To demonstrate her point, she has
submitted entries from and showing that
“high energy athletic training” is one of the meanings of HEAT as an acronym.2 The
Examining Attorney has also made of record evidence from the internet showing at
least 21 examples of fitness training offered by third parties who designate some of

2 Office Action of July 8, 2015 at 37, 40.
Serial No. 86578321
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their fitness programs as HEAT or H.E.A.T., with a clear indication that this is
intended to mean “high energy athletic training.” Most often, the term is used with
an explanatory parenthetical, for example:
HEAT (High Energy Athletic Training)
or
High Energy Athletic Training (HEAT).
Examples of other forms in which the term has been used follow:
Are You Ready To Take Your Fitness AND Body To The
Next Level? Try H.E.A.T. NOW! High Energy Athletic
Training is a fat BUSTING workout that stokes the
metabolism and destroys fitness plateaus. … HEAT (AND
all our personal training programs) use the principle of
High Intensity Interval Training (H.I.I.T.) to drive results.
… HEAT (using H.I.I.T.) … Are you READY to try HEAT?
…. We can decide which personal training program,
including HEAT is right for you …3

*****
HEAT - High Energy Athletic Training … Whether you
begin Ray’s Fit Body Boot Camp or his HEAT personal
training program you are sure to experience the results you
desire. …

[Client testimonial] Ray has designed HEAT workouts
specific to my sport of squash.4

*****
The Health & Fitness Center’s Group Exercise Schedule …
H.E.A.T.
June 6, 2016 @8:30 am – 9:30 am

Recurring Event (See all)

3 Web page of Wilmington Lady Fitness, Office Action of April 7, 2017 at 48.
4 , id. at 34.
Serial No. 86578321
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High Energy Athletic Training. Build muscle and burn fat
by integrating short bursts of anaerobic activity within a
strength-building class.5

The Examining Attorney has also submitted excerpts of at least 8 news items
that refer to fitness programs by reference to the acronym HEAT. Examples follow:
Some of the buzzwords for this are high-intensity tactical
training (HITT), functional intense training (FIT), high-
energy athletic training (HEAT), and Tabata intervals.
These include activities like boot camps, indoor cycling and
personal training, where they incorporate a pattern of
high-exertion cardio exercise followed by a working
recovery.6

*****
And now … she’s bringing HEAT. HEAT, in this case,
stands for High Energy Athletic Training. Think of it as the
Ferrari of aerobics. The idea behind HEAT, Smeltzer-
Folkers explains, uses high intensity interval training to
elevate the heart rate and burn more body fat and tone
muscles. HEAT is, in fact, a “hot” methodology
nationwide.7

The Examining Attorney’s evidence is sufficient to persuade us that HEAT is
a recognized acronym in the field of fitness training, and that it has “become so
generally understood as representing [the words ‘high energy athletic training’] as to
be accepted as substantially synonymous therewith.” Modern Optics, Inc. v. Univis
Lens Co., 234 F.2d 504, 110 USPQ 293, 295 (CCPA 1956).
With respect to the term BOOTCAMP, we note that Applicant has identified
its services, in part, as “Fitness boot camps.” This is strong evidence that the term is

5 Web page of The Health & Fitness Center at Washtenaw Community College, id. at 45.
6 “Fitness is a HITT in Davis,” The Davis Enterprise, id. at 6.
7 “Woodward resident brings the HEAT,” Dallas County News, id. at 7.
Serial No. 86578321
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the common commercial name of Applicant’s fitness services. Applicant’s advertising
materials tout “more equipment and training techniques than your typical outdoor
boot camps!”8 Applicant also describes its fitness classes by use of the word “camp”:
“Best indoor camp deal in Austin! … you receive unlimited access to all of the camps
we provide! … Limited camp size! We limit the size of each camp to make sure you
get the one-on-one attention needed to meet your fitness goals.”9 The Examining
Attorney has submitted a third-party internet web page that explains:
A fitness boot camp is a type of outdoor group exercise class
that mixes traditional calisthenic [sic] and body weight
exercises with interval training and strength training.
While there are a variety of styles of fitness boot camps,
most are designed in a way that pushes the participants
harder than they’d push themselves and, in that way,
resemble a military boot camp.
A Typical Fitness Boot Camp
The standard fitness boot camp offers all or most of the
following:
A small group environment (6-10 people).
An open public outdoor space such as a park. …
While there are still some instructors who act like drill
sergeants, most fitness boot camp instructors offer
encouragement rather than intimidation. …10

8 Specimen of use filed January 8, 2016 at 4.
9 Id.
10 “What Is a Fitness Boot Camp?” , Office Action of July 8, 2015
at 6-9.
Serial No. 86578321
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The Examining Attorney has also submitted internet evidence showing that
third parties use the term “boot camp” or “bootcamp” in offering fitness training
services, including the following:
X5 H.E.A.T. (High Energy Athletic Training) program
incorporates boot camp and sports style training and is
more than just a great workout.11

*****
These include activities like boot camps, indoor cycling and
personal training, where they incorporate a pattern of
high-exertion cardio exercise followed by a working
recovery.12

*****
She’s also a certified group fitness instructor and teaches
group personal training, boot camp, spin and High Energy
Athletic Training (HEAT), which is set up outdoors on her
lunch break.13

*****
Whether you begin Ray’s Fit Body Boot Camp or his HEAT
personal training program you are sure to experience the
results you desire. … Ray has designed HEAT workouts
specific to my sport of squash.14

*****
BODYHEAT HOT PILATES & YOGA. Fitness Classes.
Hot Pilates Extreme … Barefoot Bootcamp … Competitive
Bootcamp … H.E.A.T. No Light Weights here! This hour
long class is an extensive muscle building and core
sculpting class that promotes anabolic training.15

*****

11 , id. at 21.
12 “Fitness is a HITT in Davis,” The Davis Enterprise, Office Action of April 7, 2017 at 6.
13 “Tips From The Trainer/Sports Conditioning,” The Tampa Tribune, id. at 10.
14 , id. at 34.
15 , Office Action of August 16, 2017 at 4-7.
Serial No. 86578321
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It is a one hour, bootcamp “type” of class where anything
goes.16

Applicant has submitted a definition of “boot camp” that includes the following:
a military training camp for new recruits, with very harsh
discipline
…
- a short, intensive, and rigorous course of training.
“a grueling, late-summer boot camp for would-be
football players”17

We find the evidence of record amply sufficient to demonstrate that
BOOTCAMP is the generic name of a type of fitness training.
The ultimate inquiry before us, as required by Marvin Ginn, is whether HEAT
BOOTCAMP, as a whole, is understood by the relevant public primarily to refer to
the genus of Applicant’s services. Applicant’s definition of BOOTCAMP shows that
the term may be understood to mean rigorous training in a number of disciplines, not
merely fitness training. A modifier is required if the term BOOTCAMP is to be
understood to refer to a specific type of training. The Examining Attorney’s position
is that the acronym HEAT is a modifier that, when combined with BOOTCAMP,
narrows the significance of the term in such a way as to identify the type of fitness
training service that Applicant offers.
Applicant argues that In re American Fertility Society requires that, when a
designation consists of a phrase, the Examining Attorney “cannot simply cite
definitions and generic uses of the constituent terms of a mark,” but must

16 , Office Action of July 8, 2015 at 42.
17 Applicant’s response of January 8, 2016 at 12.
Serial No. 86578321
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demonstrate use by others of the phrase as a whole in a generic manner.18 The
Examining Attorney, citing In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110
(Fed. Cir. 1987), argues that her burden of proof “is satisfied by producing evidence
that the terms are used together, that each of the constituent words is generic, and
that each word retains its generic meaning when combined such that the composite
formed is generic and does not create a different, non-generic meaning.”19
Neither Applicant nor the Examining Attorney states the test for genericness
in a wholly correct way. However, even if Applicant’s rather strict requirement that
the Examining Attorney show use by third parties of HEAT BOOTCAMP as a whole
were the correct test,20 the Examining Attorney has done that, as we will discuss.
However, as the Federal Circuit has stated:
[T]here is only one legal standard for genericness: the two-
part test set forth in Marvin Ginn. … Regardless of
whether the mark is a compound term or a phrase, the
applicable test is the same and the Board must consider
the record evidence of the public’s understanding of the
mark as a whole.
Princeton Vanguard, 114 USPQ2d at 1830-32 (citing Am. Fertility, 51 USPQ2d at
1836). With that in mind, we consider the record evidence bearing upon the public’s
understanding of the entire term HEAT BOOTCAMP.

18 Applicant’s brief at 6, 4 TTABVUE 7.
19 Examining Attorney’s brief, 6 TTABVUE 12.
20 In any event, we do not agree with Applicant’s characterization of the test for genericness.
See In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1957 (TTAB 2018) (“The fact that
there is no evidence of third-party use of the precise term ‘mechanically floor malted’ is not,
by itself, necessarily fatal to a finding of genericness.”)
Serial No. 86578321
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The Examining Attorney has presented the following examples of third-party
use of HEAT BOOTCAMP:
H.E.A.T. Bootcamp (High Energy Athletic Training) starts
tomorrow! Come try it out for free on Tuesday …21

*****
NEW CLASSES – TKO CARDIO & H.E.A.T. BOOTCAMP
…
H.E.A.T. Bootcamp – High Energy Athletic Training
Bootcamp was designed to combine the benefits of
functional training with the energy that comes with a
Group Fitness Class to help you shed pounds. H.E.A.T.
Bootcamp is an hour long class which will have you
participating in 10-12 different, timed exercises which will
incorporate both cardio exercise and resistance/weight
training.22

*****
H.E.A.T. BOOTCAMP. High Energy Athletic Training. I
teach this all over if you get a group of 4-10 together ill [sic]
come teach your group.23

*****
Boot-Camp Classes for Women
HEAT High Energy Athletic Training in Tampa, FL

Expired – 30 Days of Boot-Camp with Optional Gold’s Gym
Membership from HEAT High Energy Athletic Training
(Up to 56% Off)
…
Options

HEAT Bootcamp for women $68.00
30-Day Heat Bootcamp and Gold’s Gym Membership for
women $89.00

21 Facebook posting of UC Davis ARC, Office Action of February 2, 2016 at 18.
22 , id. at 19.
23 Posting of jkofitkid on , id. at 28-29.
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Get Deal!
Expired24

*****
EVENT ENDED

Drop It Low – Saturday H.E.A.T. Bootcamp25

*****
HEAT (High Energy Athletic Training)
…
… It is a one hour, bootcamp “type” of class where anything
goes.26

Because BOOTCAMP is a generic name for Applicant’s fitness training
services, evidence of how people use HEAT together with other generic terms of
similar meaning may cast light on the way the public would understand HEAT
BOOTCAMP. Evidence showing spontaneous usage of expressions like “HEAT
program,” “HEAT classes,” and “HEAT workouts” shows that the relevant public
understands such terms as referring to a genus of fitness training. We find the
following usage examples relevant to our inquiry (emphasis added):
X5 H.E.A.T. (High Energy Athletic Training) program
incorporates boot camp and sports style training …27

*****

24 , id. at 26-27. Applicant argues that “strikethroughs” in this example
render the evidence a nullity. Applicant’s reply brief at 6-7, 7 TTABVUE 7-8. We do not agree.
The fact that the web page was at some point modified does not mean that the critical words
at issue were never used. A more reasonable interpretation of the strikethroughs is that the
coupon offer had expired.
25 posting, Office Action of August 16, 2017 at 9.
26 , Office Action of July 8, 2015 at 42. Although this example does not show
precise use of “HEAT BOOTCAMP,” we note that it effectively equates HEAT with
BOOTCAMP.
27 , Office Action of February 2, 2016 at 21.
Serial No. 86578321
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UPH.E.A.T.
HIGH ENERGY ATHLETIC TRAINING
FITNESS STUDIO
…
H.E.A.T. PROGRAM
CYCLE
BODY CAMP
FUNTIONAL TRAINING (sic)
AIRFIT
HOT YOGA
PURMOTION
ZUMBA
PERSONAL TRAINING YOGA

We have the convenience to accommodate all families,
whether you want to do yoga, cycling, ABS sculpting,
plyometrics, bodyweight training, weight training, and
H.E.A.T. program which is the main attraction in our
facility.28
*****

[photo caption]: “Above: HEAT class at the Greendale
YMCA.29
*****
… Murray watched his morning High Energy Athletic
Training (HEAT) classes … He joined McCurdy’s HEAT
classes … Cindy L. Gibbs …, stated: ‘The HEAT program
is awesome!’ … He is offering a new round of HEAT
classes …30
*****
Whether you begin Ray’s Fit Body Boot Camp or his HEAT
personal training program you are sure to experience
the results you desire. … Ray has designed HEAT
workouts specific to my sport of squash.”31

28 , Office Action of September 27, 2016 at 16-20.
29 “Cool calisthenics; It’s not just for gym class anymore,” Worcester Telegram & Gazette,
Office Action of April 7, 2017 at 12.
30 “Master sergeant finds HEAT gains him extra edge,” U.S. Airforce Hilltop Times, id. at 23.
31 , id. at 34.
Serial No. 86578321
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Applicant cites In re Nordic Naturals, Inc., 755 F.3d 1340, 111 USPQ2d 1495
(Fed. Cir. 2014), in which the Court found sufficient evidence to show that
CHILDREN’S DHA was generic for a nutritional supplement. Applicant argues that
the examples of third-party usage in the case before us are fewer in number than
those found sufficient in Nordic Naturals.32 However, our inquiry into the evidence
must necessarily be a qualitative analysis, not a quantitative one. In cases regarding
the alleged genericness of different terms, different types of evidence may be adduced;
and the Federal Circuit has made clear that all evidence bearing on public perception
must be given appropriate consideration. Princeton Vanguard, 114 USPQ2d at 1833.
Applicant argues, with respect to several of the examples of third-party use of
HEAT BOOTCAMP,33 that its own use of the term predates the third-party use.34
Even if it is true that Applicant was the first user of the term, it would not render the
term registrable if it had subsequently entered into generic use. Even a registered
mark may be removed from the Register if it becomes the generic name of the goods
or services. See Trademark Act Section 14, 15 U.S.C. § 1064 (“A petition to cancel a
registration of a mark … may … be filed … (3) At any time if the registered mark
becomes the generic name for the goods or services, or a portion thereof, for which it
is registered …”).

32 Applicant’s brief at 7-8, 4 TTABVUE 8-9.
33 The examples are those from UC Davis ARC, , (see Office
Action of February 2, 2016 at 18, 19, 28-29); and (see Office Action of July
8, 2015 at 21).
34 Applicant’s reply brief at 4-5, 7 TTABVUE 5-6.
Serial No. 86578321
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Applicant argues that the Examining Attorney’s showing does not amount to
substantial evidence of generic use of the term HEAT BOOTCAMP by third parties.35
However, third-party use is not the only relevant evidence. Our task, as explained by
Princeton Vanguard, is to conduct “[a]n inquiry into the public’s understanding of
[the] mark” as a whole. 114 USPQ2d at 1831 (quoting In re Steelbuilding.com, 75
USPQ2d at 1421). The types of evidence that may be adduced are not limited to
examples of third-party uses, and if the evidence adduced meets the standard of
Marvin Ginn, the term may be found to be generic.
The evidence shows that third parties have spontaneously and independently
adopted the term HEAT BOOTCAMP in order to identify a type of fitness training
services. The record also shows the generic meanings of the individual terms HEAT
and BOOTCAMP, and includes evidence of how members of the relevant public use
these terms separately and together, which demonstrates what they understand
these terms to mean and what they would understand them to mean when combined
into a single expression. Having carefully reviewed all of the evidence and arguments
of record, we find that clear evidence shows that members of the relevant public
would understand the term HEAT BOOTCAMP primarily to refer to a type of fitness
training service.
Neither Applicant nor the Examining Attorney has addressed the style
elements of Applicant’s mark, consisting of the stylized lettering and the claimed
color scheme. Where a word mark has been held nondistinctive, a design element will

35 Id. at 8, 7 TTABVUE 9.
Serial No. 86578321
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not render it registrable unless it creates an impression on purchasers separate and
apart from the impression made by the words themselves. See In re Cordua Rests.,
118 USPQ2d at 1639-40 (affirming Board’s refusal of registration of stylized mark
CHURRASCOS on the Supplemental Register based on finding that the stylization
“does not create a separate commercial impression over and above that made by the
generic term.”). In the case before us, we find the minor stylization of Applicant’s
proposed mark insufficient to render it registrable. The style of lettering is highly
conventional; the use of black lettering on a white background is utterly
nondistinctive; and the use of the color red for some of the lettering is an extremely
common graphic convention. Overall, the stylized element of the mark does not create
a separate commercial impression over and above the impression made by the generic
wording.
Decision: The refusal of registration on the ground that the proposed mark is
generic is AFFIRMED.