J.T. Posey Company

Trademark Trial and Appeal Board

Aug 18, 2015

No. 85206911 (T.T.A.B. Aug. 18, 2015)

This Opinion is Not a
Precedent of the TTAB

Hearing: June 25, 2015 Mailed: August 18, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re J.T. Posey Company
_____

Serial No. 85206911
_____

James A. Hendricks of Hendricks, Slavin & Holmes LLP
for J.T. Posey Company.
Josette M. Beverly, Trademark Examining Attorney, Law Office 115,
John Lincoski, Managing Attorney.
_____

Before Kuhlke, Bergsman and Greenbaum,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
J.T. Posey Company (“Applicant”) seeks registration on the Principal Register of
the mark SKINSLEEVES (in standard characters) for
Medical devices, namely, non-compression fabric covers
for legs and noncompression fabric covers for arms, non-
compression fabric covers for skin protection of a patient's
limb such as a leg or an arm, non-compression knitted
skin coverings to be used for protection of the legs or arms
of patients who have fragile skin that may be prone to
Serial No. 85206911
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tears and abrasions; protective fabric medical coverings
for wound prevention, in International Class 10.1
After the refusal of registration was made final under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), Applicant, in the alternative, sought
registration under the provisions of Section 2(f) of the Trademark Act, 15 U.S.C. §
1052(f). In response, the Trademark Examining Attorney refused registration of
Applicant’s mark on the ground that the mark is generic as to the goods and
therefore incapable of distinguishing them from those of others under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1). Alternatively, the Trademark
Examining Attorney maintained the refusal to register Applicant’s mark on the
ground that Applicant’s mark is merely descriptive and held that the evidence of
acquired distinctiveness is insufficient.
I. Preliminary Issue
On August 10, 2013, Applicant appealed the refusals to register its mark and it
also filed a request for reconsideration. In denying the request for reconsideration,
the Trademark Examining Attorney cited inter alia three third-party websites that
referenced the term “Skin Sleeves” (i.e., Horizon Healthcare Supply, Kinship
Comfort Brands, and RehabMart.com).2 During the prosecution of this appeal,
Applicant requested that the third parties cease their use of the term “skin sleeves.”

1 Application Serial No. 85206911 was filed on December 28, 2010, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act. On April 30, 2012, Applicant filed an Amendment to Allege Use, claiming
first use anywhere and first use in commerce on August 13, 2004. The Amendment to
Allege Use was accepted on July 10, 2012.
2 5 and 6 TTABVUE and 8 TTABVUE 9.
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Applicant contends that the third parties agreed to stop using the term “skin
sleeves” and that their acquiescence to Applicant’s demand is “highly relevant to the
registrability of Applicant's trademark, and that it nullifies three important pieces
of evidence that did not exist prior to the present Appeal.”3 Accordingly, Applicant
filed a request for remand so that the Trademark Examining Attorney could
consider the fact that the third parties stopped using the term “skin sleeves.”4 In an
order dated March 28, 2014, the Board granted the request for remand.5
On May 15, 2014, the Trademark Examining Attorney filed a Supplemental
Appeal Brief in which she maintained the refusals to register Applicant’s mark.6
The Trademark Examining Attorney “disagree[d] with the applicant’s conclusion
that any discontinued use of the wording ‘skin sleeves’ or any variations thereof is
evidence that the applicant’s mark is not generic.”7 In addition, the Trademark
Examining Attorney asserted that Kinship Comfort Brands still used the term “skin
sleeves” on its website and speculated as to why Horizon Healthcare Supply and
RehabMart.com may have removed “skin sleeves” from their websites.
In its Reply Brief, Applicant reiterated that the third parties discontinued their
use of the term “skin sleeves” in response to Applicant’s request.8

3 15 TTABVUE 3.
4 15 TTABVUE.
5 18 TTABVUE. The Order allowed the Trademark Examining Attorney to submit
additional evidence.
6 21-24 TTABVUE.
7 24 TTABVUE 5-6.
8 27 TTABVUE 2 and 5.
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… the fact that Kinship Comfort Brands changed some of
their webpages but not all of their webpages as Applicant
requested was either an oversight on their part or
intentional. However, Kinship Comfort Brands has made
all of the corrections they originally agreed to. … There is
no reason for the Office to suggest that the statements in
Applicant's papers were not credible or to speculate about
possible other reasons for these third parties to change
the marketing of their product.9
Assuming Applicant is correct and that the third parties stopped using the term
“skin sleeves” in response to Applicant’s protest, the acquiescence by the third
parties, without more, can be viewed as simply a desire to avoid litigation rather
than as a concession that the mark has acquired distinctiveness. See, e.g., In re
Wella Corp., 565 F.2d 143, 196 USPQ 7, 8 n.2 (C.C.P.A. 1977) (“Appellant argues
that various letters (of record) from competitors indicating their discontinuance of
use of its mark upon threat of legal action are evidence of its distinctiveness, but we
agree with the TTAB that such evidence shows a desire of competitors to avoid
litigation rather than distinctiveness of the mark.”); In re Consol. Cigar Corp., 13
USPQ2d 1481, 1483 (TTAB 1989) (“Evidence that competitors may have agreed to
discontinue use of WHIFFS upon threat of legal action by applicant shows a desire
by those competitors to avoid litigation, rather than distinctiveness of WHIFFS.”).
But see In re America Online Inc., 77 USPQ2d 1618, 1622-1623 (TTAB 2006) (Board
noted applicant’s evidence of publisher’s acknowledgment not to use applicant’s
mark and found trademark recognition by publishers). Nevertheless, we will not

9 27 TTABVUE 5. We do not consider the attachments to Applicant’s Reply Brief nor
statements referencing the attachments in the Reply Brief as the Board directed Applicant
not to file any additional evidence with its Reply Brief. 15 TTABVUE 2.
Serial No. 85206911
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consider the use of “skin sleeves” by Horizon Healthcare Supply, Kinship Comfort
Brands, and RehabMart.com in the evaluation of the evidence because they have
purportedly ceased using that term in advertising.
II. Whether SKINSLEEVES Is Generic?
When a proposed mark is refused registration as generic, the Trademark
Examining Attorney has the burden of proving genericness by “clear evidence.” See
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 & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143
(Fed. Cir. 1987).
There is a two-part test used to determine whether a designation is generic: (1)
what is the genus of goods at issue? and (2) does the relevant public understand the
designation primarily to refer to that genus of goods? H. Marvin Ginn Corp. v. Int’l
Assn. of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986). See
also Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d
1827, 1829 (Fed. Cir. 2015) (“there is only one legal standard for genericness: the
two-part test set forth in Marvin Ginn.”). The public’s perception is the primary
consideration in determining whether a term is generic. Loglan Inst. Inc. v. Logical
Language Group Inc., 902 F.2d 1038, 22 USPQ2d 1531, 1533 (Fed. Cir. 1992).
Evidence of the public’s understanding of a term may be obtained from any
competent source, including testimony, surveys, dictionaries, trade journals,
newspapers and other publications. Princeton Vanguard, 114 USPQ2d at 1830;
Serial No. 85206911
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Loglan Inst., 22 USPQ2d at 1533; Dan Robbins & Associates, Inc. v. Questor Corp.,
599 F.2d 1009, 202 USPQ 100, 105 (CCPA 1979).
A. The genus of the goods at issue.
As noted above, Applicant is seeking to register its mark SKINSLEEVES for the
following goods:
Medical devices, namely, non-compression fabric covers
for legs and noncompression fabric covers for arms, non-
compression fabric covers for skin protection of a patient's
limb such as a leg or an arm, non-compression knitted
skin coverings to be used for protection of the legs or arms
of patients who have fragile skin that may be prone to
tears and abrasions; protective fabric medical coverings
for wound prevention.
In her Brief, the Trademark Examining Attorney asserts that the genus is “skin
coverings” because Applicant and third parties refer to the goods as “skin
coverings.” Further, the Trademark Examining Attorney contends that “skin
coverings” encompasses the more specific subcategory of “non-compression fabric
covers for skin protection.”10 We note, however, that in her analysis of whether the
relevant public understands SKINSLEEVES to refer to that genus of goods, the
Trademark Examining Attorney contends that SKINSLEEVES is “used in the
medical industry to identify a type of skin protective covering.”11
Applicant, in its brief, does not clearly identify what it perceives as the genus of
the goods; rather, it criticizes the genus as identified by the Trademark Examining

10 14 TTABVUE 5-6.
11 14 TTABVUE 12. Further, in her the February 12, 2013 Office Action, the Trademark
Examining Attorney identified the genus of the goods as “non-compression fabric covers for
skin protection.”
Serial No. 85206911
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Attorney.12 However, in its Reply Brief, Applicant apparently adopted the position
that the genus of goods at issue in this case is defined by Applicant's identification
of goods.13
Applicant’s website describes the “Posey SkinSleeves™ Protector” as a
“[v]ersatile non-compression skin covering that offers a discrete way to protect your
patient’s fragile skin from tears, bruises and abrasions.” It is “intended to fit as a
comfort product” and is recommended for use by “[p]atients with fragile skin prone
to tears and abrasions; patients who disrupt IV and/or wound sites.”14 This
description of Applicant’s product is corroborated by other evidence relied upon by
the Trademark Examining Attorney. See, e.g., “Nursing assisting: essentials for
long-term care” by Barbara Acello (books.google.com) (“Skin Sleeves offer excellent
skin protection against skin tears and bruises.”);15 Patterson Medical website
(Pattersonmedical.com) (“acts as a second skin, preventing cuts and abrasions.”);16
Limbkeepers (limbkeepers.com) (“There are many factors that contribute to fragile
skin, wound care management, post surgery healing, chemotherapy treatment,
burn recovery, medication induced skin disorders, sun damage, and the normal
aging process. … When worn under clothing, Limbkeepers sleeves add another layer
of padded protection to give these vulnerable areas of fragile skin.”).17

12 12 TTABVUE 10-11.
13 16 TTABVUE 8.
14 Trademark Examining Attorney’s Supplemental Brief (May 15, 2014). 21 TTABVUE 3.
15 March 30, 2011 Office Action.
16 Id.
17 21 TTABVUE 2 and 22 TTABVUE 7.
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Finally, in the declarations that Applicant submitted to prove acquired
distinctiveness, the declarants referred to Applicant’s products as “patient
protection products.”18
Based on the description of goods and the evidence in the record, we find that
the genus of the goods is medical protective fabric skin coverings for wound
prevention.19 See In re Reed Elsevier Props. Inc., 482 F.3d 1376, 82 USPQ2d 1378,
1380 (Fed. Cir. 2007) (“In determining the meaning of ‘information exchange about
legal services’ as defined by Reed's application, the board appropriately reviewed
the www.lawyers.com website for context, to inform its understanding of the term.”);
In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir. 2005) (the Court
examined Applicant’s website to understand the meaning of terms for which
coverage was sought and thereby define the genus of covered services).
B. The relevant public.
The second part of the genericness test is whether the relevant public
understands the designation primarily to refer to that class of goods. The relevant
public for a genericness determination is the purchasing or consuming public for the
class of goods. Magic Wand Inc. v. RDB Inc., 19 USPQ2d at 1553 (citing In re
Montrachet S.A., 878 F.2d 375, 11 USPQ2d 1393, 1394 (Fed. Cir. 1989)); In re
Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143

18 January 8, 2013 Response to an Office Action.
19 In its January 8, 2013 Response to an Office Action, Applicant asserted that “‘protective
fabric medical coverings for wound protection’ may be more suitable definitions [sic] of the
genus in the present case.”
At the oral hearing, the Board engaged Applicant and the Trademark Examining Attorney
in a discussion regarding the genus.
Serial No. 85206911
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(Fed. Cir. 1987); H. Marvin Ginn Corp. v. International Ass'n of Fire Chiefs, Inc.,
228 USPQ at 530; Dan Robbins & Assocs., Inc. v. Questor Corp., 202 USPQ at 105
(CCPA 1979).
Applicant submits that the relevant public in respect of
the applicable goods is comprised primarily of medical
professionals, who are skilled and experienced in the
relevant medical field of patient safety, as well as
suppliers of medical products and distributors. The
product is predominantly applied to patients by nurses
with medical training and expertise. Due to the nature of
medical goods, selecting a particular product to purchase
requires considerable analysis and evaluation of the
merits of a particular product and its suitability for the
specific purpose or application. These medical
professionals are skilled and discerning individuals, with
specialized knowledge of the relevant products, capable of
identifying the applied-for mark as the source of origin for
Applicant’s goods.20
The Trademark Examining Attorney apparently agrees. As previously noted, the
Trademark Examining Attorney contends that SKINSLEEVES is “used in the
medical industry to identify a type of skin protective covering.”21
In view of the foregoing, we find that the relevant public consists of medical
professionals specifically charged with patient safety.22

20 January 8, 2013 Response to an Office Action. To prove acquired distinctiveness,
Applicant submitted declarations from a patient safety coordinator, a manager of a home
medical supply company, four registered nurses, and a nurse supervisor. January 8, 2013
Response to an Office Action.
21 14 TTABVUE 12.
22 We do not discount the fact that the ultimate customer might include the patient him or
herself or a family member (e.g., perhaps a doctor advises the patient that their skin is
sensitive and to buy a medical protective fabric skin coverings for wound protection).
However, there is no record evidence addressing this possibility.
Serial No. 85206911
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C. Public perception
To determine how the relevant purchasers understand the meaning of the term
SKINSLEEVES when used in connection with medical protective fabric skin
coverings for wound prevention, we have considered dictionary definitions,
Applicant’s use of SKINSLEEVES, and third-party use of that term, as well as how
third parties refer to similar products. The analysis of the evidence focuses on the
term “skin sleeve” and variations thereof.
1. Dictionary definitions
There are no dictionary definitions for the term SKINSLEEVES or “Skin
Sleeve[s].” Further, there was no entry for SKINSLEEVES or “skin sleeve” in the
Wikipedia website list of terms with a “skin” prefix (e.g., skin-care, skin & bones,
skin cancer, skinflint, etc.).23
The word “skin” is defined as “the outer layer of a person’s or animal’s body.”24
The word “sleeve” is defined as “the part of a piece of clothing that covers your
arm” or “a paper or plastic cover that protects something such as a record or book.”25
2. Applicant’s use of SKINSLEEVES
In response to an information request by the Trademark Examining Attorney,
Applicant submitted excerpts from its website advertising its SKINSLEEVES

23 Applicant’s August 12, 2013 Response to an Office Action; 4 TTABVUE 73-80. TTABVUE
incorrectly lists the filing date as August 10, 2013.
24 MACMILLAN DICTIONARY (American English) (macmillandictionary.com) (2009-2011)
attached to the March 30, 2011 Office Action.
25 Id. See also Dictionary.com derived from THE RANDOM HOUSE DICTIONARY (2015)
(“the part of a garment that covers the arm, varying in form and length but commonly
tubular.”). 4 TTABVUE 36.
Serial No. 85206911
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medical protective fabric skin coverings for wound prevention.26 The following
examples are representative:

* * *

In the website, Applicant displays a sizing chart classifying its SKINSLEEVES
as “Arm Sleeves” and “Leg Sleeves,” thus, indicating that the word “sleeves” is a
descriptive, if not generic, term when used in connection with medical protective
fabric skin coverings for wound prevention.27

26 September 30, 2011 Response to an Office Action.
27 See also the Skil-Craft Corporation advertisement for its GERI-SLEEVES medical
protective fabric skin coverings for wound prevention and the CarePathways.com website
advertising the Western Medical GLEN-SLEEVE II Arm Protector medical protective fabric
skin coverings for wound prevention [September 30, 2011 Response to an Office Action];
“Preventing and Treating Skin Tears,” Cynthia A. Fleck (nursingcenter.com 2007) (“The
use of protective sleeves or elastic tubular support bandages that come on a roll is cost-
effective and practical.”) [January 8, 2013 Response to an Office Action];
CompressionSleevesForArms.com explains that compression sleeves are “elastic garments
that exert pressure on limbs.”; Medline.com advertises “protective arm/leg sleeves,”
“Dermasaver Sleeves, Tyvek Sleeves and WBP Sleeves; AllDayMedical.com advertises the
sale of GERIGLOVE Arm Protector which is described as “a knit arm-sleeve that shapes to
the natural contour of the arm.”; ParentGivingStore.com advertises the sale of a “protective
arm sleeve” “designed to reduce or eliminate skin tears or sheers by providing a protective
sleeve over the user’s skin”; Dermasver.com advertises skin protection products identifying
competitive products as “limb sleeves” and “fabric sleeves.” [February 12, 2013 Office
Action].
Serial No. 85206911
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3. Third-party use of SKINSLEEVES or “skin sleeves”
(i) March 30, 2011 Office Action28
a. Prosthetics Research Specialists, Inc. (prostheticsresearch.com)
advertises the sale of “U-Flate” Skin Sleeves as coverings for prosthetic limbs.29
PRS has again accomplished what prosthetists have
requested:

28 The Trademark Examining Attorney submitted an excerpt from the website of Patterson
Medical (Pattersonmedical.com). Patterson Medical is an authorized dealer of Applicant’s
products and, therefore, that company’s use of “Skin Sleeves” is trademark use on behalf of
Applicant. September 30, 2011 Response to an Office Action.
29 Applicant argues that this third-party use is not relevant because it is not a fabric cover
for skin protection. “Prostheses are an entirely different market and product line from
patient safety products.” September 30, 2011 Response to an Office Action. While we agree
with Applicant that the exhibit does not show use of the term “skin sleeve” in connection
with a fabric cover for skin protection, we nevertheless find that this exhibit is relevant to
show how consumers perceive the term “skin sleeve.”
Serial No. 85206911
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■ A shrinkable skin sleeve
■ An improved foot to ankle section
■ A slick skin surface
b. NURSING ASSISTING: ESSENTIALS FOR LONG-TERM CARE by Barbara
Acello (books.google.com) references the term “skin sleeves” for skin protection.30

c. 3B Scientific (a3bs.com) references the term “skin sleeves” in
connection with an infant training arm for practicing intravenous injections.31
(ii) July 8, 2012 Office Action32

30 Applicant argues that the reference to “skin sleeves” in “one Nursing [sic] book is an
anomaly that is not representative of reality.” Applicant asserts that this book was
published in 2004 and that the same author has not used the term “skin sleeves” in her
other books. September 30, 2011 Response to an Office Action.
31 Applicant argues that this third-party use is not relevant because it is not a fabric cover
for skin protection. January 8, 2013 Response to an Office Action. We agree with
Applicant’s objection to this exhibit because the third party is using the term to identify a
“skin sleeve” placed on a manikin so that nurses and doctors may practice inserting a
needle into a baby’s arm. We, nevertheless, find that this exhibit is relevant to show how
consumers perceive the term “skin sleeves.”
32 Applicant argues that the two articles submitted in the July 8, 2012 Office Action “are
simply isolated instances of improper use of a variation on Applicant’s mark and do not
show that either SKIN SLEEVES or the applied-for mark is generic. These articles must be
considered in relation to the vast number of scholarly articles and publications on the
subject of skin tears.” January 8, 2013 Response to an Office Action. To support this
argument, Applicant submitted eight articles regarding skin tears that do not reference the
Serial No. 85206911
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a. “Skin tears: prevention and treatment,” by JY Wick and GR Zanni
(Consult Pharm 2008) (PubMed.gov).
Abstract
While skin tears are common among the elderly in
general, and residents of long-term care facilities in
particular, there has been limited research into their
treatment. … Plans to prevent skin tears that employ
skin sleeves, padded side rails, gentle skin cleansers,
moisturizing lotions, as well as staff education, can
decrease by half the number of skin tears incurred in a
long-term care facility. (Emphasis added).
b. “Skin tears; understanding problem leads to prevention, proper care”
by Diane Krasner (thefreelibrary.com) (2010).
In the United States alone there are more than 1.5
million skin tears per year in institutionalized adults. …
Prevention strategies
… Use protective clothing and devices. Long sleeved
shirts, stockings, and clothing modifications are effective
strategies for skin tears. Skin sleeves and leg protectors
are useful prevention devices, especially for individuals
who experience recurring skin tears. (Emphasis added).

term “skin sleeves”; rather the articles reference stockinettes, protective sleeves, elastic
tubular support bandages, and protective dressings. The Trademark Examining Attorney
also introduced an article entitled “Evidence Of Safety: Matching Limb Protection Sleeves
With Tourniquet Cuffs” posted on the Tourniquets.org Blog (March 4, 2013) attached to the
September 12, 2013 Office Action; 7 TTABVUE 2. The medical protective fabric skin
coverings for wound prevention were referred to as “limb protection sleeves” and
“stockinettes.” We find that these articles are relevant for what they show on their face (i.e.,
that two authors used the term “skin sleeve” to identify a medical protective fabric skin
coverings for wound protection).
We further note that the two articles submitted by the Trademark Examining Attorney
were published after Applicant’s August 13, 2004 dates of first use which may reflect
misuse or misunderstanding regarding trademarks and/or product names on the part of the
authors writing about medical protective fabric skin coverings for wound protection.
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(iii) May 15, 2014 Trademark Examining Attorney’s Supplemental Brief33
The Trademark Examining Attorney introduced two exhibits that we find show
use of the term “skin sleeves” in connection with Applicant’s products. Tri-State
Surgical Supply & Equipment (tristatesurgical.com) is advertising the sale of
Applicant’s products because it uses Applicant’s product in the accompanying
photograph.34 Diller Medical Inc. (dillermedical.com) is advertising the sale of
Applicant’s products as it identifies Applicant as the source of the “Skin Sleeves.”
Diller Medical also advertises “Skin Sleeve” by New York Orthopedic. However, the
photograph for that product is the same photograph used by Kinship Comfort
Products, which company has agreed to stop using the term SKINSLEEVES.
The Newegg.com website advertises the sale of “Arm Protector, Skin Sleeves, 6
pair/cases.” The manufacturer of the fabric is identified as De Royal.35
4. Other generic terms for medical protective fabric skin coverings for
wound protection.36
Skil-Care Corporation uses the trademark GERI-SLEEVES and the generic
term “stockinet.”37 Skil-Care Corporation also uses the term “skin protectors.”38
Western Medical uses the trademark GLEN-SLEEVE II and the generic term
“arm protector.”39

33 Pursuant to the Board’s March 28, 2014 Order, the Trademark Examining Attorney was
permitted to include evidence with her Supplemental Brief.
34 23 TTABVUE 3.
35 22 TTABVUE 4-5.
36 See also footnote 29 supra.
37 September 30, 2011 Response to an Office Action.
38 January 8, 2013 Response to an Office Action.
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The WinHealth website (win-health.com) advertises the sale of DermaSaver Arm
Protectors.40 The DermaSaver products are also referred to as “arm tubes.”
AllDayMedical (alldaymedical.com) advertises the sale of a GERIGLOVE Arm
Protector manufactured by Preventative Products, Inc.41 and Sock Science (socks-
science.com) advertises the sale of Sock Science “arm sleeves.”42
MacMed Healthcare (macmedhealthcare.com) advertises the sale of SKIN
PROTECTAS “an easy-to-wear, moisture transporting anti-friction tube.”43
The MEDLINE.com website advertises the sale of “protective sleeves” by several
different manufacturers/suppliers. For example, the website advertised the sale of
MEDLINE protective arm/leg sleeves, Dermasaver Sleeves by Sammons Preston,
Skinsleeves by Posey Company, Sterile Isoclean Tyvek Sleeves by Dupont, Skin
Protector Sleeves by EM Adams, PE Coated Polypropylene Sleeves by Safety Zone,
Glen-Sleeve Arm Protectors by Derma Sciences, Ready-To-Wear Armsleeves by
BSN Medical, Skil-Care Geri-Sleeves by Alimed, and Elastic Sleeve by BPSP
Company.44

39 September 30, 2011 Response to an Office Action
40 January 8, 2013 Response to an Office Action.
41 January 8, 2013 Response to an Office Action. See also the February 12, 2013 Office
Action.
42 September 12, 2013 Office Action; 8 TTABVUE 10.
43 January 8, 2013 Response to an Office Action.
44 February 12, 2013 Office Action.
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The ParentGivingStore website (parentgiving.com) advertises the sale of a
“Protective Arm Sleeve” “designed to reduce or eliminate skin tears or sheers by
providing a protective sleeve over the user’s skin.”45
The DermaSaver website (dermasaver.com) refers to its “skin protection
products” as “limb sleeves” and specifically advertises “DermaSaver Skin Tubes™,”
which it differentiates from “traditional fabric sleeves and stockings.”46
The Delfi Medical Innovations Inc. website (delfimedical.com) website advertises
fabric covers for skin protection as “limb protection sleeves.”47
C. Analysis
Applicant’s mark SKINSLEEVES is a compound word similar in construction to
the term SCREENWIPE in Gould. The applicant in Gould sought to register the
mark SCREENWIPE for “pre-moistened, anti-static cloth for cleaning computer and
television screens.” The court found that “Gould's own submissions provided the
most damaging evidence that its alleged mark is generic and would be perceived by
the purchasing public as merely a common name for its goods rather than a mark
identifying the good's source.” 5 USPQ2d at 1112. Gould described its product as “a
… wipe … for … screens.” Id. Given this admission, the court noted that the
“compound immediately and unequivocally describes the purpose, function and
nature of the goods as Gould itself tells us.” Id. (“Gould has simply joined the two
most pertinent and individually generic terms applicable to its product, and then

45 February 12, 2013 Office Action.
46 February 12, 2013 Office Action.
47 September 12, 2013 Office Action; 5 TTABVUE 4.
Serial No. 85206911
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attempts to appropriate the ordinary compound thus created as its trademark.”). In
that context, where the mark in its entirety has exactly the same meaning as the
individual words, the court stated that “the PTO has satisfied its evidentiary
burden if, as it did in this case, it produces evidence … that the separate words
joined to form a compound have a meaning identical to the meaning common usage
would ascribe to those words as a compound.” Id. at 1111-1112. Because “the terms
remain as generic in the compound as individually,” the court concluded that the
compound itself was generic. Id. at 1112.
In this case, however, Applicant has not described its products as “a … sleeve …
of … skin,” “a skin-like sleeve,” “a sleeve for skin,” or anything remotely close
thereto. Further, unlike SCREENWIPE in Gould, SKINSLEEVES when considered
in its entirety, does not have a generally recognized meaning: that is, it is not the
recognized name of anything. Accordingly, we may not rely on the dictionary
definitions alone because they do not provide clear evidence that the term
SKINSLEEVES or Skin Sleeves is a generic term for fabric covers for skin
protection.
The record provides us with four examples of some variation of “skin sleeve”
used as a generic term for medical protective fabric skin coverings for wound
protection:
1. NURSING ASSISTING: ESSENTIALS FOR LONG-TERM CARE by Barbara Acello
(2004);
2. “Skin tears: prevention and treatment,” by JY Wick and GR Zanni (2008);
Serial No. 85206911
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3. “Skin tears; understanding problem leads to prevention, proper care” by
Diane Krasner (2010); and
4. The Newegg.com website advertising the sale of “Arm Protector, Skin
Sleeves, 6 pair/cases” manufactured by De Royal.
As noted above, the Trademark Examining Attorney has the burden of proof and
genericness must be shown by clear evidence. In re Hotels.com, 91 USPQ2d at 1533.
Furthermore, any doubts must be resolved in Applicant’s favor. In re Tennis
Industry Association, 102 USPQ2d 1671, 1680 (TTAB 2012); In re DNI Holdings
Ltd., 77 USPQ2d 1435, 1437 (TTAB 2005). Genericness is a fact-intensive
determination and the Board's conclusion must be governed by the record which is
presented to it. On balance we find that the Trademark Examining Attorney has
not met her difficult burden of establishing by clear evidence that the designation
SKINSLEEVES is generic for the genus of medical protective fabric skin coverings
for wound prevention. In this regard, we note the paucity of evidence (four
examples) showing “skin sleeves” or variations thereof displayed generically,
including only one use by a third party competitor. Further, two of the three
scholarly articles regarding skin tears that used the term “skin sleeves” were
published after Applicant’s first use of that term as a trademark.48 Also, Applicant
asserts that the author of the third work has not used the term “skin sleeves” in
subsequent publications. Finally, the record includes examples of third-party use of

48 According to Gary Platzman, Applicant’s Vice President of Sales & Marketing, Applicant
“has been using the SKINSLEEVES trademark for patient protectors for more than ten
years.” Platzman Declaration ¶2, attached to the September 30, 2011 Response to an Office
Action.
Serial No. 85206911
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the term SKINSLEEVES in reference to Applicant’s goods, i.e., trademark use. The
paucity of evidence of generic usage, countered by evidence of trademark usage,
does not show, by clear evidence, that medical professionals view and use the term
SKINSLEEVES as a generic term for medical protective fabric skin coverings for
wound prevention. See In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 4 USPQ2d
at 1143 (there was no clear evidence that the financial community used CASH
MANAGEMENT ACCOUNT as a “generic, common descriptive term for the
brokerage services to which Merrill Lynch first applied the term,” and there was no
evidence of record that the term had been used before being introduced by Merrill
Lynch). See also In re Ferrero S.p.A., 24 USPQ2d 1155, 1157 (TTAB 1992)
(“Common sense leads us to conclude that if a term is generic for a type of a product
that has been on the market for decades, evidence of its use by others in the
marketplace should be available and should be considered.”).
Thus, based on the entirety of the record before us, we have doubt about whether
SKINSLEEVES is perceived by the relevant public as a generic name for medical
protective fabric skin coverings for wound prevention. Such doubt must be resolved
in Applicant's favor. See In re Tennis Industry Association, 102 USPQ2d at 1680
(five examples found to be insufficient evidence that TENNIS INDUSTRY
ASSOCIATION was generic).
III. Whether SKINSLEEVES Is Merely Descriptive?
A term is merely descriptive of goods within the meaning of Section 2(e)(1) if it
forthwith conveys an immediate idea of an ingredient, quality, characteristic,
Serial No. 85206911
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feature, function, purpose or use of the goods or services. In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). See
also, In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). Whether a mark
or a component of a mark is merely descriptive is determined in relation to the
goods for which registration is sought and the context in which the term is used, not
in the abstract or on the basis of guesswork. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Remacle, 66 USPQ2d 1222, 1224
(TTAB 2002). A term need not immediately convey an idea of each and every
specific feature of the goods or services in order to be considered merely descriptive;
it is enough if it describes one significant attribute, function or property of them.
See In re Gyulay, 3 USPQ2d at 1010; In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973). This requires consideration
of the context in which the mark is used or intended to be used in connection with
those goods or services, and the possible significance that the mark would have to
the average purchaser of the goods in the marketplace. See In re Chamber of
Commerce of the U.S., 102 USPQ2d at 1219; In re Bayer Aktiengesellschaft, 488 F.3d
960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); In re Abcor Dev. Corp., 200 USPQ at
218; In re Venture Lending Assocs., 226 USPQ 285 (TTAB 1985). The question is not
whether someone presented only with the mark could guess the products listed in
the description of goods. Rather, the question is whether someone who knows what
the products are will understand the mark to convey information about them.
DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d
Serial No. 85206911
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1753, 1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-
1317 (TTAB 2002). See also In re Patent & Trademark Services Inc., 49 USPQ2d
1537, 1539 (TTAB 1998); In re Home Builders Association of Greenville, 18 USPQ2d
1313, 1317 (TTAB 1990); In re American Greetings Corp., 226 USPQ 365, 366
(TTAB 1985).
When two or more merely descriptive terms are combined, the determination of
whether the composite mark also has a merely descriptive significance turns on the
question of whether the combination of terms evokes a new and unique commercial
impression. If each component retains its merely descriptive significance in relation
to the goods or services, the combination results in a composite that is itself merely
descriptive. In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371
(Fed. Cir. 2004) (quoting Estate of P.D. Beckwith, Inc. v. Commissioner, 252 U.S.
538, 543 (1920). See also In re Tower Tech, Inc., 64 USPQ2d at 1318
(SMARTTOWER merely descriptive of commercial and industrial cooling towers);
In re Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001) (AGENTBEANS merely
descriptive of computer programs for use in developing and deploying application
programs); In re Putman Publishing Co., 39 USPQ2d 2021 (TTAB 1996) (FOOD &
BEVERAGE ONLINE merely descriptive of news and information services in the
food processing industry). However, a mark comprising a combination of merely
descriptive components is registrable if the combination of terms creates a unitary
mark with a unique, non-descriptive meaning, or if the composite has a unique or
incongruous meaning as applied to the goods or services. See In re Colonial Stores
Serial No. 85206911
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Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968) (SUGAR & SPICE for “bakery
products”); In re Shutts, 217 USPQ 363 (TTAB 1983) (SNO-RAKE for “a snow
removal hand tool having a handle with a snow-removing head at one end, the head
being of solid uninterrupted construction without prongs”). Thus, we must consider
the issue of descriptiveness by looking at the mark in its entirety.
“On the other hand, if one must exercise mature thought or follow a multi-stage
reasoning process in order to determine what product or service characteristics the
term indicates, the term is suggestive rather than merely descriptive.” In re Tennis
in the Round, Inc., 199 USPQ 496, 498 (TTAB 1978). See also In re Shutts, 217
USPQ at 364-65; In re Universal Water Systems, Inc., 209 USPQ 165, 166 (TTAB
1980). In this regard, “incongruity is one of the accepted guideposts in the evolved
set of legal principles for discriminating the suggestive from the descriptive mark.”
In re Shutts, 217 USPQ at 365. See also In re Tennis in the Round, Inc., 199 USPQ
at 498 (the association of applicant’s mark TENNIS IN THE ROUND with the
phrase “theater-in-the-round” creates an incongruity because applicant’s services do
not involve a tennis court in the middle of an auditorium). On the spectrum of
distinctiveness, the dividing line between merely descriptive and suggestive is a
fine one. In re Gyulay, 3 USPQ2d at 1010. See also In re Recovery, Inc., 196 USPQ
830, 831 (TTAB 1977).
The Trademark Examining Attorney, relying on the evidence to prove that
SKINSLEEVES is generic, argues that because she has established that
SKINSLEEVES is generic for Applicant’s goods, the mark is also merely
Serial No. 85206911
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descriptive. H. Marvin Ginn Corp. v. Int'l Ass'n of Fire Chiefs, Inc., 228 USPQ at
530 (quoting Weiss Noodle Co. v. Golden Cracknel & Specialty Co., 290 F.2d 845,
847, 129 USPQ 411, 413 (C.C.P.A. 1961), “[t]he name of a thing is in fact the
ultimate in descriptiveness.”).49 However, in the first Office Action (March 30,
2011), the Trademark Examining Attorney based the descriptiveness refusal on the
following logic:
The wording “skin” is defined as “1. the outer layer of a
person’s or animal’s body.” See attached dictionary
excerpt, Macmillan.com. The wording “sleeves” is defined
as “2a. paper or plastic cover that protects something.” Id.
The combined wording “skin sleeves” is used in the
medical industry to describe a protective skin coverings
[sic].
Therefore, the mark SKINSLEEVES, as applied to the
identified goods merely describes that the applicant’s
goods feature skin sleeve coverings. Accordingly, the
proposed mark is merely descriptive, and registration is
refused on the Principal Register under Section 2(e)(1).
Applicant argues that SKINSLEEVES “is illusory and suggestive and only
indirectly references Applicant’s goods [medical protective fabric skin coverings for
wound prevention], and is therefore not ‘merely descriptive.’”50 Applicant explains
that SKINSLEEVES is not the common or usual way of describing the goods and
that, therefore, the compound term SKINSLEEVES conveys no immediate
meaning. In other words, “common usage would lead one to first think
‘SKINSLEEVES’ means a sleeve made of skin” and, therefore, “[a] thought process

49 14 TTABVUE 12.
50 12 TTABVUE 21.
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is required to the conclusion that the mark makes an indirect reference to the
character of the goods.”51
As we noted in the discussion regarding Applicant’s use of the term
SKINSLEEVES infra, the word “sleeves” is descriptive, if not generic, when used in
connection with protective fabric skin coverings for wound prevention. In that
discussion, we referenced Applicant’s use of “Arm Sleeves” and “Leg Sleeves,” as
well as numerous third-party references to sleeves (e.g., GERI-SLEEVES, GLEN
SLEEVE II Arm Protectors, limb sleeves, and fabric sleeves, etc.).52
The question we face, then, is whether “skin” when coupled with the descriptive
term “sleeves” creates a trademark or merely describes a sleeve with particular,
readily understood attributes. In re Sun Microsystems, Inc., 59 USPQ2d at 1086. As
indicated above, the issue of whether a mark is merely descriptive is determined by
whether someone who knows what the products are will understand the mark to
convey information about them. DuoProSS Meditech Corp. v. Inviro Med. Devices,
Ltd., 103 USPQ2d at 1757 (quoting In re Tower Tech, Inc., 64 USPQ2d at 1317). In
other words, we need to determine what the term SKINSLEEVES used in
connection with medical protective fabric skin coverings for wound prevention
conveys to medical professionals in charge of patient safety?
We find that the mark SKINSLEEVES when used in connection with medical
protective fabric skin coverings for wound prevention immediately engenders the
commercial impression of “sleeves for skin,” not “sleeves of skin.” See In re

51 12 TTABVUE 22.
52 See footnote 26.
Serial No. 85206911
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Entenmann’s, Inc., 15 USPQ2d 1750, 1751 (TTAB 1990), aff'd in opinion not for
publication, Appeal No. 90-1495 (Fed. Cir. February 13, 1991) (finding OATNUT for
bread to be merely descriptive even though there is no such thing as oat nuts
because to be merely descriptive, the mark does not have to describe the products
with absolute exactness). Our finding of fact is corroborated by the Prosthetics
Research Specialists, Inc. (prostheticsresearch.com) and 3B Scientific websites.53
Prosthetics Research Specialists, Inc. advertises the sale of “U-Flate” Skin Sleeves
as coverings for prosthetic limbs (i.e., “a shrinkable skin sleeve”). The 3B Scientific
website advertises that “Life/form® Difficult Access Infant IV & IO skin sleeves
have been developed to fit over the arms and legs of most infant training products.”
While these two companies are not using the term “skin sleeves” to identify
Applicant’s goods, coverings for prosthetic limbs and limb covers for manikins used
for practicing medical procedures are sufficiently analogous to Applicant’s products
to provide insight as to how medical professionals perceive Applicant’s mark.
Further, the wide third-party use of the word “sleeve” in connection with medical
protective fabric skin coverings for wound prevention demonstrates that medical
professionals are accustomed to seeing, in connection with medical protective fabric
skin coverings for wound prevention, the word “sleeve” preceded by another
descriptive term (e.g., arm, leg, and limb). Thus when confronted with the term
SKINSLEEVES, they would perceive a sleeve for skin.

53 March 30, 2011 Office Action.
Serial No. 85206911
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The fact that SKINSLEEVES does not appear in a dictionary is not
determinative. See In re Sun Microsystems Inc., 59 USPQ2d at 1087; In re Orleans
Wines Ltd., 196 USPQ 516 (TTAB 1977). Likewise, the fact that Applicant may be
the first entity using the phrase SKINSLEEVES is not dispositive where, as here,
the term unequivocally projects a merely descriptive connotation. See In re
MBAssociates, 180 USPQ 338, 339 (TTAB 1973). Moreover, it is not necessary that
the term be in common usage in the particular industry before it can be found
merely descriptive. See In re Sun Microsystems Inc., 59 USPQ2d at 1087; In re
National Shooting Sports Foundation, Inc., 219 USPQ 1018, 1020 (TTAB 1983).
Anyone marketing medical protective fabric skin coverings for wound prevention
should have the right to use the term “skin sleeves” to describe their products.54 In
this regard, we note the three academic works referenced in our previous analysis of
whether SKINSLEEVES is a generic term as probative that medical professionals
used the term “skin sleeves” to describe medical protective fabric skin coverings for
wound prevention.

54 The combination of the words “skin” and “sleeves” to form Applicant’s mark does not
evoke a new and unique commercial impression. Numerous cases have held that combining
two words which as a whole are merely descriptive of the goods or services into a single
term does not avoid a finding of mere descriptiveness for the combined term. See, e.g.,
Minn. Mining & Mfg. Co. v. Addressograph-Multigraph Corp., 155 USPQ 470, 472 (TTAB
1967) (“[i]t is almost too well established to cite cases for the proposition that an otherwise
merely descriptive term is not made any less so by merely omitting spaces between the
words”). Cf. Seaguard Corp. v. Seaward International, Inc., 223 USPQ 48, 51 (TTAB 1984)
(SEA GUARD and SEAGUARD are "essentially identical"); In re Best Western Family Steak
House, Inc., 222 USPQ 827, 827 (TTAB 1984) (“there can be little doubt that the marks
[BEEFMASTER for restaurant services and BEEF MASTER for frankfurters and bologna]
are practically identical and indeed applicant has not argued otherwise.”)
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In sum, we find that prospective customers for medical protective fabric skin
coverings for wound prevention, if confronted with SKINSLEEVES used in
conjunction therewith, would, without need of thought, imagination or perception,
be immediately apprised of the nature of Applicant's goods and, therefore, find that
SKINSLEEVES is merely descriptive.
IV. Whether SKINSLEEVES has acquired distinctiveness?
The burden of proving that a mark has acquired distinctiveness is on the
applicant. Yamaha Int’l Corp. v. Yoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001,
1004 (Fed. Cir. 1988). Applicant’s evidence of acquired distinctiveness includes the
following:
1. The declaration of Gary Platzman, Applicant’s Vice President of Sales &
Marketing.55 Mr. Platzman attested to the following facts:
A. Applicant “has been using the mark SKINSLEEVES for patient
protectors for more than ten years”;
B. Applicant “started marketing the goods with [SKINSLEEVES] at least
as early as 1998;
C. Applicant’s use of SKINSLEEVES has been substantially exclusive
since at least 2004; and
D. Competitors recognize Applicant’s trademark rights in the term
SKINSLEEVES as demonstrated by their use of terms other than “Skin Sleeves” to

55 September 30, 2011 Response to an Office Action.
Serial No. 85206911
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identify their products (e.g., arm protector, protector, patient protectors, and
stockinet);
2. Declarations from seven customers: a patient safety coordinator, a manager
of a home medical supply company, four registered nurses, and a nurse supervisor.56
All of the declarants attested to the following:
A. They are familiar with “a number of companies that market and sell
patient protection products”; and
B. They recognize SKINSLEEVES as the trademark for Applicant’s
products; and
3. Counsel’s statement that “[a]nnual sales figures for products bearing
[Applicant’s] trademark in 2010 and 2011 of over 100,000 units per year indicate
the prevalence and exposure of Applicant’s SKINSLEEVES trademark and product
in the relevant industry.”57

56 January 8, 2013 Response to an Office Action. While the declarations of Applicant’s
customers are probative, proof of acquired distinctiveness may require more than the
existence of a relatively small number (7) of people who associate the mark with Applicant.
See In re The Paint Prods. Co., 8 USPQ2d 1863, 1866 (TTAB 1988) (“Because these
affidavits were sought and collected by applicant from ten customers who have dealt with
applicant for many years, the evidence is not altogether persuasive on the issue of how the
average customer for paints perceives the words ‘PAINT PRODUCTS CO.’ in conjunction
with paints and coatings.”). See also Mag Instrument Inc. v. Brinkmann Corp., 96 USPQ2d
1701, 1723 (TTAB 2010) (finding inter alia sixteen declarations of little persuasive value).
Compare In re Bose Corp., 216 USPQ 1001, 1005 (TTAB 1983), aff’d, 772 F.2d 866, 227
USPQ 1 (Fed. Cir. 1985) (deeming retailer’s statement that he has been in contact with
many purchasers of loudspeaker systems of whom a substantial number would recognize
the depicted design as originating with applicant competent evidence of secondary
meaning).
57 12 TTABVUE 24. Applicant has made no actual evidence of record regarding its sales or
advertising. We have only Applicant's counsel's statement as to how many units Applicant
sold in 2010 and 2011.

Serial No. 85206911
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In view of the facts that (i) there is no dictionary definition for “skin sleeve,” (ii)
with numerous competitors in the field of medical protective fabric skin coverings
for wound prevention, there is vague evidence in a website advertisement of only
one competitor using that term, and (iii) there are only three academic articles
referencing the term “skin sleeves,” we find that SKINSLEEVES is not so highly
descriptive that its registrability under Section 2(f) may not be determined on the
basis of Applicant’s declaration of substantially exclusive and continuous use since

Putting aside whether a declaration from outside counsel could
ever qualify as acceptable proof of these sort of facts, we have
here no foundational information about counsel's investigation
of, or understanding of, applicant's business, that would put
him in a position to make statements regarding the marketing
of the products at issue, which in this case is essential to our
analysis of the registrability of the mark. Cf. In re Simulations
Publications, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA
1975) (where appellant argued that the magazines at issue deal
with unrelated subject matter, the court held that
“[s]tatements in a brief cannot take the place of evidence.”); In
re Scarbrough, 500 F.2d 560, 182 USPQ 298, 302 (CCPA 1974)
(where patent claims were rejected for the insufficiency of
disclosure under Section 112, the response of appellant was
argument in lieu of evidence leading the court to hold that
“argument of counsel cannot take the place of evidence lacking
in the record.”); In re Vsesoyuzny Ordena Trudovogo Krasnogo
Znameni, 219 USPQ 69, 70 (TTAB 1983) (applicant argued
without corroborating evidence that its brochure would be
recognized as an offer of services leading the Board to hold that
“[u]nfortunately we have no evidence of record to this effect
and assertions in briefs are normally not recognized as
evidence”); Spin Physics, Inc. v. Matsushita Electric Industrial
Co., Ltd., 168 USPQ 605, 607 (TTAB 1970) (“The arguments
and opinions of counsel for applicant are wholly insufficient to
overcome the facts established by the Sugaya report.”).
In re U.S. Tsubaki, Inc., 109 USPQ2d 2002, 2006 (TTAB 2014). Cf. In re DeBaun, 687 F.2d
459, 214 USPQ 933, 934 n.4 (CCPA 1982) (“we need not evaluate the weight to be given to
the attorney's declaration with respect to statements more appropriately made by
appellant”); In re Nat'l Distiller & Chem. Corp., 297 F.2d 941, 132 USPQ 271, 274 (CCPA
1962). In any event, we have no idea whether Applicant’s sales are substantial or de
minimis. Without context, the statement from Applicant’s counsel is of little value.
Serial No. 85206911
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2004. See In re Synergistics Research Corp., 218 USPQ 165 (TTAB 1983) (holding
applicant’s declaration of five years’ use sufficient to support registrability under
§2(f) of BALL DARTS for equipment sold as a unit for playing a target game, in
view of lack of evidence that the term is highly descriptive (e.g., no dictionary
evidence of any meaning of BALL DARTS and no evidence of use of the term by
competitors or the public)).
In view of the foregoing, we find that Applicant has established that
SKINSLEEVES has acquired distinctiveness.
Decision: The refusal to register Applicant’s mark SKINSLEEVES on the
ground that it is generic is reversed.
Although we affirm the refusal to register Applicant’s mark on the ground that it
is merely descriptive, the refusal based on Applicant’s failure to show acquired
distinctiveness is reversed.