Kimberly-Clark Worldwide, Inc.v.JustGoGirl, LLC

Trademark Trial and Appeal Board

Oct 23, 2018

No. 91227530 (T.T.A.B. Oct. 23, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 23, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Opposition Nos. 91227530 (parent), 91231834, 91231835
Cancellation No. 92065028

_____

Kimberly-Clark Worldwide, Inc.
v.
JustGoGirl, LLC
_____

Jennifer E. Hoekel and Donna F. Schmitt of Armstrong Teasdale, LLP
for Kimberly-Clark Worldwide, Inc.

Burt Magen of Vierra Magen Marcus LLP
for JustGoGirl, LLC
_____
Before Wolfson, Adlin, and Lynch
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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I. Background
This consolidated proceeding includes three oppositions and a cancellation, all
brought by Kimberly-Clark Worldwide, Inc. (“K-C”) against JustGoGirl, LLC, the
applicant and registrant (“JustGoGirl”).1 The consolidated cases are fully briefed.
A. The Cancellation Proceeding — ATHLETIC LEAKS
K-C seeks to cancel JustGoGirl’s registration of the mark ATHLETIC LEAKS in
standard characters for “Feminine hygiene pads; Incontinence pads” in International
Class 5.2 K-C alleges that the mark is merely descriptive, lacks acquired
distinctiveness; and is generic.3
In its answer, JustGoGirl “admits that registration of ATHLETIC LEAKS may be
inconsistent with [K-C]’s right to freely describe its products using the term
ATHLETIC LEAKS,” and otherwise denies the salient allegations of the petition.4

1 Upon consolidation, 11 TTABVUE, Opposition No. 91227530 became the “parent” case, in
which all filings reside. Unless otherwise indicated, TTABVUE citations are to the parent
Opposition No. 91227530.
2 Registration No. 4837350 issued October 20, 2015.
3 Cancellation No. 92065028, 1 TTABVUE (Petition to Cancel). In its Brief in the consolidated
cases, K-C argued genericness as a “failure to function” claim based on the allegedly
descriptive nature of the mark. JustGoGirl has objected because it contends K-C did not plead
failure to function and JustGoGirl “did not have an opportunity to take discovery or gather
its own evidence” on this claim. 25 TTABVUE 19. Because as discussed below, the
descriptiveness was also tried and is dispositive, we do not reach K-C’s other claim (whether
nominated as genericness or failure to function).
4 Cancellation No. 92065028, 4 TTABVUE (Answer).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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B. The Opposition Proceedings—WORKOUT LEAKS (No. 91231834), RUN
LEAKS (No. 91231835), and FITNESS LEAKS (No. 91227530)
K-C opposes JustGoGirl’s three pending applications to register WORKOUT
LEAKS, RUN LEAKS, and FITNESS LEAKS, all in standard characters for
“Feminine hygiene pads; Incontinence garments; Incontinence pads; Menstruation
pads; Sanitary pads” in International Class 5.5 K-C alleges the same grounds as in
the cancellation. In its Answers in the WORKOUT LEAKS and RUN LEAKS cases,
JustGoGirl “admits that registration of [the mark] may be inconsistent with [K-C]’s
right to freely describe its products using the [mark],” and otherwise denies the
salient allegations of the complaint.6 In the FITNESS LEAKS case, JustGoGirl
denies the salient allegations of the complaint.7
C. Affirmative Defenses
In each proceeding, JustGoGirl asserted various affirmative defenses but because
it did not pursue or even argue any of them, they are waived. See Harry Winston, Inc.
v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1422-23 n.7 (TTAB 2014); Alcatraz
Media v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 n.6 (TTAB 2013),
aff’d mem., 565 Fed. Appx. 900 (Fed. Cir. 2014).

5 Application Serial No. 87077068, filed on June 20, 2016, based on Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b); Application Serial No. 87077054, filed on June 20, 2016,
based on Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b); Application Serial No.
86641073 filed on May 26, 2015, based on Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b).
6 Opposition No. 91231834, 7 TTABVUE; Opposition No. 91231835, 7 TTABVUE.
7 Opposition No. 91227530, 4 TTABVUE.
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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II. Evidentiary Record
The record consists of:
• The pleadings.
• The file of challenged Registration No. 4837350.8
• The files of opposed Application Serial Nos. 87077068, 87077054, and
86641073.9

• K-C’s expert testimony declaration and report of Travis L. Bullock, MD,
including numerous exhibits.10

• K-C’s expert testimony declaration and report of Brandon Chuang, including
numerous exhibits.11

• Certain of JustGoGirl’s written discovery responses.12
• Internet materials submitted under K-C’s Notice of Reliance.13
• The testimony declaration of Kade Applegate, K-C’s Brand Manager, as
corrected, including numerous exhibits.14

• The testimony declaration of Brooke Solis, JustGoGirl’s founder and Chief
Executive Officer, including numerous exhibits.15

• Certain of K-C’s written discovery responses.16

8 See 37 C.F.R. § 2.122(b).
9 See 37 C.F.R. § 2.122(b).
10 12 TTABVUE.
11 13 TTABVUE.
12 14 TTABVUE 6-21; 15 TTABVUE (confidential).
13 14 TTABVUE 22-55.
14 22 TTABVUE (corrected declaration); 16 TTABVUE; 17 TTABVUE (confidential).
15 19 TTABVUE.
16 20 TTABVUE.
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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III. Standing
K-C must show a real interest in the proceeding and a reasonable basis for its
belief of damage. See 15 U.S.C. §§ 1063, 1064; Empresa Cubana Del Tabaco v. Gen.
Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014); Ritchie v.
Simpson, 170 F.3d 1092, 50 USPQ2d 1023 (Fed. Cir. 1999). K-C has advertised,
promoted and sold incontinence pads and feminine hygiene products, and apparently
its application to register FITNESS was provisionally refused based on a likelihood
of confusion with JustGoGirl’s involved application in Opp. No. 91227530.17
K-C’s status as a competitor in the field with an interest in using terms in the
marks18 establishes its standing. See, e.g., id. (standing can be found based on
“descriptive use of term in registered mark”); Miller v. Miller, 105 USPQ2d 1615,
1618 (TTAB 2013) (competing law firm had standing to oppose competitor’s
application). Stuart Spector Designs Ltd. v. Fender Musical Instruments Corp., 94
USPQ2d 1549, 1553 (TTAB 2009) (competitors have standing to oppose registration
based on alleged genericness and lack of distinctiveness of product configuration).
The provisional refusal of K-C’s application also establishes its standing. Lipton
Industries, 213 USPQ at 189 (“Thus, to have standing in this case, it would be
sufficient that [plaintiff] prove that it filed an application and that a rejection was

17 16 TTABVUE 2 (Applegate declaration) (stating that K-C “designs, manufactures, and sells
urinary incontinence and feminine care products in the U.S.” and providing sales and market
share data). Although K-C failed to introduce the application into evidence, both parties make
arguments about it and we have therefore considered it. 25 TTABVUE 14 (JustGoGirl’s
Brief).
18 13 TTABVUE 8-9, 16-21 (Chuang declaration) (K-C uses the terms “leak,” “leakage,” and
“leaking” to promote its products; examples provided).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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made because of [defendant’s] registration); Tri-Star Marketing, LLC v. Nino Franco
Spumanti S.R.L., 84 USPQ2d 1912, 1914 (TTAB 2007). In any event, JustGoGirl does
not dispute K-C’s standing.
IV. Descriptiveness
K-C claims that JustGoGirl’s marks immediately convey knowledge of a quality,
characteristic, function, feature, purpose or use of the goods with which they are used.
In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). “[M]arks
that are merely descriptive cannot be registered unless they acquire secondary
meaning under § 2(f) of the Lanham Act, 15 U.S.C. § 1052(f).” In re N.C. Lottery, 866
F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017). We must determine
descriptiveness not in the abstract, but in relation to the goods for which registration
is sought, the context in which the term is used, and the possible significance that
the term is likely to have to the average prospective purchaser encountering the goods
in the marketplace. See In re Chamber of Commerce, 102 USPQ2d at 1219; In re Bayer
AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007); In re Abcor Dev. Corp.,
588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978).
For marks with multiple components such as these, we “may not ‘dissect’ the mark
into isolated elements, without ever consider[ing] . . . the entire mark, [but we] may
weigh the individual components of the mark to determine the overall impression or
the descriptiveness of the mark and its various components.” See Real Foods Pty Ltd.
v. Frito-Lay N. Am., Inc., Nos. 2017-1959, 2017-2009, 2018 WL 4781153, 2018 U.S.
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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App. LEXIS 28099 at *8 (Fed. Cir. Sept. 21, 2018 sealed op. and Oct. 4, 2018 public
op.) (internal quotations and citations omitted).
All four marks include LEAKS as the second of two words. JustGoGirl introduced
dictionary entries for “leak” that include the following definitions: “to let a substance
in or out through an opening” and “the act of leaking.”19 The plural LEAKS has the
same meaning as the singular LEAK.20 JustGoGirl seems to acknowledge in its Brief
that LEAK is a descriptive term for JustGoGirl’s goods. Specifically, in criticizing K-
C’s position, JustGoGirl states that K-C “introduced evidence that the second (non-
dominant) word is commonly used,”21 but asserts, “[i]n each case, the first word of the
mark (ATHLETIC, FITNESS, WORKOUT and RUN) is not descriptive of the recited
goods (e.g., incontinence pads) and prevents the mark from being merely
descriptive.”22 Voluminous evidence in the record, discussed in more detail below,
confirms the descriptiveness of LEAKS in the context of these goods.
According to Dr. Bullock, a board-certified urologist with expertise in urinary
incontinence, including stress urinary incontinence, “it is common for medical
professionals to use terms such as ‘leak,’ ‘leakage,’ or ‘leaking’ when discussing

19 19 TTABVUE 28 (Merriam-Webster Dictionary). We also take judicial notice of the online
Merriam-Webster Dictionary definition of “leak,” “an act of urinating – used especially in the
phrase take a leak.” Entry for “leak” in merriam-webster.com, in relevant part. The Board
may take judicial notice of definitions from dictionaries, including online dictionaries that
exist in printed format or have regular fixed editions. E.g., In re C.H. Hanson Co., 116
USPQ2d 1351, 1355 n.10 (TTAB 2015).
20 See, e.g., 19 TTABVUE 19 (American Heritage Dictionary).
21 25 TTABVUE 11 (JustGoGirl’s Brief).
22 25 TTABVUE 11 (JustGoGirl’s Brief).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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urinary incontinence with patients and other lay people.”23 Dr. Bullock testified that
stress urinary incontinence tends to occur in conjunction with physical activity that
increases intraabdominal pressure on the bladder.24 “Exercise-induced urinary
incontinence” is another common name for this condition.25 Dr. Bullock’s declaration
includes as exhibits medical brochures he provides to patients, which describe stress
incontinence as “leakage” and “leaks” experienced with “exercising,” “physical
activity,” and “certain activities, such as walking, running, or exercising.”26 To the
extent JustGoGirl criticizes the expert report and opinion for focusing primarily on
the term LEAKS, less than or to the exclusion of other terms in the marks or the
marks in their entireties,27 “[t]here is no requirement that an expert report provide
an opinion as to the marks as a whole for the TTAB to rely on it.” Real Foods Pty,
2018 U.S. App. LEXIS 28099 at *14. The expert report may address only a particular
term or terms, and we take it into account when we consider the marks in their
entireties. See id. at *15.
Mr. Chuang, Vice President and Principal of 2e Creative, Inc., a marketing and
advertising agency specializing in the healthcare, medical technology, and life
sciences industries, provided expert testimony on marketing for incontinence and

23 12 TTABVUE 8 (Bullock declaration).
24 Id.
25 Id.
26 Id. at 9, 20, 26, 31, 41.
27 25 TTABVUE 11, 20-21 (JustGoGirl’s Brief).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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feminine care products.28 He testified that “it is routine to use phrases in medical and
healthcare marketing that incorporate features or descriptions of medical conditions
to identify the purpose of the product.”29 Mr. Chuang conducted searches in an
advertisement database, the results of which he attached to his declaration, to opine
that “the use of the terms ‘leaks,’ ‘leakage,’ and ‘leaking’ is widespread for the
incontinence and feminine care product market and not unique to any one
company.”30 Mr. Chuang also stated that “it would be challenging to advertise in the
market for incontinence and feminine care products without the terms ‘leak,’
‘leakage,’ or ‘leaking.’”31
Mr. Applegate’s declaration includes sample excerpts of K-C’s advertisements for
its products, many of which include the term “leaks” to refer to incontinence.32 One
advertisement for Poise features a photo of a woman in a fitness class, touting the
product as helping with “Light Bladder Leakage.”33 Another Poise ad shows a photo
of a woman paddle-boarding with the caption, “A Pad-Free Light Bladder Leakage
Solution,” and the explanation that it “helps stop leaks before they happen.”34

28 13 TTABVUE 6 (Chuang declaration).
29 Id. at 8.
30 Id. at 8.
31 Id. at 9.
32 16 TTABVUE 6-20 (Applegate declaration, Exhibits 1 & 2, 22 TTABVUE (correction).
33 Id. at 26.
34 Id. at 27 (emphasis in original).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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Another ad features women in a cycling class and refers to Poise as “The Leading
Brand for Light Bladder Leakage.”35
Additional evidence relates not only to LEAKS, but also the other terms appearing
in JustGoGirl’s marks. The other terms in JustGoGirl’s marks are defined as follows:
• ATHLETIC: “Characterized by or involving physical activity or exertion;
active”;36 and “of or relating to athletes or athletics [defined as “exercises
and games requiring physical skill, strength, and endurance]”37

• FITNESS: “Good health or physical condition, especially as the result of
exercise and proper nutrition”38

• RUN: “To move swiftly on foot so that both feet leave the ground during
each stride”; and “an act of running”39

• WORKOUT: “A session of exercise or practice to improve fitness, as for
athletic competition: had an early-morning workout daily before the
marathon”40

These definitions make clear that each of the terms either refers to or directly relates
to physical exercise. The expert testimony, medical literature and articles on
incontinence, and evidence of advertising in the relevant industry show that
consumers would recognize physical exercise as a trigger for incontinence. In fact,
“exercise-induced urinary incontinence” is used to refer to this condition,41 which
occurs during “exercising,” “physical activity,” and “certain activities, such as

35 Id. at 28.
36 19 TTABVUE 18 (American Heritage Dictionary).
37 Id. at 26 (Merriam-Webster Dictionary entries for “athletic” and “athletics”).
38 Id. at 19 (American Heritage Dictionary).
39 Id. at 21.
40 Id. at 22.
41 8 TTABVUE 8 (Bullock declaration).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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walking, running, or exercising.”42 This is consistent with JustGoGirl’s online
statement that “athletic incontinence” can occur during “running [and] high-intensity
workouts.”43
K-C also introduced news articles relating to incontinence that connect “leak” or
“leakage” with physical exercise in a descriptive manner.44 An article from the Naples
Daily News includes descriptive use of “leak,” in connection with “workout,” reporting
that one woman experienced “[u]rine leaking involuntarily,” noting “there it was …
every time she played tennis or did her regular aerobic workouts.”45 Along the same
lines, Mr. Chuang’s declaration includes and discusses an article in Oklahoma Sports
& Fitness magazine entitled “The End of Fitness Leaks,”46 describing a condition it
calls “athletic incontinence.”47 The article reports that “up to 95% of women have not
sought treatment for athletic leaks.”48 The declaration also includes an article from
the KARE 11 News website entitled “Your embarrassing fitness questions, answered”
that discusses “stress incontinence – meaning you involuntarily leak out a little urine.
It can happen when you exercise….”49 In addition to directly using “fitness leaks” and

42 Id. at 9, 20, 26, 31, 41.
43 13 TTABVUE 103 (justgogirl.com).
44 16 TTABVUE 34-204. We do not consider the foreign articles, for example, those from the
Irish Times, the Daily Mail Online (U.K.), the Sunday Mirror (U.K.), the US Official News
(Pakistan), the Globe and Mail (Canada), and the Australian.
45 16 TTABVUE 34 (2000 WLNR 11328494).
46 Id. at 139, 169.
47 Id. at 169.
48 Id.
49 Id. at 197 (KARE11.com).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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“athletic leaks” descriptively, the articles show that exercise-related terms such as
“fitness,” “athletic” and “workout” are used in connection with incontinence, which is
interchangeable with “leaks.”
JustGoGirl’s own marketing is similar, and effectively an admission that the
terms in question are merely descriptive:
• a presentation it gave to K-C referring to JustGoGirl’s product as “a fitness
leak pad’”50 and stating that “[t]he patent was drafted with a single goal, to
create a design that would allow a buyer to create and protect a new fitness
leak category;”51
• JustGoGirl’s product page on Amazon.com stating “[w]e designed this product
for women who experience athletic leaks;’”52 and
• JustGoGirl’s webpage justgogirl.com refers to “athletic incontinence,”53 as well
as the following (and other) webpages from the justgogirl.com website:54

50 13 TTABVUE 9 (Chuang declaration).
51 Id. at 134.
52 Id. at 9, 113.
53 Id. at 103 (justgogirl.com).
54 16 TTABVUE 485-490 (justgogirl.com screenshots attached to Applegate declaration).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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.
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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JustGoGirl explains in these webpages that “fitness leaks are a type of urine
incontinence known as ‘stress leaks’” and a “type of athletic incontinence,” and thus
uses “leaks” to identify the condition its products address. The first page also shows
a photo of someone running, with text including, “[d]on’t let fitness leaks slow you
down!” and stating that JustGoGirl’s product lets a user “run … as hard as you want.”
Another page states that “[f]itness leaks … often occur (especially on a full bladder)
when you: Work out….”
Earlier versions of JustGoGirl’s website include similar descriptive uses.55
JustGoGirl’s own website and the Amazon.com product page for JustGoGirl’s
goods reflect the descriptiveness of the terms in its marks. See Real Foods Pty, 2018
U.S. App. LEXIS 28099 at *9-10 (“Indeed, Real Foods’ advertising materials use the
word ‘thin’ to describe their products.”); see also N.C. Lottery, 123 USPQ2d at 1709
(marks considered in their commercial context, as reflected in “[w]ebsites,
publications, and use ‘in labels, packages, or in advertising material directed to the
goods.’”). The terms in JustGoGirl’s marks describe the condition for which
JustGoGirl’s products are used – athletic leaks, fitness leaks, run leaks and workout
leaks. Each mark signifies incontinence related to exercise of some kind – what Dr.
Bullock referred to as exercise-induced urinary incontinence.56

55 14 TTABVUE 36 (incontinence events called “leaks” and repeated references to “athletic
incontinence”), 45-47 (“every woman deserves to feel good when she works out, …” and the
product “provides enough coverage and fits perfect for all women, from runners to fans of
high-intensity training;” testimonials on the page tout the use of the product for running;
references to “occasional leaks,” “[u]rine leaks,” and “bladder leakage”), 52 (information about
“Exercise Induced Leaks, or athletic incontinence”) (justgogirl.com).
56 We do not agree with JustGoGirl that K-C’s registration of the mark LEAK LOCK for
disposable diapers precludes K-C from arguing the descriptiveness of LEAKS in the context
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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JustGoGirl characterizes itself as a small company that did not consult with
intellectual property attorneys when setting up its website and designing its
packaging, noting that it “may have initially made a few mistakes regarding how [its]
trademarks were used.”57 However, JustGoGirl’s intent is irrelevant. The only
question is whether the proposed marks are descriptive, and here the nature of
JustGoGirl’s use of the terms in its marks helps establish their descriptiveness.
JustGoGirl has not argued, and we do not find, that the combinations of terms in
the marks FITNESS LEAKS, ATHLETIC LEAKS, WORKOUT LEAKS, and RUN
LEAKS create any new and different impression. If a combination of individually
descriptive terms retains the descriptive significance of the individual parts, the
mark as a whole is merely descriptive. In re Petroglyph Games Inc., 91 USPQ2d 1332,
1337 (TTAB 2009) (BATTLECAM merely descriptive for computer game software);
see also In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1823 (TTAB 2012) (holding
SEMICONDUCTOR LIGHT MATRIX merely descriptive of light and UV curing
systems composed primarily of light-emitting diodes for industrial and commercial
applications). Considering the marks in their entireties, each refers to incontinence
triggered by exercise, and therefore describes a feature of JustGoGirl’s products – the

of JustGoGirl’s marks, which we consider distinguishable from LEAK LOCKS. Similarly, K-
C’s pending application for FITNESS (the record does not include the identified goods or
services), is also distinguishable, does not prevent K-C from arguing the descriptiveness of
FITNESS LEAKS in this case, and we note that K-C’s application has been suspended
pending the disposition of these proceedings.
57 19 TTABVUE 2 (Solis declaration).
Opposition Nos. 91227530, 91231834, 91231835 and Cancellation No. 92065028
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medical condition they address. The marks describe types of exercise-induced urinary
incontinence.
Acquired distinctiveness under Section 2(f) is not at issue because JustGoGirl has
not asserted acquired distinctiveness.
V. Decision
The record shows, by a preponderance of the evidence, that each “mark is less an
identifier of the source of goods … and more a description of a feature or characteristic
of” them. N.C. Lottery, 123 USPQ2d at 1710. Because the marks merely describe the
condition JustGoGirl’s products address, the petition to cancel JustGoGirl’s
Registration No. 4837350 is granted, and K-C’s oppositions to JustGoGirl’s
Application Serial Nos. 87077068, 87077054, and 86641073 are sustained. Our
conclusion about mere descriptiveness is dispositive, and we need not reach the
remaining claim.