LogixHealth, Inc.

Trademark Trial and Appeal Board

Nov 25, 2014

No. 86044889 (T.T.A.B. Nov. 25, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 25, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re LogixHealth, Inc.
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Serial No. 86044889
_____

Evan A. Raynes of Symbus Law Group, LLC,
for LogixHealth, Inc.
Linda M. Estrada, Trademark Examining Attorney, Law Office 104,
Chris Doninger, Managing Attorney.
_____

Before Bucher, Lykos and Hightower,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
LogixHealth, Inc. (hereinafter “Applicant”) seeks registration on the
Supplemental Register of the mark DOCTORPAYMENTS (in standard character
format) for the following services, as amended:
bill payment services provided through a website enabling
payors to make payments to payees and view their account
balances, their transaction histories, their insurance
information, and documents regarding their accounts to
assist them in making such payments in International
Class 36.1

1 Application Serial No. 86044889 was filed on the Principal Register on August 22, 2013,
based upon Applicant’s claim of first use anywhere and use in commerce since at least as
Serial No. 86044889
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 23(c), 15 U.S.C. § 1091(c), because the proposed mark
is a generic term when applied to online patient bill payment services for doctor’s
billings. After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. Applicant and the Trademark Examining Attorney filed
briefs. We affirm the refusal to register.
The Evidence
The Trademark Examining Attorney relies upon the following definitions of the
constituent terms of Applicant’s proposed mark:
doc·tor NOUN:
1. A
person, especially a physician, dentist, or veterinarian, trained in the
healing arts and licensed to practice. … 2

doctor NOUN
1. a licensed medical practitioner; … 3

payment noun
1. the act of paying
2. a sum of money paid … 4

pay·ment n.
1. The act of paying or the state of being paid.
2. An amount paid: received a large payment. 5

early as April 2013. On January 17, 2014, Applicant requested amendment to the
Supplemental Register.
2 http://education.yahoo.com/reference/dictionary/entry/doctor, as accessed by the Trademark
Examining Attorney on December 9, 2013.
3 http://www.freedictionary.org/?Query=doctor, as accessed by the Trademark Examining
Attorney on February 5, 2014; drawn from THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (4th ed. 2000).
4 http://www.collinsdictionary.com/dictionary/english/payments, as accessed by the
Trademark Examining Attorney on December 9, 2013.
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In the first Office action, the Examining Attorney provided examples from the
Internet where the word “payments” is commonly used in relation to online patient
bill payment services for doctor’s billings,6 and an example where “doctor payments”
is used as a term of art in an employee job description for a financial specialist:

Employee & Doctors Payment Services Specialist (St Louis, MO)
Posted on June 3, 2011 | Apply Now
TLC Vision is a premier eye surgery services company and one of the world’s largest providers of laser vision correction
services. At TLC, everyone is working toward the common goal of enabling people to see better than they ever have,
without corrective lenses.
TLC currently has a position open for an Employee and Doctors Payments Services Specialist. This positin [sp] will assists
in all aspects of company-wide payroll and doctor payments for TLC Centers business unit.
Job Description and Requirements
• …
• Assist in timely and accurate processing of doctor payments for the TLC Centers business unit.
• Download weekly doctor payment information to Great Plains from Pharos
• Cut checks for bi-weekly doctor payments
• Reconcile doctor payments to sub-system data (proprietary system).
• … 7

Applicant responded to this evidence by pointing to the following third-party
registrations8 showing that the PTO permits the registration of “Payment-formative”
marks preceded by other descriptive terms for payment-related services:

5 https://www.ahdictionary.com/word/search.html?q=payment, as accessed by the Trademark
Examining Attorney on August 21, 2014. Drawn from THE AMERICAN HERITAGE DICTIONARY
OF THE ENGLISH LANGUAGE (5th ed. 2014). The Board may take judicial notice of dictionary
definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594
(TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online
dictionaries that exist in printed format or regular fixed editions. In re Red Bull GmbH, 78
USPQ2d 1375 (TTAB 2006).
6 http://www/dymedsolutions.com and http://www.sutterhealth.org/billpay/, as accessed by
the Trademark Examining Attorney on December 9, 2013.
7 http://stlouis.mojobz.com/employee-doctors-payment-services-specialist-st-louis-mo.htm, as
accessed by the Trademark Examining Attorney on December 9, 2013.
Serial No. 86044889
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CONVENIENT
PAYMENTS
for “providing secure financial commercial transactions and
payment options for processing of electronic funds transfers,
ACH, credit card, debit card, electronic check, convenience fees,
and electronic payments; electronic payment, namely,
electronic payment processing of bill payment data via
electronic transmission, wireless transmission, telephone and a
global computer network” in International Class 36;9
EXPRESSPAYMENT for “electronic bill payment services, financial services, namely
processing of consumer's payments to third parties” in
International Class 36;10
GLOBAL
PAYMENTS
for “debit and credit card processing services” in International
Class 36;11
OFFICIAL
PAYMENTS
for, inter alia, “electronic payment and processing services,
namely, processing electronic payments made through prepaid
cards, credit cards, debit cards, electronic funds transfer, ACH,
electronic check and electronic payments, and transmission
and processing of bill payment data” in International Class
36;12
SIMPLE PERSONAL
PAYMENTS
for “banking services” in International Class 36;13
SMARTPAYMENTS for “computer software for processing, monitoring and
management of financial transactions” in International Class
9;14
PROPERTY
PAYMENTS
for “providing the temporary use of online non-downloadable
software for landlords to collect, track and report on, rent
payments from tenants; providing a website featuring

8 Applicant response of January 17, 2014, Ex. A.
9 Registration No. 4211744 issued on the Supplemental Register on September 18, 2012. No
claim is made to the exclusive right to use the word “Payments” apart from the mark as
shown.
10 Registration No. 2904786 issued under Section 2(f) of the Act on November 23, 2004;
Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged.
11 Registration No. 2793590 issued under Section 2(f) of the Act on December 16, 2003;
Section 8 affidavit (six-year) accepted and Section 15 affidavit acknowledged. No claim is
made to the exclusive right to use the word “Payments” apart from the mark as shown.
12 Registration No. 4174873 issued on July 17, 2012. No claim is made to the exclusive right
to use the word “Payments” apart from the mark as shown.
13 Registration No. 4129376 issued on April 17, 2012. No claim is made to the exclusive right
to use the term “Personal Payments” apart from the mark as shown.
14 Registration No. 3946374 issued on the Supplemental Register on April 12, 2011.
Serial No. 86044889
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technology for landlords to collect, track and report on, rent
payments from tenants” in International Class 42;15 and
U.S. PAYMENTS for, inter alia, “payment processing services, namely, electronic
payment transaction processing services and transmission of
payment data; and processing electronic payments made
through prepaid cards” in International Class 36.16

In subsequent Office actions, screen prints from the following websites were
placed into the record:
17

15 Registration No. 4394159 issued on the Supplemental Register on August 27, 2013.
16 Registration No. 4014740 issued under Section 2(f) of the Act as to the term “U.S.” on
August 23, 2011. No claim is made to the exclusive right to use the word “Payments” apart
from the mark as shown.
17 http://www.revolutioninfosystems.com/Hospital%20ERP.aspx, as accessed by the
Trademark Examining Attorney on February 5, 2014.
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18

S.C. House debating bill to reduce doctor payments
By - Associated Press - Thursday, March 31, 2011
COLUMBIA, S.C. (AP) — The South Carolina House is debating a bill allowing the state’s Medicaid agency to reduce
payments to doctors, dentists and other medical providers who treat the state’s poor and disabled.19

20 21

18 http://www.amcno.org/index.php?id=724, as accessed by the Trademark Examining
Attorney on February 5, 2014.
19 http://www.washingtontimes.com/news/2011/mar/31/sc-house-debating-bill-reduce-doctor-
payments/, as accessed by the Trademark Examining Attorney on April 10, 2014.
20 http://www.marketwatch.com/story/tenet-healthcare-gets-more-subpoenas-in-billing-probe,
“Tenet gets 2 more subpoenas,” November 24, 2003, as accessed by the Trademark
Examining Attorney on February 5, 2014.
Serial No. 86044889
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22

Jun 1, 2010, 12:23pm CDT
Medtronic starts disclosing
doctor payments
Chris Newmarker, Staff Writer
Medtronic Inc. said Tuesday it has started posting annual physician
payments exceeding $5,000 on its company website.

New Website to Post Payments to Doctors From Health Industry
Medicare Doctor Pay: Why Is It So Hard To Fix? 23

Apr 10, 2014
The Eye Doctors of Medicare’s Million Dollar
Payout Club Defend Their Massive Payments
ARIT JOHN

ASSOCIATED PRESS
Ophthalmologists, the greatest beneficiaries of Medicare payments,
would like to explain why they were reimbursed millions of dollars.
Wednesday's historic data release of doctor payments showed that
17,000 eye doctors received 7 percent – or $ 5.6 billion – of all
Medicare payments in 2012, including one doctor who received
$ 20 million. But in interviews with The New York Times, those doctors
explained that expensive drugs and a high percentage of older patients
are the main reasons their billings are so high.
One reason eye doctors dominate the highest paid Medicare doctors
(half of the 100 highest paid physicians were ophthalmologists) is their
patients tend to be older. “You would expect ophthalmology to be
heavily represented in a payment system that is for age 65 and up,” Dr.
Michael X. Repka, medical director for governmental affairs at the
American Academy of Ophthalmology, told The Times.
But it's really the medications and injections that drive their rates up. Doctors perform thousands of injections a year, and one major
contributor to eye doctor payments is Lucentis, a $ 2,000-per-dose shot used to treat macular degeneration (which, untreated, can lead to
blindness). … 24

21 http://www.apsworkflow.com/solution/, as accessed by the Trademark Examining Attorney
on April 9, 2014. According to this source, Brokerage General Agents are independent
contractors working for an insurance company, who in turn sell insurance products to
insurance brokers. In this case, APS Workflow’s advanced payment systems are directed to
brokers involved in health care delivery and insurance.
22 http://accountablecareanswers.com/category/media-coverage, as accessed by the
Trademark Examining Attorney on April 10, 2014.
23 http://blog.aarp.org/tag/doctor-payments/, as accessed by the Trademark Examining
Attorney on April 10, 2014.
24 http://www.thewire.com/politics/2014/04/the-eye-doctors-of-medicares-million-dollar-
payout-club-defend-their-massive-payments/360459/, an article published on April 10, 2014,
and accessed by the Trademark Examining Attorney that same day.
Serial No. 86044889
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25

• Biller Direct (Customers Can Send
Payments Through Your Web Site)
• What is ACH?
• Where is ACH used?
ACH direct money transfer[s] are most
commonly used for direct deposit of paychecks.
But there is an entire universe of business
applications where using ACH makes terrific
sense. It really is only limited by your imagination,
but here is a starter list of uses:
The challenge is to find a way to make ACH
work in your business. The rewards are better
customer loyalty, better audit trail of all payments
made, greatly reduced costs for all transactions in
and out, better cash flow, and more/better use of
your website investment. 26

25 http://www.hfxcard.com/gold-membership.html, as accessed by the Trademark Examining
Attorney on February 5, 2014.
26 http://www.totalepay.com/account-to-account.jsp, as accessed by the Trademark Examining
Attorney on April 10, 2014.
Serial No. 86044889
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Decision
Marks “capable of distinguishing the applicant’s goods or services” are eligible for
registration on the Supplemental Register. 15 U.S.C. § 1091(c). By contrast,
“[g]eneric terms are common names that the relevant purchasing public understands
primarily as describing the genus of goods or services being sold. They are by
definition incapable of indicating a particular source of the goods or services.” In re
Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir.
2011) (citations omitted). The ultimate test for determining whether a term is generic
is the primary significance of the term to the relevant public. See Section 14(3) of the
Act. See also In re American Fertility Society, 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). The Trademark Examining Attorney bears the burden of making a “strong”
showing, with “clear evidence,” that the applicant’s proposed mark is generic. In re
Merrill Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed.
Cir. 1987). See also In re K-T Zoe Furniture, Inc., 16 F.3d 390, 29 USPQ2d 1787, 1788
(Fed. Cir. 1994). “[D]oubt on the issue of genericness is resolved in favor of the
applicant.” In re DNI Holdings Ltd., 77 USPQ2d 1435, 1437 (TTAB 2005).
Registration is properly refused if the proposed mark is generic for any of the services
identified in a particular class. In re Analog Devices Inc., 6 USPQ2d 1801, 1810
(TTAB 1988), aff’d, 10 USPQ2d 1879 (Fed. Cir. 1989).
We must make a two-step inquiry to determine whether DOCTORPAYMENTS
is generic: First, what is the genus (category or class) of goods or services at issue?
Second, is the term sought to be registered understood by the relevant public
Serial No. 86044889
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primarily to refer to that genus of goods or services? H. Marvin Ginn Corp. v.
International Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir.
1986).
Although Applicant claims that the Trademark Examining Attorney got the first
step wrong, it appears from the briefs that Applicant and the Trademark Examining
Attorney agree that the genus or category of services is drawn directly from
Applicant’s recitation of services, i.e., an online bill payment service for making
payments to doctors. Applicant’s Appeal Brief at 10; Trademark Examining
Attorney’s Appeal Brief at unnumbered 7 of 17; see also Magic Wand Inc., 19
USPQ2d at 1551 (“a proper genericness inquiry focuses on the description of services
set forth in the certificate of registration,” or, in this case, the involved application).
Applicant’s own specimen of record
(shown at right)27 provides context and
further clarification as to the genus of
services. In re Reed Elsevier Props. Inc.,
482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007); In re DNI Holdings, 77
USPQ2d at 1438. Applicant claims to “provide a secure and convenient way to resolve
your [the patient’s] physician bills.”
As to the second step of our inquiry, it also seems clear that the “relevant public”
consists of ordinary customers of the nation’s health-care delivery system, specifically
patients who have utilized doctor’s services and have been billed for any remaining

27 Submitted with original application on August 22, 2013, taken from Applicant’s website at
https://www.doctorpayments.com/.
Serial No. 86044889
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balance. Evidence of this relevant public’s understanding of the term at issue may be
obtained from any competent source, including testimony, surveys, dictionaries,
trade journals, newspapers, and other publications. In re Northland Aluminum
Products, Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985). The evidence of
record confirms that in the United States – absent a single-payer health care delivery
system – even after monies are collected from third-party insurers or various
government programs (which transfers are also nominated as “doctor payments”
throughout the record), the doctor often still bills the patient for the remaining
balance, resulting in a need for further “payments” from the patient to the doctor, or
“doctor payments.”
The question before us, then, is whether the combined term “Doctor Payments”
would be understood by customers of doctor’s services to refer to an online bill
payment service for making payments to those doctors.
“Doctor,” the first term in Applicant’s “Doctor Payments,” clearly identifies the
category of bill payment services at issue. Within this combined form, the word
“Doctor” retains its dictionary meaning, namely a physician trained in the healing
arts and licensed to practice medicine.
The term “Payments” is the given name for the recited services, namely
permitting a patient to “make payments to payees” – in this case, doctors.
The evidence of record shows that each of these constituent words is generic. Then
when the terms “Doctor” and “Payments” are joined, they have a meaning identical to
the meaning common usage would ascribe to those words as a compound. See In re
Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1110 (Fed. Cir. 1987). That is,
Serial No. 86044889
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this compound term retains the exact meaning of its constituent words. In re
American Fertility Society, 51 USPQ2d at 1836. The evidentiary record establishes
that the compound is a readily understood term of art. In many different contexts,
the two-word term “doctor payments” has a fairly consistent meaning – a sum of
money paid to a physician. Contrary to Applicant’s contention, it is not necessary
that the evidence drawn from these publications be in the voice of individual
patients.28 In fact, Applicant concedes that “the words ‘doctor payments’ are often
used to refer to the concept of making payments to doctors.”29 However, Applicant
makes a distinction between this understood and shared “concept” associated with
the term and Applicant’s actual “website services” by which the payments are made
to doctors.30 We find this a linguistic distinction without any legal difference.
The prototypical U.S. patient as payer increasingly chooses to use an online bill
payment service. Some still depend upon the postal services, other delivery services,
or even hand-delivering payments to a receptionist in a brick-and-mortar office. The
record shows the category of “doctor payments” includes monies remitted from a
third-party payer (e.g., private insurers or public entities). Nonetheless, in all of
these cases, consumers understand that “doctor payments” involve a sum of money
paid to a physician. That Applicant permits consumers to remit sums of money to
physicians through the Internet does not obviate the generic nature of the term.

28 In its brief, Applicant argues: “None of these examples of use [provided by the Trademark
Examining Attorney] is from a member of the relevant purchasing public (i.e., people who
make web-based payments).” Applicant’s brief at 7.
29 Id. at 9.
30 Id. at 9-10.
Serial No. 86044889
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In an earlier case involving a “Payment-formative” term, the Board found that
PERSON2PERSON PAYMENT was generic for direct electronic funds transfers
including electronic payment services between individuals. See In re ING Direct
Bancorp, 100 USPQ2d 1681, 1690 (TTAB 2011). Not unlike the evidence in this
record, the evidence in ING Direct indicated that “person to person payments” was a
commonly used term of art in the financial-payments industry to mean payments
made from one person to another – even if technically the services necessarily
involved financial institutions as intermediaries. Similarly, in the instant case, the
Trademark Examining Attorney has made a strong showing providing clear evidence
that “doctor payments” has a readily-understood significance identical to the usage
that Applicant employs in the context of its online payment services.
As to Applicant’s argument that third-party registrations show that “the PTO has
long allowed the registration of PAYMENT-formative trademarks combined with
other descriptive terms for payment-related services,” we are not persuaded. Clearly,
most of these third-party modifiers are highly suggestive or even descriptive terms.
When combined with the word “Payment[s],” the resulting meanings are themselves
quite laudatory and appear to be fairly weak, non-specific source identifiers. None
appears to be a term of art naming a clearly identifiable category of services, as is
true with “doctor payments.”
Finally, Applicant’s choice of telescoping the words “Doctor” and “Payments” into
a single word (without spatial separation) is immaterial to the issue before us. In re
Greenliant Systems Ltd., 97 USPQ2d 1078, 1084 (TTAB 2010) (NANDrive is generic
for electronic integrated circuits); In re 3Com Corp., 56 USPQ2d 1060, 1062 (TTAB
Serial No. 86044889
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2000) (ATMLINK is generic for computer hardware components used for enabling
connection of asynchronous communication networks); Micro Motion Inc. v. Danfoss
A/S, 49 USPQ2d 1628, 1631 (TTAB 1998) (Massflo is generic for flowmeters for
measuring flow of mass of fluid).
In conclusion, we agree with the Trademark Examining Attorney that members of
the relevant purchasing public – including persons making payments to doctors,
viewing their account balances, their transaction histories, their insurance
information, and documents regarding their accounts, all to assist them in making
such payments – understand DOCTORPAYMENTS as referring to the category of
payment services provided by Applicant. Accordingly, the proposed mark is generic
for the identified services.
Decision: The refusal to register Applicant’s mark DOCTORPAYMENTS as
generic for the recited services under Section 23(c) of the Lanham Act is hereby
affirmed.