Lynda Guber

Trademark Trial and Appeal Board

Apr 22, 2005

No. 76469243 (T.T.A.B. Apr. 22, 2005)

4/22/05

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Lynda Guber
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Serial No. 76469243
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Anthony M. Keats of Keats McFarland & Wilson for Lynda
Guber.

Lourdes D. Ayala, Examining Attorney, Law Office 106 (Mary
Sparrow, Managing Attorney).
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Before Hanak, Hohein and Rogers, Administrative Trademark
Judges.

Opinion by Hanak, Administrative Trademark Judge:

Lynda Guber (applicant) seeks to register in typed
drawing form CONTACT YOGA for “books and magazines on the
subject of meditation and exercise, manuals on the subject
of instruction, newsletters featuring information about
exercise, educational books and printed instructional,
educational and teaching materials on the subject of
meditation and exercise.” The intent-to-use application
was filed on November 22, 2002. Applicant disclaimed the
THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B.
Ser. No. 76469243
2
exclusive right to use YOGA apart from the mark in its
entirety.
Citing Section 2(e)(1) of the Trademark Act, the
Examining Attorney refused registration on the basis that
applicant’s mark is merely descriptive of applicant’s
goods. When the refusal to register was made final,
applicant appealed to this Board. Applicant and the
Examining Attorney filed briefs. Applicant did not request
an oral hearing.
A mark is merely descriptive pursuant to Section
2(e)(1) of the Trademark Act if it immediately conveys
information about a significant quality or characteristic
of the relevant goods or services. In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Bed & Breakfast
Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir. 1986).
Of course, it need hardly be said that the mere
descriptiveness of a mark is judged not in the abstract,
but rather is judged in relationship to the goods or
services for which the mark is sought to be registered. In
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 216
(CCPA 1978). Finally, a mark need describe only one
significant quality or characteristic of the relevant goods
or services in order to be held merely descriptive. In re
Gyulay, 3 USPQ2d at 1010.
Ser. No. 76469243
3
In support of her refusal, the Examining Attorney has
made of record articles and advertisements taken from the
Internet wherein the term “contact yoga” is used. One
article reads as follows: “Contact yoga brings people
together. If you’ve considered taking up yoga, but crowded
classes and lack of personal attention chase away all
thoughts of melding mind and body into one, you should
check out ‘contact yoga.’ True to its name, this
relatively new practice is yoga done with a partner. The
partner aids and assists the other person in the postures,
helping ensure proper form.” An Internet advertisement for
“contact yoga” was placed by CIRCUS MINIMUS for a workshop
in North Carolina scheduled for May 12, 2003. Another
Internet article speaks of “contact yoga” in the following
terms: “Contact Yoga is an emerging form of partner yoga.
… Contact yoga can be adapted to every level of practice,
so that students who are new to yoga can benefit as much as
experienced yogis.”
Based upon the foregoing Internet articles and
advertisements, it is clear that “contact yoga” is a term
which describes a relatively new form of yoga where one
practices with a partner. Hence, the refusal to register
CONTACT YOGA pursuant to Section 2(e)(1) is affirmed on the
Ser. No. 76469243
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basis that the term “contact yoga” merely describes a
particular type of yoga.
Without providing any evidentiary support whatsoever,
applicant makes essentially two arguments as to why her
purported “mark” CONTACT YOGA is not merely descriptive.
First, applicant argues that she “created the mark CONTACT
YOGA six years ago to suggest the physical and spiritual
connection experienced by individuals practicing meditation
and exercise.” (Applicant’s brief page 9). Second,
applicant contends that she is “preventing others from
using its [sic, her] mark.” (Applicant’s brief page 9).
Even assuming purely for the sake of argument that
applicant did indeed first use the term “contact yoga,”
this does not mean that this term is not merely descriptive
of books, magazines, manuals and other materials on the
subject of meditation and exercise. In re Acuson, 225 USPQ
790 (TTAB 1985) and In re National Shooting Sports
Foundation, Inc., 219 USPQ 1018 (TTAB 1983).
Second, as for applicant’s purported efforts to stop
others from using her “mark,” we have already noted that
applicant has not provided any evidentiary support
whatsoever to demonstrate that she is making such efforts.
In any event, her efforts appear unsuccessful given the
Internet articles and advertisements showing that others
Ser. No. 76469243
5
are using the term “contact yoga” to describe a type of
yoga where one practices with a partner.
Decision: The refusal to register is affirmed.