Naturopathic National Council, Inc.

Trademark Trial and Appeal Board

Feb 27, 2008

No. 76642489 (T.T.A.B. Feb. 27, 2008)

Mailed: February 27, 2008
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Naturopathic National Council, Inc.
________

Serial No. 76642489
_______

Howard M. Cohn, Esq. for Naturopathic National Council,
Inc.

Carrie Genovese, Trademark Examining Attorney, Law Office
115 (Tomas V. Vlcek, Managing Attorney).
_______

Before Hairston, Holtzman and Zervas, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Naturopathic National Council, Inc. seeks to register
on the Supplemental Register the certification mark DOCTOR
OF NATUROPATHY, N.D. (standard character form, DOCTOR
disclaimed) for services ultimately identified as “medical
services featuring organic medicine, functional medicine
and natural healing.”1

1 Serial No. 76642489, filed on July 8, 2005, which alleges dates
of first use of April 15, 2005. The application was originally
filed seeking registration on the Principal Register. The
examining attorney refused registration under Section 2(e)(1) of
the Trademark Act, and applicant amended to seek registration on
the Supplemental Register.
THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
Ser No. 76642489
2
The application includes the following statement:
The certification mark, as used by persons
authorized by the certifier, certifies that [the]
services are provided by individuals who have
successfully completed their undergraduate
education and post-graduate education in the field
of naturopathy from an accredited school, the
individual’s degree is legitimate, the individual
has proven to be highly knowledgeable in the field
of traditional naturopathy by successfully
completing the board certification exam, the
individual has successfully completed an internship
of supervised practical training to further ensure
public safety, the individual has successfully
completed a jurisprudence exam to ensure compliance
of [sic] the law as it relates to the field of
traditional naturopathy, the individual is of legal
immigration status, the individual has malpractice
insurance, maintain[s] a standard of excellence
through continuing education and that the
individual maintains a good standing in the
community.

The trademark examining attorney has issued a final
refusal to register under Section 23 of the Trademark Act,
on the ground that applicant’s mark is generic for the
identified services.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs.2

2 We note that much of the argument in applicant’s reply brief is
directed to its contention that the applied-for mark is not
generic for “licensing services for traditional naturopaths.”
The Board, however, in an October 23, 2007 order, denied
applicant’s request to remand the application for consideration
of such an amendment to the recitation of services. Thus, we
have given no consideration to applicant’s arguments in this
regard.
Ser No. 76642489
3
A mark is generic if it refers to the class, genus, or
category of goods and/or services on or in connection with
which it is used. In re Dial-A-Mattress Operating Corp.,
240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir. 2001), citing H.
Marvin Ginn Corp. v. Int’l. Ass’n. of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986).
The critical issue in genericness cases is whether
members of the relevant public primarily use or
understand the term sought to be protected to refer
to the genus of goods or services in question.
Determining whether a mark is generic therefore
involves a two-step inquiry: First, what is the
genus of goods or services at issue. Second, is
the term sought to be registered or retained on the
register understood by the relevant public
primarily to refer to that genus of goods or
services? (citations omitted)

H. Marvin Ginn Corp., 228 USPQ at 530.
The examining attorney has the burden of establishing
by clear evidence that a mark is generic and thus
unregistrable. In re Merrill Lynch, Pierce, Fenner and
Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987).
Evidence of the relevant public’s understanding of a term
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 (Fed.
Cir. 1985).

Ser No. 76642489
4
In support of her position that the mark DOCTOR OF
NATUROPATHY, N.D. is generic for the identified services,
the examining attorney submitted the following dictionary
definitions:
doctor: 1. A person, especially a physician,
dentist, or veterinarian, trained in the healing
arts and licensed to practice. 2a. A person who
has earned the highest academic degree awarded by a
college or university in a specified discipline.
b. A person awarded an honorary degree by a college
or university. 3. abbr. Dr. Used as a title and
form of address for a person holding the degree of
doctor. The American Heritage Dictionary of the
English Language (4th ed. 2000)

naturopathy: A system of therapy that relies on
natural remedies, such as sunlight supplemented
with diet and massage, to treat illness. The
American Heritage Dictionary of the English
Language (4th ed. 2000

ND: Doctor of Naturopath. www.mercksource.com
The examining attorney also submitted Nexis articles
and Internet printouts showing what she views as generic
uses of the term “Doctor of Naturopathy, N.D.” and the
individual terms “Doctor of Naturopathy” and “N.D.”3

3 Two of the Nexis articles are from Canadian publications. The
Board has stated that it is reasonable to assume that medical
professionals “are likely to utilize all reasonable resources,
regardless of country of origin or medium,” and that “the
Internet is a resource that is widely available to these same
professionals and to the general public in the United States.”
In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002). In this
case involving medical services, it is reasonable to consider
relevant articles regarding such services from Canadian
publications.
Ser No. 76642489
5
Examples include the following:
Paul Saunders is a doctor of naturopathy, who
teaches at the college. (The Toronto (Canada) Star,
November 12, 1999);

When looking for homeopathic care, it is safest to
choose a licensed doctor or naturopathy (ND), who
has completed the rigorous requirements by the
Canadian Naturopathic Association. (Canadian
Business and Current Affairs, August, 1994);
Doctors of naturopathy (ND) studied homeopathy as
part of their medical school training.
(Contemporary Women’s Issues, March 16, 2006);

Ted Spence, a doctor of naturopathy, certified
herbalist, and certified nutritionist who has been
a family dentist for 25 years on the Eastern Shore
of Virginia. (Mothering Magazine, July 1, 2002);

ANMA has a nondiscriminatory policy, with
membership open to individuals with Doctor of
Naturopathy (N.D.) or Doctor of Naturopathic
Medicine (N.M.D.), as well as other health care
fields.
http://www.anma.com

Dr. Walker is in the process of completing his
Doctor of Naturopathy (N.D.) degree in Natural
Medicine at the Florida College of Integrative
Medicine in Orlando, FL.
http://openinghumanpotential.com

Four schools in the United States offer accredited
programs in naturopathic medicine where you can
earn a Doctor of Naturopathy (N.D.). Most of these
programs take about four to five years of full-time
study after getting your bachelor’s degree.
www.mnvu.org

ND Open House Bastyr University encourages
prospective students interested in earning the
Doctor of Naturopathy degree to tour the campus,
attend panel discussions, and speak with
administrators and faculty about the demands of
Bastyr’s ND program. (Seattle Weekly, January 12,
2005);
Ser No. 76642489
6

In his extensive online profile, he calls himself
“Dr. Birdsall,” but he also explains that he is an
ND, which stands for doctor of naturopathy, not an
MD. (Contra Costa Times – California, February 6,
2000);

A Naturopath has earned a Doctor of Naturopathy
(ND) degree and employs non-medical, non-
diagnostic, natural therapies in practice.
www.naturomac.com/_wsn/page;

Naturopathy – The Doctor of Naturopathy (N.D.), or
naturopath, integrates traditional therapies
including homeopathy, acupuncture, oriental
medicine, herbal remedies, and manipulative
therapies with scientific diagnostics and care.
www.holisticcapecop.com/systems;

FNPA [Florida Naturopathic Physicians Association]
has a nondiscriminatory policy with regular
membership open to licensed Florida naturopathic
physicians with Doctor of Naturopathy (N.D.) or
Doctor or Naturopathic Medicine (N.M.D.) degrees.
www.fnpa.org/index;

Our naturopathic doctor, Alison J. Finger, N.D.,
believes in the healing power of nature.
http://cihh.net;

A licensed naturopathic doctor (N.D.) attends a
five-year graduate-level naturopathic medical
school and is educated in all of the same basic
sciences as an M.D., in addition to studies of the
holistic and non-toxic approaches to therapy with a
strong emphasis on disease prevention and
optimizing wellness.
http://cihh.net; and

NDs are licensed in Alaska, Arizona, California,
Hawaii, Maine… .
http://www.findnd.com

Applicant, in urging reversal of the refusal to
register, presented no evidence to rebut the examining
Ser No. 76642489
7
attorney’s showing. Rather, applicant makes three
arguments. First, applicant asserts that “[t]he arbitrary
decision to deny the registration of the present mark,
Doctor of Naturopathy, N.D., was repercussive of its
counterpart Doctor of Naturopathic Medicine being illegally
withdrawn and cancelled after it had been approved for
registration.” (Brief at unnumbered 4). Applicant
maintains that the examining attorney assigned to its
companion application Serial No. 78851026 approved that
application for issuance of a registration on the
Supplemental Register; that the application was
subsequently withdrawn; that the examining attorney’s
decision to withdraw that application was improper; and
that the refusal to register herein was prompted by that
decision.
The decision of the examining attorney to withdraw
applicant’s companion application, after it was approved
for registration, is not appropriate subject matter for
consideration by the Board in this appeal. Rather, this is
a procedural matter reviewable only by petition to the
Director in connection with that application. Even if
applicant filed such a petition and the Director determined
that the examining attorney’s withdrawal of application
Serial No. 78851026 was somehow improper, this would not
Ser No. 76642489
8
impact our decision in this appeal. Rather, our
determination of whether the mark in the present
application is generic for the identified services must be
based on the facts and record before us. We therefore have
given no consideration to applicant’s arguments in this
regard.
Second, applicant argues that it is the only entity
authorized to license medical professionals in the field of
naturopathic medicine, and thus, legally entitled to use
the mark DOCTOR OF NATUROPATHY, N.D.; that third-party uses
of the designation “Doctor of Naturopathy, N.D.” are
illegal; and that such illegal uses cannot serve as the
basis for finding that applicant’s involved mark is
generic. Suffice it to say that applicant has offered no
evidence to support its contention that third-party uses of
this designation are illegal, and we will not disregard the
evidence of such uses in determining whether applicant’s
mark is generic.
Third, applicant argues that the applied-for mark “is
suggestive and it has acquired secondary meaning.” (Brief
at unnumbered page 4). Because applicant amended its
application to seek registration on the Supplemental
Register, without condition, applicant has conceded that
the mark is descriptive and secondary meaning is simply
Ser No. 76642489
9
irrelevant. Thus, applicant cannot be heard to argue at
the briefing stage of the proceeding that its mark is
suggestive and/or has acquired secondary meaning.
We begin our analysis with a determination of the
genus of the services at issue. The services which
applicant certifies are identified as “medical services
featuring organic medicine, functional medicine and natural
healing.” Thus, in this case, the genus or class of
services is essentially naturopathic medical services. See
In re Council on Certification of Nurse Anesthetists, 85
USPQ2d 1403 (TTAB 2007); and In re American Institute of
Certified Public Accountants, 65 USPQ2d 1972 (TTAB 2003)
[Genus of services is that described by applicant’s chosen
identification of services]. Next, the relevant public for
these services consists of persons responsible for hiring
medical professionals with training in the field of
naturopathic medicine, e.g., hospital administrators, and
the general public seeking naturopathic medical services.
This brings us to the question of whether the
relevant public would understand DOCTOR OF NATUROPATHY,
N.D. primarily to refer to naturopathic medical services.
See H. Marvin Ginn, supra. The Nexis and Internet articles
show uses by others of the phrase “Doctor of Naturopathy,
N.D.” and the individual terms “Doctor of Naturopathy” and
Ser No. 76642489
10
“N.D” in a generic manner to refer to a medical
professional and a program of study and/or degree awarded
in the field of naturopathic medicine.
We find that this evidence clearly and convincingly
establishes that the mark DOCTOR OF NATUROPATHY, N.D. names
a specific type of medical professional and that the phrase
is recognized and understood as such. Specifically, it
identifies a medical professional in the field of
naturopathic medicine.
A review of the specimen of record reveals that
applicant’s services consist of an examination and
supervised internship for naturopaths, the successful
completion of which certifies that he or she has achieved a
level of competency in the field of naturopathic medicine.
In our view, the designation is generic for applicant’s
services, which essentially are the providing of a
certification program for naturopaths.
The designation “Doctor of Naturopathy, N.D.” should
not be subject to exclusive appropriation, but rather
should remain free for others in the naturopathy profession
to use in connection with their medical services. In re
Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed.
Cir. 1999).
Decision: The refusal to register is affirmed.