Patient Comfort, Inc.

Trademark Trial and Appeal Board

Dec 18, 1998

No. 75055648 (T.T.A.B. Dec. 18, 1998)

Paper No. 9
DEB
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB DEC 18, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Patient Comfort, Inc.
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Serial No. 75/055,648
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Bernhard Kreten for Patient Comfort, Inc.
Fred Mandir, Trademark Examining Attorney, Law Office 105
(Thomas G. Howell, Managing Attorney).
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Before Cissel, Hanak and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Applicant, Patient Comfort, Inc., has filed an
application for registration of the mark "FACE" for its
"anesthesia monitoring apparatus."1
The Trademark Examining Attorney issued a final
refusal to register based upon Section 2(e)(1) of the
Ser No. 75/055,648
2
Trademark Act, 15 U.S.C. §1052(e)(1), on the ground that
applicant's mark, "FACE," when used on this anesthesia
monitoring apparatus, is merely descriptive of the goods
because it identifies a characteristic or feature of the
goods.
Applicant has appealed the final refusal to register.
Briefs have been filed, but applicant did not request an
oral hearing. We affirm the refusal to register.
Applicant has adopted and uses the mark, “FACE,” on a
monitor designed to track activity in four facial muscle
groups (frontalis, corrugator, zygomaticus, and orbicularis
oculi) by means of electromyography (EMG). This device is
used on hospital patients requiring general anesthesia, in
operating rooms, recovery wards and intensive care units.
By telling the physician the patient’s depth of anesthesia
(an “anesthetic depth assessment”), this device permits the
precise dosage of anesthetic drug to be determined. Since
it is able to measure microvoltages of facial muscles, this
device detects subtle changes in spontaneous EMG background
activity even when unaccompanied by observable motion or
facial changes. By helping the doctor calibrate the

1 Serial No. 75/055,648, filed February 9, 1996, alleging
dates of use as early as June 1993.
Ser No. 75/055,648
3
correct dosage of anesthetic, this machine maximizes
patient comfort and thereby minimizes patient recovery
times.
This device displays and records EMG activity from the
four facial muscle groups, as well as a derived variable,
the "awareness index," which is an algebraic function of
EMG activity across the four muscle groups in the face.
Historically, some electroencephalographic (EEG)
monitors have included frontalis sensors to identify the
EMG artifact (which sometimes obscures the lower level EEG
signals), and as a warning of impending emergence from
anesthesia. However, applicant claims that recording EMG
from multiple facial muscle sources is superior to using a
single EMG site, such as the frontalis muscles.
The Trademark Examining Attorney contends that
inasmuch as the four sets of sensors must be attached to
the patient’s face in order for the monitoring device to
function, “face” is a key characteristic of the goods.
Indeed, the abstract of the patent made part of the record
supports this conclusion. Furthermore, the word “face”
itself occurs twenty-five (25) times in the text of the
Ser No. 75/055,648
4
patent, while the word “facial” can be found one-hundred
eleven (111) times within this single patent document.
A mark does not have to describe every quality,
feature,2 purpose, function, etc., of the goods or services
in order to be found merely descriptive; it is sufficient
for §2(e)(1) purposes that the mark describes a single
significant quality, feature, function, etc. See In re
Venture Lending Associates, 226 USPQ 285 (TTAB 1985). The
question of whether a mark is merely descriptive is not
determined in the abstract –- i.e., the Trademark Examining
Attorney does not need to be able to guess, based solely
upon the mark itself, what the goods might be. Rather, we
ask in relation to specific goods for which registration is
sought whether the mark immediately conveys information
about the nature of the goods. See In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978) ["GASBADGE"
is merely descriptive of device to determine and monitor
personal exposure to gaseous pollutants]; In re Eden Foods
Inc., 24 USPQ2d 1757 (TTAB 1992) ["DOUBLE CERTIFIED
ORGANIC," for pasta, is merely descriptive]; and In re
American Screen Process Equipment Co., 175 USPQ 561 (TTAB

2 For example, in the instant case, the fact that a sensor is
also mounted on the patient’s hand to detect and remove artifact
readings does not detract from the outcome herein.
Ser No. 75/055,648
5
1972) ["CAM-LOK" is merely descriptive as applied to screen
printing frames].
In the present case, the Board agrees with the
Trademark Examining Attorney that the word “face”
immediately conveys information concerning a significant
feature or critical characteristic of a device used for
facial electromyography.
Physicians and engineers within the field of
biomedical engineering will continue to invent around
applicant’s anesthetic depth assessment device. In the
search for innovative monitoring modalities for determining
with greater accuracy the depth of anesthesia, EMG sensors
on the face should continue to be key methods of monitoring
the patient. Competitors need to be able freely to use the
word “face” as a significant feature of such goods. Even
at present, an anesthesiologist might well refer to such a
device as simply a “face monitor” when trying to
distinguish this type of monitor from various other
anesthesia monitoring devices (e.g., like a “heart
monitor,” a device for measuring electric activity of the
brain, etc.).

Ser No. 75/055,648
6
Decision: We affirm the refusal of the Trademark
Examining Attorney to register this matter.
R. F. Cissel
E. W. Hanak
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial and
Appeal Board