Ranir, LLC

Trademark Trial and Appeal Board

Feb 6, 2013

No. 85156652 (T.T.A.B. Feb. 6, 2013)

Mailed: 2/6/2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ranir, LLC
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Serial No. 85156652
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H. W. Reick of Price Heneveld for Ranir, LLC.

Doritt Carroll, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
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Before Quinn, Kuhlke and Ritchie,
Administrative Trademark Judges.

Opinion by Quinn, Administrative Trademark Judge:

Ranir, LLC filed, on October 20, 2010, an application to
register the term CLINICAL GRADE (in standard characters) for
“night teeth guards” in International Class 10.
The trademark examining attorney refused registration under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on
the ground that the proposed mark, when applied to applicant’s
goods, is merely descriptive thereof.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
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Applicant argues that its proposed mark is only suggestive.
In arguing against the refusal to register applicant proffered a
detailed critique of the examining attorney’s evidence of third-
party usage of the term “clinical grade.” Applicant essentially
contends that the term is typically used in connection with
relatively expensive and highly sophisticated medical or
electrical instruments used in a clinical setting, as contrasted
with applicant’s goods which are relatively inexpensive and
designed for personal use in a home setting. Applicant also
submitted a copy of its Registration No. 4017356, issued on the
Supplemental Register, of the term CLINICAL GRADE for “dental
instruments, namely scalers, mirrors, and picks; and tongue
cleaners,” and a dictionary excerpt showing the absence of a
listing of “clinical grade.”
The examining attorney maintains that the designation
“clinical grade” describes goods that are of superior or
professional quality, that is, that the product “is of high
enough quality for professional use, even when the product
specifically is intended for use in the home.” (Brief, p. 3).
According to the examining attorney the term “clinical grade” is
commonly applied to products that are not sophisticated or
expensive; and, in this connection, the examining attorney has
relied on various third-party uses of the term for a variety of
goods. In support of the refusal the examining attorney
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introduced dictionary definitions of the words “clinical” and
“grade,” and also asked the Board to take judicial notice of the
meanings of “dental” and “clinic.”1
A mark is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1), if it forthwith
conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the goods
or services. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828 (TTAB 2007); and In re Abcor Development, 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). A mark need not
immediately convey an idea of each and every specific feature of
the applicant’s goods or services in order to be considered
merely descriptive; rather, it is sufficient that the mark
describes one significant attribute, function or property of the
goods or services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB
1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973).
Whether a mark is merely descriptive is determined not in the
abstract, but in relation to the goods or services for which
registration is sought, the context in which it is being used on
or in connection with the goods or services, and the possible
significance that the mark would have to the average purchaser

1 The request in the examining attorney’s brief is granted inasmuch as
the online dictionary also exists in a printed format. In re
Hotels.com, L.P., 87 USPQ2d 1100, 1103 (TTAB 2007), aff’d, 573 F.3d
1300, 91 USPQ2d 1532 (Fed. Cir. 2009); and In re Jonathan Drew, Inc.,
97 USPQ2d 1640, 1642 n.4 (TTAB 2011).
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of the goods or services because of the manner of its use. In
re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is
settled that “[t]he question is not whether someone presented
with only the mark could guess what the goods or services are.
Rather, the question is whether someone who knows what the goods
or services are will understand the mark to convey information
about them.” In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17
(TTAB 2002).
When two or more merely descriptive terms are combined, the
determination of whether the composite mark also has a merely
descriptive significance turns on the question of whether the
combination of terms evokes a new and unique commercial
impression. If each component retains its merely descriptive
significance in relation to the goods or services, the
combination results in a composite that is itself merely
descriptive. See, e.g., In re Petroglyph Games, Inc., 91 USPQ2d
1332 (TTAB 2009) (BATTLECAM is merely descriptive of computer
game software); In re Tower Tech Inc., 64 USPQ2d at 1317
(SMARTTOWER is merely descriptive of commercial and industrial
cooling towers); and In re Sun Microsystems Inc., 59 USPQ2d 1084
(TTAB 2001) (AGENTBEANS is merely descriptive of computer
programs for use in development and deployment of application
programs).
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The examining attorney introduced dictionary definitions of
each term appearing in applicant’s proposed mark. The word
“clinical” means “of, relating to, or conducted in or as if in a
clinic.” The word “grade” is defined as “a class of things in
the same stage or degree.” (www.m-w.com). The same dictionary
defines “dental” as “of or relating to the teeth or dentistry,”
and “clinic” as “a class of medical instruction in which
patients are examined and discussed; a facility (as of a
hospital) for diagnosis and treatment of outpatients.”
The record also includes several third-party uses of the
term “clinical grade” in connection with a variety of products.
Two of the examples show uses in connection with dental
products: “a clinical-grade tooth whitening gel”; and “Oral
Health Products, Inc. produces clinical grade personal oral
hygiene supplies” (specifically dental floss). Other examples
include the following: “Good manufacturing practice and
clinical grade human embryonic stem cell lines”; “clinical-grade
cell purification from thawed cord blood”; “SunTech Medical’s
clinical grade blood pressure technology selected for new
Portable PBS”; “Clinical Grade Treadmill”; “clinical grade
instruments for the measurement...”; “Give your clients and
patients the experience they deserve with clinical grade NuTelsa
Therapy products”; “As a modern chiropractic office, we are
committed to using the highest quality research and clinical
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grade chiropractic instrumentation available...”; “Clinical
Grade Peptides”; “Clinical Grade Optical Cell Sorting”; and
“Clinical-grade viral vector can cure choroideremia.”
Applicant itself uses “Clinical Grade” in two instances as
follows: “Plackers Clinical Grade Tongue Cleaner offers
superior cleaning to remove plaque and bacteria that can cause
bad breath”; and “Plackers Clinical Grade Dental Tools.”
Based on the evidence of record, the term “clinical grade”
is used to tout goods as if they were of high professional or
superior quality. In applicant’s case, the proposed mark
describes night teeth guards that are of such superior quality
that they could be used in a clinic or professional setting,
even when the product is specifically intended for home use
(such as in the above examples related to a tongue cleaner,
teeth whitening gel and dental floss). The words “clinical” and
“grade” are individually descriptive, and the combination of
these merely descriptive terms does not evoke a new and unique
commercial impression. Rather, each component of the composite
mark retains its merely descriptive significance in relation to
applicant’s goods, thus resulting in a composite that is itself
merely descriptive. DuoProSS Meditech Corp. v. Inviro Medical
Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753 (Fed. Cir. 2012)
(SNAP SIMPLY SAFER is merely descriptive for “medical devices,
namely, cannulae; medical, hypodermic, aspiration and injection
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needles; medical, hypodermic, aspiration and injection
syringes”); and In re Oppedahl & Larson LLP, 373 F.3d 1171, 71
USPQ2d 1370 (Fed. Cir. 2004) (PATENTS.COM is merely descriptive
of computer software for managing a database of records that
could include patents for tracking the status of the records by
means of the Internet). No imagination is required by a
prospective purchaser or user to discern that applicant’s night
teeth guards are of such superior quality that they could be
used in a professional setting.
Applicant’s ownership of a Supplemental Register
registration of the same term for dental instruments is of no
help to applicant. By way of this registration applicant
impliedly admits that the term is merely descriptive, at least
with respect to its “dental instruments, namely scalers,
mirrors, and picks; and tongue cleaners.” Quaker State Oil
Refining Corp. v. Quaker Oil Corp., 453 F.2d 1296, 172 USPQ 361
(CCPA 1972) (“We also agree with the observation of the board
that, when appellant sought registration of SUPER BLEND on the
Supplemental Register, it admitted that the term was merely
descriptive of its goods...”); and In re Rosemount Inc., 86
USPQ2d 1436, 1439 (TTAB 2008) (seeking registration on the
Supplemental Register is a concession that the designation is
merely descriptive). See Perma Ceram Enterprises, Inc. v. Preco
Industries, Ltd., 23 USPQ2d 1134, n.11 (TTAB 1992) (the
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amendment to Sec. 27 does not change the rule that the owner of
a Supplemental Registration impliedly admits that the mark was
not inherently distinctive). Given the differences between the
identified “dental instruments” and “night teeth guards,” the
registration is not, however, dispositive of the present appeal.
Nevertheless, there is probative evidence showing that
applicant itself has used “clinical grade” in a descriptive
manner, and that at least two other third parties have used
“clinical grade” in connection with dental floss and teeth
whitening gel. These products are not expensive or
sophisticated, thereby undermining applicant’s contention that
the term is used by others for expensive or sophisticated
instrumentation. We agree with applicant, however, that the
remaining third-party uses are not as probative as the ones in
the dental field; but, it should be noted that several of the
uses are in the broader medical field, indicating that “clinical
grade” indeed has a meaning among medical professionals and
their patients.
Lastly, the fact that “clinical grade” is not found in a
dictionary is not controlling on the question of registrability
in view of the examining attorney’s evidence showing that the
term has an understood and recognized meaning in the
dental/medical field. See In re Orleans Wines, Ltd., 196 USPQ
516 (TTAB 1977) (BREADSPRED held merely descriptive of jellies
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and jams). Indeed, a merely descriptive term is not rendered
less so even if applicant were the first to use the term. See
In re Hunter Fan Co., 78 USPQ2d 1474, 1476 (TTAB 2006) (“a word
need not be in common use in an industry to be descriptive, and
the mere fact that an applicant is the first to use a
descriptive term in connection with its goods, does not imbue
the term with source-identifying significance”).
We conclude that the term CLINICAL GRADE is merely
descriptive of night teeth guards.
Decision: The refusal to register is affirmed.