Survival Swim Dev. Network, Inc.v.J. Barnett Holdings, LLC

Trademark Trial and Appeal Board

Dec 12, 2017

No. 92061915 (T.T.A.B. Dec. 12, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 12, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Survival Swim Dev. Network, Inc.
v.
J. Barnett Holdings, LLC
_____

Cancellation No. 92061915
_____

William D. Meyer, of Hutchinson Black and Cook, LLC,
for Survival Swim Development Network, Inc.

Brock A. Hankins and Ava K. Doppelt, of Allen, Dyer, Doppelt & Gilchrist, P.A.,
for J. Barnett Holdings, LLC.
_____

Before Cataldo, Adlin, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Survival Swim Development Network, Inc. f/k/a Infant Aquatics Network, Inc.
(“Petitioner”)1 has petitioned to cancel Registration No. 4562130 on the Principal
Register for the mark SELF RESCUE in standard characters for “Instructing infants

1 Petitioner’s corporate name was “Infant Aquatics Network, Inc.” when this proceeding was
filed. Petitioner changed its name in June 2016 to “Survival Swim Development Network,
Inc.” 22 TTABVUE 20-23. We exercise our discretion to change the caption of the case to
reflect petitioner’s current name. Trademark Trial and Appeal Board Manual of Procedure
(“TBMP”) Section 512.02 (June 2017).
Cancellation No. 92061915
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and young children in aquatic survival skills; educational services, namely, classes
and seminars in the field of water safety and drowning prevention for infants and
young children,” in International Class 41,2 owned by J. Barnett Holdings, LLC
(“Respondent”). As grounds for cancellation, Petitioner asserts that: (1) the
application that matured into the subject registration was filed by someone other
than the owner of the mark, and was thus void ab initio; (2) SELF RESCUE is the
generic name for the services identified in the registration; and (3) if SELF RESCUE
is not the generic name for those services, it is merely descriptive of them and has
not acquired distinctiveness. 1 TTABVUE 6-10 (Petition to Cancel ¶¶ 11-18; 25-38).3
We grant the Petition for Cancellation on the ground that SELF RESCUE is merely
descriptive of the identified services and has not acquired distinctiveness.
I. The Record4
The record consists of:

2 The subject registration issued on July 8, 2014 under Section 2(f) of the Trademark Act, 15
U.S.C. § 1052(f).
3 Petitioner also pleaded a claim that the registered mark is functional, 1 TTABVUE 7 (Pet.
to Cancel ¶¶ 19-24), but did not pursue that claim in its briefs, and it is deemed waived.
Krause v. Krause Publ’ns Inc., 76 USPQ2d 1904, 1906 (TTAB 2005). Respondent’s Answer
asserted various affirmative defenses, including Petitioner’s lack of standing. 4 TTABVUE 5-
6 (Ans. Aff. Defs. ¶¶ 1-8). Lack of standing is not an affirmative defense because “‘[t]he facts
regarding standing . . . are part of [a plaintiff’s] case and must be affirmatively proved.’”
Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1848
(TTAB 2017) (quoting Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ
185, 189 (CCPA 1982)). Respondent did not address its true affirmative defenses in its brief,
and they are also waived. Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d
1419, 1422-23 n.7 (TTAB 2014).
4 Neither party objected to the admission of any evidence, and any objections have been
waived. See generally TBMP Section 707.04, and cases cited therein. Except as otherwise
indicated below, we have considered all evidence of record for whatever probative value it
may have. See, e.g., Daniel J. Quirk, Inc. v. Vill. Car Co., 120 USPQ2d 1146, 1151 n.27 (TTAB
2016).
Cancellation No. 92061915
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(1) the pleadings;
(2) the file of Respondent’s registration, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1);
(3) Petitioner’s testimony depositions of Beverly Steinfink, Ginny Ferguson, Joy
McGinty, Judy Heumann (with exhibits), Sharon Powers, and Tracey Panzer-
Michelle (with an exhibit), all taken upon written questions (26 TTABVUE);
(4) Respondent’s testimony depositions of Nadya Davis, JoAnn Barnett, Harvey
Barnett, Lisa Beers, Ashleigh Bullivant, Nicole Cahill, Austin Barnett, Kristy
Wexler, and Kathleen Smith, all taken upon written questions (29 TTABVUE);
(5) Petitioner’s January 30, 2017 Notice of Reliance covering 22 exhibits (22
TTABVUE);
(6) Respondent’s April 21, 2017 Notice of Reliance covering 20 exhibits5 (28
TTABVUE); and
(7) Petitioner’s rebuttal Notice of Reliance covering three additional exhibits (36
TTABVUE).
II. Factual Background
Dr. Harvey Barnett, the Barnett Family, and the Barnett Companies
Harvey Barnett, who holds a PhD in psychological foundations and has held
various academic positions at the university level, filed Application Serial No.
85585657, which matured into Respondent’s registration. H. Barnett Tr. 4:15-5:21.

5 Exhibits 6, 8-15, 17-19, and part of Exhibit 20 were designated “Confidential Attorney’s
Eyes Only” under the Standard Protective Order and were filed under seal at 30-32
TTABVUE.
Cancellation No. 92061915
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Dr. Barnett began teaching infants and young children aquatic survival skills in 1966
and continued to do so until his retirement. H. Barnett Tr. 6:2-5. He also conducted
research and developed theories for working with infants and young children in the
water, and prepared curriculum materials and safety protocols for training and
certifying instructors to teach water safety skills. H. Barnett Tr. 6:16-7:4. His
objective was “to teach infants and young children to handle themselves in the water
and to apply my background, my applications, my theories, my scholarship, and my
research into assessing a situation so that a child can be taught a variety of aquatic
skills.” H. Barnett Tr. 6:5-10.
Prior to filing his application in 2012, Dr. Barnett had formed a number of
companies that were called, at various times, Infant Swimming Research, Inc., Infant
Swimming Resource, LLC, Harvey Barnett, Inc., Instructor Development, LLC, and
Respondent Swim-Float-Swim, LLC, which changed its name to J. Barnett Holdings,
LLC (collectively the “Barnett Companies”). H. Barnett Tr. 5:2-21, 25-7:4; 11:10-14,
25-12:4; 14:23-17:8; J. Barnett Tr. 6:8-7:12; 20:19-22:10; 25:18-27:14. Dr. Barnett’s
former wife JoAnn Barnett testified that she has taught water safety to children and
has trained instructors since 1982, when she met Dr. Barnett, working first for Infant
Swimming Research, and then for Infant Swimming Resource after it was formed in
2002. J. Barnett Tr. 4:13-5:12; 5:22-6:13.6 The Barnetts’ son Austin and daughter
Ashleigh Bullivant also work for ISR. Austin oversees ISR’s growth, marketing, and

6 Respondent’s witnesses testified that both Infant Swimming Research, Inc. and Infant
Swimming Resource, LLC have been referred to as “ISR,” but Infant Swimming Research is
now inactive, J. Barnett Tr. 26:8-10, and we will refer to Infant Swimming Resource as “ISR.”
Cancellation No. 92061915
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general operations, while Ashleigh oversees instructor development. A. Barnett Tr.
3:14-4:1; 10:20-11:2; 12:1-4; Bullivant Tr. 4:11-5:5; 18:17-19:1.
Ms. Barnett testified that Respondent was formed in 2002 on the advice of counsel
to hold the intellectual property relating to the Barnett Companies, and that
Respondent allows ISR, under an unwritten license, to use the intellectual property
that ISR licenses to instructors under written licenses. J. Barnett Tr. 6:23-7:12;
22:23-23:8; 27:9-14.
ISR and Its Use of “Self-Rescue” in Instructor Licenses and Materials
ISR currently has 10 employees who support over 500 ISR-trained and certified
independent contractor water safety instructors. J. Barnett Tr. 7:13-25; 8:7-9:6; 10:7-
11:1. Four of ISR’s independent contractor instructors testified at trial. Each
confirmed that she had received training in water safety instruction from ISR, had
been certified (or re-certified) by ISR, had signed a “License and Confidentiality
Agreement” (“LCA”) with ISR, and had been given access to the ISR “Branding Guide”
through a secure website. Davis Tr. 8:11-9:20; Beers Tr. 4:25-5:23; Wexler Tr. 4:15-
21; Ex. 1; 5:14-7:1; Smith Tr. 4:15-6:17; Exs. 1-2; J. Barnett Tr. 10:12-11:1.7

7 Respondent designated the LCAs with instructors Kathleen Smith and Kristy Wexler as
“Confidential Attorney’s Eyes Only,” 33 TTABVUE 2-13, 25-40, but placed a substantively-
identical LCA with former instructor Sharon Powers in the publicly-accessible portion of the
record as Exhibit 5 to Respondent’s Notice of Reliance. 28 TTABVUE 242-254. Respondent’s
filing of this LCA in the public record and its public acknowledgment that Ms. Smith and Ms.
Wexler are licensees waives any claim to confidentiality as to the two other substantively-
identical LCAs filed under seal. Wet Seal Inc. v. FD Mgmt. Inc., 82 USPQ2d 1629, 1633 n.6
(TTAB 2007). The Board may also “treat as not confidential that material which cannot
reasonably be considered confidential, notwithstanding a designation as such by a party.”
Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g). While Respondent designated the Branding
Guide and an “Instructor Website Key Messaging” document, 30 TTABVUE 285-286, as
“Confidential Attorney’s Eyes Only,” and filed them under seal, we will summarize or
paraphrase from those materials to the extent necessary, as we need “to be able to discuss
Cancellation No. 92061915
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The “License” paragraph in the LCAs grants the right to use ISR’s “Intellectual
Property,”8 and the right to “use the name INFANT SWIMMING RESOURCE® and
logo,” but does not mention “Self-Rescue.” 28 TTABVUE 245-246. Ms. Wexler, an ISR
master instructor who trains other instructors, testified that the LCA “gives us
permission to utilize the logo and the name Infant Swimming Resource and talks
about our duties as an instructor.” Wexler Tr. 11:18-12:3.9
The term “Self-Rescue” appears in two places in the LCA. The “Description of
Duties” paragraph provides, among other things, that a licensee “may teach private
‘traditional’, non Self-Rescue™ swimming lessons to children over the age of 48
months.” 28 TTABVUE 247.10 The “Covenant Not to Compete” paragraph includes
time-limited prohibitions on “teaching water survival, self-rescue or related aquatic
skills to infants or young children,” and being employed by, rendering any services
to, or consulting with, any person or entity “if the services to be provided by Licensee

the evidence of record, unless there is an overriding need for confidentiality, so that the
parties and a reviewing court will know the basis of the Board’s decisions.” Noble House
Furnishings, LLC v. Floorco Enters., LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016).
8 “Intellectual Property” is defined as “certain proprietary concepts, confidential business
information and trade secrets relating to specialized methods, procedures and techniques for
teaching specialized water survival, swimming and associated aquatic skills to infants and
young children under the name ‘INFANT SWIMMING RESOURCES®’.” 28 TTABVUE 243.
9 Pages captioned “Professionalism and Branding” were appended to Ms. Wexler’s LCA. 33
TTABVUE 37-40. These pages mention “ISR Self-Rescue™ lessons,” but focus on the
importance of safeguarding “the ISR name” and the “ISR Brand.” They list “Branding Do’s”
and “Branding Don’t’s,” none of which refers to “Self-Rescue.”
10 Ms. Smith’s April 5, 2017 LCA, which is presumably the current version of the document,
contains the words “non ISR Self-Rescue® swimming lessons.” We infer that this portion of
the LCA was revised at some point after Respondent’s registration issued in 2014.
Cancellation No. 92061915
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. . . would involve or relate to in any material way teaching water survival, self-rescue
or related aquatic skills to infants or young children.” 28 TTABVUE 250.
ISR’s Branding Guide uses “Self-Rescue” in two places: in the “ISR Key Words”
list (which also includes words and slogans such as “Survival Swimming Lessons,”
“Water Safety,” “Certified,” “Not One More Child Drowns,” and “Swim-Float-Swim”),
and on the “Messaging” page, which contains the statements that “ISR’s Self-
Rescue™ program was developed by Harvey Barnett, PhD,” that “ISR’s Self-Rescue™
program teaches children six months to six years how to survive if they were to reach
the water alone,” and that there are “[o]ver 800 documented cases of a child using
ISR’s Self-Rescue™ technique to save their [sic] own life.” 30 TTABVUE 258-259. The
words “Self-Rescue” do not appear in the portions of the Branding Guide discussing
the proper use of the ISR logo, name, and brand, 30 TTABVUE 260-263, 266, or the
proper use of program typefaces and colors, 30 TTABVUE 264-265, and no
instructions are given regarding proper use of “self-rescue.”
The Filing and Prosecution of Involved Application Serial No. 85585657
Ms. Barnett testified that she authorized the filing of the application that matured
into Respondent’s registration because “the term self rescue in the general public’s
mind is synonymous with the end result of the ISR program.” J. Barnett Tr. 11:15-
21; 12:1-8. Dr. Barnett filed the application on March 31, 2012 in his own name,
however, testifying that he did so because “I was the author of - - I was the author,”
H. Barnett Tr. 19:5-7, because he was the founder and owner of the Barnett
Companies “and the originator of the self rescue technique,” H. Barnett Tr. 20: 14-18,
Cancellation No. 92061915
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and because a state court in Colorado had ruled in 2011 that he and the Barnett
Companies were essentially one and the same entity. H. Barnett Tr. 20:5-13.11 In the
application, he identified himself as “owner” and stated that he controlled “the use of
the mark by members as follows: all members must have written permission to use
the term SelfRescue prior to their utilizing the term.”
The application was initially refused because SELF RESCUE was merely
descriptive of the identified services.12 Dr. Barnett then assigned the application to
Respondent,13 which then traversed the descriptiveness refusal, amended Dr.
Barnett’s original identification of services to the one in the registration as issued,
and submitted a duplicate application, signed by Ms. Barnett, identifying ISR as the
owner of the mark.14
In a response to a subsequent Office Action, Respondent withdrew the request to
amend the owner of the application and requested that “a claim of acquired
distinctiveness be entered with respect to its mark,”15 based solely on the declaration

11 The lead plaintiff in the referenced suit, entitled Judy Heumann, et al. v. Harvey Barnett
and Infant Swimming Resource, LLC, was a licensee of Harvey Barnett, Inc. between 1984
and 1999, Heumann Tr. 15:20-21, and is one of Petitioner’s founders. Ms. Heumann and her
husband sued to collect a judgment for the attorneys’ fees and costs that they had incurred
in the defense of a separate suit brought against them by Dr. Barnett and Infant Swimming
Research. As the court in the Heumann case explained in its February 14, 2011 Ruling and
Order following trial, made of record by Petitioner, 36 TTABVUE 142-149, the plaintiffs
sought “to pierce the corporate veil and collect the judgment entered against [Infant
Swimming Research] from Harvey Barnett and [ISR].” 36 TTABVUE 143. The plaintiffs’
counsel in that case is Petitioner’s counsel here.
12 July 17, 2012 Office Action at 1.
13 The assignment was recorded in the U. S. Patent and Trademark Office on September 13,
2012 under Reel/Frame 4860/0667.
14 January 17, 2013 Response to Office Action at 1-4.
15 July 19, 2013 Response to Office Action at 1.
Cancellation No. 92061915
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of its counsel, Allison R. Imber, attesting to “substantially exclusive of the mark for
almost five years.”16
The Examining Attorney rejected the Section 2(f) claim because Applicant had not
used the mark for five years.17 Respondent then requested again “that its acquired
distinctiveness claim be entered with respect to its mark” on the basis of Ms. Barnett’s
declaration, as Managing Member of Respondent, attesting to continuous and
substantially exclusive of the SELF RESCUE mark since November 26, 2008.18 The
application was subsequently published for opposition and the involved registration
issued under the provisions of Section 2(f).
Petitioner
Ms. Heumann testified that “the Infant Aquatics Network had been formed in
January 2015 during a meeting of a group of lead [swimming and water safety]
instructors,” and that this group “was registered as a nonprofit corporation in Texas
in July [sic] of 2015” called Infant Aquatics Network, Inc. Heumann Tr. 31:1-4.19
Petitioner’s founders were swimming teachers and other professionals involved in
teaching water safety skills. Heumann Tr. 17:21-18:15; 22 TTABVUE 16-19;
Steinfink Tr. 13:7-10.

16 July 19, 2013 Response to Office Action at 1.
17 August 7, 2013 Office Action at 1.
18 February 7, 2014 Response to Office Action at 1-4.
19 Petitioner was formed as a nonprofit corporation in Texas on June 22, 2015. Heumann Tr.
3-4; 22 TTABVUE 16-19.
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Ms. Heumann owns and operates a separate water safety instruction business
called Infant Aquatics, LLC, Heumann Tr. 3:8-17, but incorporated Petitioner shortly
after she and other water safety instructors received demand letters from ISR
regarding their uses of “self-rescue.” Heumann Tr. 12:17-20 (22 TTABVUE 12-13);
19:11-20:19 (22 TTABVUE 10-11, 14-15). Petitioner commenced this proceeding a
little more than a month after Petitioner’s formation.
Petitioner’s Certificate of Formation states that Petitioner’s purpose is “to
promote an effective teaching method used to equip infants and preschool children
with the necessary aquatic skills to survive in the case of an accidental water
exposure,” 22 TTABVUE 17, but its actual activities are unclear. Ms. Heumann, the
only one of Petitioner’s witnesses who identified herself as a current member of
Petitioner, testified that the “members of Infant Aquatics Network, Inc.” were
“[i]nstructors that were certified in the Infant Aquatics Survival method,” Heumann
Tr. 18:12-15, and who were licensed to use “the Infant Aquatics logo.” Heumann Tr.
31:24-32:2-8. There is no evidence, however, that Petitioner owns the “Infant
Aquatics logo” or any marks pertaining to what Ms. Heumann described as “the
Infant Aquatics Survival method,” and there is no evidence reflecting Petitioner’s
certification or licensing of its members or showing that Petitioner itself provides or
promotes instruction in water safety skills. The only specific activity on the part of
Petitioner that is clear from the record is the prosecution of this proceeding.
III. Standing
A threshold issue in every inter partes case is the plaintiff’s standing to challenge
registration. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
Cancellation No. 92061915
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USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015); John W.
Carson Found. v. Toilets.com Inc., 94 USPQ2d 1942, 1945 (TTAB 2010). Section 14 of
the Trademark Act, 15 U.S.C. § 1064, provides that a “petition to cancel a registration
of a mark . . . may . . . be filed . . . by any person who believes that he is or will be
damaged . . . by the registration of a mark on the principal register . . . .” Petitioner
must plead and prove its standing. Apollo Med. Extrusion, 123 USPQ2d at 1848.
There is “a liberal threshold for determining standing . . . .” Azeka Bldg. Corp. v.
Azeka, 122 USPQ2d 1477, 1479 (TTAB 2017). Petitioner is required to show only that
it possesses a real interest in the proceeding beyond that of a mere intermeddler, and
that it has a reasonable basis for its belief that damage will result from the continued
registration of Respondent’s mark. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d
1023, 1025 (Fed. Cir. 1999). “A ‘real interest’ is a ‘direct and personal stake’ in the
outcome of the proceeding.” Azeka Bldg. Corp., 122 USPQ2d at 1479 (quoting Ritchie,
50 USPQ2d at 1026).
Petitioner argues that it has standing because its members are water safety
instructors, some of whom received demand letters from ISR regarding their use of
“self-rescue.” 37 TTABVUE 14-15. Petitioner argues that it “acts as a ‘trade
association’ for its members, even though it does not use that phrase in its name.” 41
TTABVUE 7.
Respondent counters that Petitioner’s members “operate separate, completely
independent companies” that teach drowning prevention skills, and that Petitioner
“provided no evidence that [Petitioner] itself is engaged in these services, that it must
Cancellation No. 92061915
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use the term ‘self rescue’ to identify its own business, or that it is being harmed by
[Respondent’s] registration.” 38 TTABVUE 10. Respondent acknowledges that “trade
associations have been recognized as having standing to act on behalf of their
members’ interests,” but argues that Petitioner “never claimed to be a trade
association and furnished no evidence to that effect” and that Petitioner “does not
offer any evidence that it received fees or performs an industry regulation, or indeed
any evidence at all to show that an alleged harm to its ‘members’ constitutes a real
interest or damage to” Petitioner itself. 38 TTABVUE 10-11. Respondent’s witness
Austin Barrett went so far as to posit that Ms. Heumann “registered this new entity,
Infant Aquatics Network, for the sole purpose of bringing this challenge of [sic] our
mark.” A. Barnett Tr. 9:4-10.
“‘The purpose in requiring standing is to prevent litigation where there is no real
controversy between the parties, where a . . . petitioner . . . is no more than an
intermeddler.’” Jewelers Vigilance Comm. Inc. v. Ullenberg Corp., 823 F.2d 490, 2
USPQ2d 2021, 2023 (Fed. Cir. 1987) (quoting Lipton Indus., Inc. v. Ralston Purina
Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982)). That purpose is satisfied here.
As noted above, the only activity of Petitioner that is clearly established by the record
is the prosecution of this proceeding, and we could reasonably infer from the timing
and circumstances of Petitioner’s formation that it was incorporated for that purpose,
but its raison d’etre is inconsequential to its standing. Mr. Barnett identified a
number of water safety instructors whom he believed were affiliated with Petitioner,
including Ms. Heumann herself, who had received demand letters from ISR, and he
Cancellation No. 92061915
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agreed that Petitioner was a competitor of ISR. A. Barnett Tr. 5:16-23; 15:1-14; 19:22-
20:3; 21:14-16; 23:23-24:14, 19-21; 25-25:1, 11-13; 26:5-11; 27:13-14, 19-24; 28:23-
29:13, 18-30:14, 17-18; 31:19-20; 32:4-6, 17-22; 33:5-23; 34:3-5, 14-17; 35:3-16.
Therefore, Petitioner is not an intermeddler, but rather has a “direct and personal
stake’ in the outcome of the proceeding,” Azeka Bldg. Corp., 122 USPQ2d at 1479,
sufficient “to assure that concrete adverseness which sharpens the presentation of
issues upon which the [Board] so largely depends for illumination of difficult . . .
questions.’” Jewelers Vigilance, 2 USPQ2d at 2023 (quoting Baker v. Carr, 369 U.S.
186, 204 (1962)); see also Apollo Med. Extrusion, 123 USPQ2d at 1848 (opposer’s
receipt of cease and desist letter from applicant confirmed standing to oppose).
IV. Petitioner’s Non-Ownership Claim
Section 1(a)(1) of the Trademark Act provides that “[t]he owner of a trademark
used in commerce may request registration of its trademark on the principal register
. . . ” 15 U.S.C. § 1051(a)(1). “In a use-based application under Trademark Act Section
1(a), only the owner of the mark may file the application for registration of the mark.
If the entity filing the application is not the owner of the mark as of the filing date,
the application is void ab initio.” Great Seats Ltd. v. Great Seats Inc., 84 USPQ2d
1235, 1239 (TTAB 2007). To prevail on its claim that the involved application was
void ab initio, Petitioner must show, by a preponderance of the evidence, that Dr.
Barnett, the original applicant, was not the owner of the mark when he applied to
register it. Wonderbread 5 v. Gilles, 115 USPQ2d 1296, 1302 (TTAB 2015).
Petitioner argues that “the owner of the mark establishes ownership of a mark by
being the first to use the mark in commerce,” 37 TTABVUE 15, and that Dr. Barnett
Cancellation No. 92061915
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was not the first user of SELF RESCUE in commerce in light of the uses of “self-
rescue” by Petitioner’s instructor witnesses and others, which are discussed below.
Petitioner also points out that when Dr. Barnett filed the application, he did not claim
use of the SELF RESCUE mark himself, but rather alleged that the mark had been
used “by group members” with his permission because he “control[led] the use of the
mark by members as follows: all members must have written permission to use the
term SelfRescue prior to their utilizing the term.” Petitioner contends that there is
no evidence supporting the “group members’” alleged use or their alleged
authorization by Dr. Barnett. Petitioner further argues that Ms. Barnett’s statements
during prosecution, following the application’s assignment to Respondent, belie Dr.
Barnett’s ownership claim, and that the credible evidence indicates that the entity
using the SELF RESCUE mark at the time of filing was neither Dr. Barnett nor
Respondent, but rather ISR. 37 TTABVUE 16-18; 41 TTABVUE 8-12.
Respondent counters that Dr. Barnett created the SELF RESCUE mark prior to
the formation of any of his companies, that he controlled the use of the mark by his
companies until its assignment to Respondent in 2012, and that the court in the
Colorado state court litigation brought by Petitioner’s founder Ms. Heumann had
specifically found, in response to the plaintiffs’ request to pierce the corporate veil of
the Barnett Companies to allow recovery against Dr. Barnett personally, “that ISR is
the ‘alter ego’ of Dr. Barnett,” 38 TTABVUE 8, and that “Dr. Barnett and his
companies were legally one and the same . . . .” 38 TTABVUE 19.
Cancellation No. 92061915
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Petitioner relies upon Estate of Coll-Monge v. Inner Peace Movement, 524 F.3d
1341, 86 USPQ2d 1598 (D.C. Cir. 2008), 37 TTABVUE 15, but that case recognized
that it was not necessary for the mark’s owner to itself use the mark because “the
Lanham Act permits an applicant to establish ownership under the ‘related
companies’ doctrine by showing that it controlled the first user of the mark.” 86
USPQ2d at 1601. “The Lanham Act defines a ‘related company’ as ‘any person whose
use of a mark is controlled by the owner of the mark with respect to the nature and
quality of the goods or services on or in connection with which the mark is used.” Id.
at 1602 (citing 15 U.S.C. § 1055). Here, Respondent claims that Dr. Barnett
“maintained control over the mark until its assignment in 2012” and that “[p]rior to
2012, the use of the mark by ISR was under license from Dr. Barnett and inured to
the benefit of Dr. Barnett.” 38 TTABVUE 18-19.
As noted above, when Dr. Barnett filed the application, he claimed ownership of
the mark by virtue of its use “by members” through “written permission . . . prior to
their utilizing the term,” but he did not have any copies of any such written
permissions and had not provided any to Respondent’s counsel. H. Barnett Tr. 10:18-
11:4. As discussed in detail below, the record reflects the use of “Self-Rescue” on the
ISR website at infantswim.com between 2009 and March 2012, 28 TTABVUE 273,
282, 284-288, 290-292, 294-295, 297, 299-306, 308, 318, 336-337, 340, 343, 348, 350,
but exactly how Dr. Barnett controlled ISR’s use of “Self-Rescue” on the website or
otherwise is not clear. He testified that “[a]ny dissemination of any information in
any format, brochures, pamphlets, any written documentation, websites and so forth
Cancellation No. 92061915
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. . . had to be cleared prior to its use by [ISR] employees or our agents,” H. Barnett
Tr. 19:13-21, but did not explain whether or how he was personally involved in that
process.
Dr. Barnett also testified, however, that he owned the “Self-Rescue” mark and
filed the application in his own name because he considered that he and ISR “were
essentially the same,” based upon the court’s ruling in 2011 in the Heumann
litigation, and that he was the founder and owner of ISR, H. Barnett Tr. 20:5-18,20
and the sole member of ISR. H. Barnett Tr. 16:17-19. Dr. Barnett’s ownership of ISR,
in and of itself, would be an insufficient basis upon which to claim that ISR was a
related company, or that its use of “Self-Rescue” was attributable to him personally.
Great Seats, 84 USPQ2d at 1243 (citing In re Hand, 231 USPQ 487 (TTAB 1986);
Smith v. Coahoma Chem. Co., 264 F.2d 916, 121 USPQ 215 (CCPA 1959)). But as the
Board noted in In re Hand, the CCPA in Smith v. Coahoma Chem. Co. had clearly

20 Petitioner submitted, under its rebuttal notice of reliance, the transcript of Dr. Barnett’s
September 16, 2010 deposition taken during discovery in that case, in which he apparently
testified at length about the Barnett Companies. 36 TTABVUE 5-141. Petitioner claims that
his testimony is relevant to show that Dr. Barnett did not own the mark, and that it is
admissible under notice of reliance “pursuant to TBMP § 704.08 and 37 C.F.R § 2.122(e),” 36
TTABVUE 2, apparently claiming that his deposition is an “official record” within the
meaning of Trademark Rule 2.122(e)(1). Testimony from another proceeding may be
admitted in an inter partes proceeding only pursuant to Trademark Rule 2.122(f), which
provides that “[b]y order of the . . . Board, on motion, testimony taken in . . . a suit or action
in a court, between the same parties or those in privity may be used in a proceeding, so far
as relevant and material . . . . 37 C.F.R. § 2.122(f). The “Board has construed the term
‘testimony,’ as used in Rule 2.122(f) as meaning only trial testimony, or a discovery deposition
which was used, by agreement of the parties, as trial testimony in the other proceeding.”
Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d 1031, 1035 n.8 (TTAB 2010). Dr.
Barnett’s prior deposition meets none of these requirements for admissibility. It was not
offered by motion, the Heumann case did not involve “the same parties” or a party in privity
with Petitioner, and there is no evidence that Dr. Barnett’s deposition “was used, by
agreement of the parties, as trial testimony in the other proceeding.” Id. We have given it no
consideration.
Cancellation No. 92061915
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implied that “if facts were presented to show that an individual[’s] ownership of a
corporation was so complete that the two legal entities ‘equitably constituted a single
entity,’ then sufficient control by the individual with use by the corporation inuring
to the individual’s benefit would be found.” 231 USPQ at 488 (quoting Smith, 121
USPQ at 218).
The court in the Heumann litigation found in 2011, a little more than a year before
Dr. Barnett filed the application, that the Barnetts’ trial testimony about the various
Barnett Companies “showed that the web of corporations that they formed were
meaningless window dressing for what was in fact a kitchen table operation.” 36
TTABVUE 146. The court observed that the Barnetts “often could not keep their own
corporations straight” and that even though ISR had been formed in 2002, there were
no corporate records for ISR as of 2011, “none whatsoever.” 36 TTABVUE 146, 148.
The court also found that an Infant Swimming Research business plan “described the
ISR techniques as the intellectual property of Harvey Barnett, not the property of
any of his corporations.” 36 TTABVUE 147. The court concluded that Infant
Swimming Research and ISR were alter egos and that Infant Swimming Research
was “the alter ego of Dr. Barnett,” and entered judgment against Dr. Barnett and
ISR, enabling the Heumanns to collect the judgment that they had obtained against
Infant Swimming Research against Dr. Barnett and ISR. 36 TTABVUE 149.
The court’s judgment, which was made of record by Petitioner, and obtained by
the prime mover behind Petitioner, who was represented in that case by the same
attorney representing Petitioner in this one, permits us to infer that Dr. Barnett and
Cancellation No. 92061915
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ISR “equitably constituted a single entity,” Smith, 121 USPQ at 218, when the
application was filed in 2012, such that any use of “Self-Rescue” by ISR at that time
inured to Dr. Barnett’s benefit and made him the owner of the mark. We therefore
find that Petitioner failed to prove, by a preponderance of the evidence, that Dr.
Barnett did not own the “Self-Rescue” mark when the application to register it was
filed, and we dismiss Petitioner’s non-ownership claim.
V. Petitioner’s Genericness Claim
“A generic term ‘is the common descriptive name of a class of goods or services.’”
Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
1830 (Fed. Cir. 2015) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)). The test for determining “a mark’s
genericness requires ‘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?’” Id. (quoting Marvin Ginn, 228 USPQ at 530). “It is [P]etitioner’s burden to
establish that [SELF RESCUE] is generic by a preponderance of the evidence.”
Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1761 (TTAB
2013), aff’d mem., 565 F. App’x 900 (Fed. Cir. 2014).
A. The Genus of Services
“Often, the genus is defined by the identified goods or services in the involved
registration . . . .” Alcatraz Media, 107 USPQ2d at 1761. The parties agree,21 and we

21 37 TTABVUE 20; 38 TTABVUE 12.
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find, that the identification of services in the registration adequately defines the
genus of services. We thus turn to the second inquiry under Marvin Ginn, whether
SELF RESCUE is understood by the relevant public primarily to refer to “instructing
infants and young children in aquatic survival skills” or to “classes and seminars in
the field of water safety and drowning prevention for infants and young children.”22
B. The Relevant Purchasing Public’s Understanding of SELF
RESCUE
1. Defining the Relevant Purchasing Public
“[O]ur next task is to define the relevant purchasing public,” Alcatraz Media, 107
USPQ2d at 1761, which “means ‘the relevant public which does or may purchase the
goods or services in the marketplace.’” Id. at 1762 (quoting Magic Wand Inc. v. RDB
Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552-53 (Fed. Cir. 1991)). The parties disagree
on this issue. Petitioner argues that the relevant purchasing public includes parents
and others who purchase the identified services for children, as well as instructors
and other water safety professionals seeking to learn techniques for instructing
children in aquatic survival skills, 37 TTABVUE 20, while Respondent argues that
“the only relevant consumers here are the parents and those purchasing aquatic
survival skills classes and seminars for infants and children.” 38 TTABVUE 12-13.
We agree with Respondent. While water safety instructors may be a competent source
of probative evidence regarding the perception of the term SELF RESCUE by the
relevant purchasing public, they render, rather than consume, the identified services.

22 The entire registration may be cancelled if the mark is found to be the generic name for
either service. In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217,
1219 (Fed. Cir. 2012).
Cancellation No. 92061915
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We find that the relevant purchasing public comprises parents and other persons who
purchase the services of “instructing infants and young children in aquatic survival
skills” or “classes and seminars in the field of water safety and drowning prevention
for infants and young children.”
2. The Significance of the Term SELF RESCUE to the
Relevant Purchasing Public
“Any competent source suffices to show the relevant purchasing public’s
understanding of a contested term, including purchaser testimony, consumer
surveys, dictionary definitions, trade journals, newspapers and other publications.”
In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1801 (Fed.
Cir. 2001). Petitioner relies primarily upon the testimony of water safety instructors;
two American Red Cross manuals; third-party webpages and other materials used by
water safety instructors; pages from the websites at americanwhitewater.org and
southwestpaddler.com pertaining to whitewater canoeing; excerpts from the
December 1988/January 1989 newsletter of the National Association of State Boating
Law Administrators entitled “Small Craft Advisory” and from a document entitled
“Oregon Recreational Boating Accident Statistics–1998;” and three patents regarding
devices and systems that are claimed to enable “self-rescue” by persons separated
from watercraft in open water, incapacitated divers, and kayakers. Petitioner also
points to the ISR website, which Petitioner claims uses “self-rescue” as an adjective
to modify nouns such as “instruction,” “lessons,” and “skills.” 37 TTABVUE 21.23

23 Petitioner and Respondent disagree regarding the nature of Respondent’s use of SELF
RESCUE as an adjective. Petitioner argues that such use makes SELF RESCUE generic, 37
TTABVUE 21, while Respondent argues that such use “identif[ies] its unique techniques with
Cancellation No. 92061915
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Petitioner argues that these materials are “ample evidence that SELF RESCUE has
a history of established use in the genus of water safety, drowning prevention, and
aquatic survival skills.” 37 TTABVUE 22.
Respondent counters that Petitioner “has not offered any evidence that [the
relevant purchasing public] perceives the mark SELF RESCUE to be the common
name for these services,” 38 TTABVUE 13, and specifically that Petitioner “has not
provided any survey evidence showing consumer perception, nor testimony from
parents, nor any documentary evidence showing how the mark is understood.” 38
TTABVUE 13-14.24
Several swimming and water safety instructors testified to their and others’ use
of “self-rescue” in connection with water safety and drowning prevention instruction
and classes for infants and young children. Ms. Heumann, an instructor since about
1972, testified that she was certified by the Red Cross as a water safety instructor at
that time, and heard and saw use of “self-rescue” in her lifesaving courses “to describe
how you could rescue yourself in the event of an accident by taking off your clothes
and making flotation devices out of your jeans, blowing air in them, and being able to

regard to infant swimming and survival instruction.” 38 TTABVUE 13 n.3. It is well-settled
that generic adjectives, like generic nouns, are not protectable as marks. See, e.g., In re
Central Sprinkler Co., 49 USPQ2d 1194, 1199 (TTAB 1998). The question is whether SELF
RESCUE is used generically.
24 We agree with Respondent that some of Petitioner’s evidence is not probative of whether
the relevant purchasing public understands SELF RESCUE to refer primarily to water safety
and drowning prevention instruction and classes for infants and young children. The use of
“self-rescue” to refer to saving oneself from a boating, kayaking, or diving accident, from
drowning in a submerged vehicle, or from drowning after falling through ice into cold water,
22 TTABVUE 55-147, 176-186, 202-212; 36 TTABVUE 150-155, does not necessarily assist
us in determining whether the term primarily refers to the agreed-upon genus of services.
Cancellation No. 92061915
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float and sustain yourself in the water.” Heumann Tr. 3:24-4:9; 4:10-16, 21-24; 7:22-
8:4.25 She testified that she first used the term when she began teaching water safety
in 1980, following the birth of her son, to mean that a baby was able to float on his or
her back. Heumann Tr. 7:1-21.
She testified that she has used the term in conversations with parents and other
instructors that she trained, and in letters to parents,26 in YouTube videos, on
websites, and in social media. Heumann Tr. 8:10-9:5; 10:23-12:16. She testified that
she has produced three videos showing her instructing an infant in which the term
“self-rescue” was used, and that she posted the videos on her YouTube channel, where
she claimed they have been viewed over 300,000 times. Heumann Tr. 10:23-12:16.
She also testified that she was aware of the use of the term “self-rescue” by other
instructors that she trained, as well as by instructors named Rob and Cathy McKay
in Florida, and that the McKays own a website at babyswimming.com on which they
use “self-rescue” to describe water safety skills. Heumann Tr. 13:8-14:14.27

25 A discussion of this means of “self-rescue” is contained in the second of the two American
Red Cross manuals in the record, which is discussed and depicted below.
26 She identified Exhibit 1 to her testimony deposition as her “2000 Information Letter for
prospective parents,” which she created on February 23, 2000 and sent to parents who
contacted her about water safety instruction. Heumann Tr. 9:6-10:3-14. Exhibit 1 was not
attached to Ms. Heumann’s deposition transcript when it was filed, 26 TTABVUE, but the
letter appears as Exhibit 19 to Petitioner’s Notice of Reliance. 22 TTABVUE 194-201. The
letter’s first page states that in her water safety classes, “[i]nfants and children are taught
how to effectively engage the aquatic environment for self-rescue.”
27 Pages from the babyswimming.com website archived on November 27, 1999 by the
Wayback Machine on archive.org are attached as Exhibit 18 to Petitioner’s Notice of Reliance.
22 TTABVUE 189-193. One page states that the “first safety skill teaches a baby to jump in
the water-turn around and swim back to the side,” which “is the most practical method of
self-rescue for infants and toddlers as the majority of accidents occur near the edge of pools
or bodies of water.” 22 TTABVUE 191. There is no evidence in the record regarding the
Cancellation No. 92061915
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Ginny Ferguson, an instructor since 1973, testified that she understood the term
“self-rescue” to mean generally “to get yourself out of trouble without having to put
other people at risk to rescue you,” Ferguson Tr. 4:15-19, and that she first used it
when she became a certified water safety instructor with the Red Cross in 1973, after
her instructor taught her how to teach babies to roll over on their backs and float to
keep their heads out of the water. Ferguson Tr. 6:17-24; 7:4-20. She testified that she
has used the term since she started teaching swimming in connection with teaching
children the tools to self-rescue. Ferguson Tr. 8:13-25; 9:11-14; 24:3-9, 19-25:8. She
was also aware of the use of the term on the McKay website and by other water safety
instructors. Ferguson Tr. 9:15-11:9.
Joy McGinty testified that she began using the term “self-rescue” in water safety
instruction beginning in 1996 because she “realized that that is exactly what I teach
my students,” and that she has continued to use it in talking to parents and describing
her program to clients. McGinty Tr. 5:12-6:2, 18-7:2. She testified that she took Red
Cross training in 2000 in which she was taught self-rescue skills, McGinty Tr. 4:2-4;
6:15-17, and that the term “self-rescue” was referred to in both of her Red Cross
manuals. She also testified that she heard the term used by Mr. McKay and by water
safety instructor Jenny Flahive at conferences of the National Swim School
Association, that she had trained other instructors who have used the term, and that
she was aware of other uses of it on websites and in advertising. McGinty Tr. 6:8-14;

number of visits to this website or the extent of the exposure of the term “self-rescue” to the
relevant purchasing public through the website.
Cancellation No. 92061915
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7:8-8:8; 10:24-11:6. She testified that her clients refer to her program PediaSwim as
“a self rescue program.” McGinty Tr. 10:15-20.
Beverly Steinfink, an instructor since 1986, Steinfink Tr. 3:5-13; 5:15-20, testified
that she heard the term “self-rescue” used in her Red Cross lifeguard training, and
began using the term herself around 2004 after “looking for a better way to describe
what we did.” She testified that she has used it as “a descriptive term for how the
lessons were different from regular swimming lessons taught at the Y or other rec.
centers,” Steinfink Tr. 3:16-4:19; 6:4-24, in her parent manual,28 and in training other
instructors. Steinfink Tr. 7:3-19. She testified that she was aware of the use of “self-
rescue” by Mr. McKay, Ms. Flahive, and at least one instructor that she had trained.
Steinfink Tr. 8:1-9:7. She stopped using “self-rescue” in 2015. Steinfink Tr. 7:8-12.
The only parent to testify at trial, Respondent’s witness Nicole Cahill, the mother
of two sons who went through the ISR program, explained that she chose ISR because
“[t]hey were the only company with a proven method to teach infant children to
SELF-RESCUE.” Cahill Tr. 4:18-21.29 She testified that “self-rescue” refers to the
“method ISR teaches infants and children to surface and float or float and swim if
they are old enough to save themselves from drowning,” which “buys them time so an
adult can interfere or they can SELF-RESCUE by getting to the edge of the water

28 Ms. Steinfink’s parent manual is not in the record.
29 Ms. Cahill and several of Respondent’s other witnesses, whose testimony is discussed below
in connection with whether SELF RESCUE has acquired distinctiveness, used the words “self
rescue” in their testimony depositions in the manner of a reflexive verb, but the court
reporters transcribed the words in capital letters, usually joined by a hyphen, as a trademark
might be depicted. We have considered the manner in which the term “self-rescue” was used
by these witnesses, not the manner of its transcription, in evaluating their testimony.
Cancellation No. 92061915
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and out of the water into safety.” Cahill Tr. 4:22-5:7. She recounted that her own son
had fallen into a hot tub and that she “never would have known he was in there if he
hadn’t been trained to pop up into his float to SELF-RESCUE.” Cahill Tr. 10:2-5. She
testified that her personal “goal is to have every child have the ability to SELF-
RESCUE, and ISR is the only way that that can happen.” Cahill Tr. 10:6-8.30
We reproduce below pertinent pages from the second of the two Red Cross
manuals made of record by Petitioner:

30 Respondent also cites testimony by Ms. Barnett that Respondent claims shows “that
parents and customers recognize that the mark SELF RESCUE refers to the particular
methods and services originating in Dr. Barnett and JBH’s licensee, ISR.” 38 TTABVUE 14.
This testimony consisted of Ms. Barnett’s answer “Yes, I am” to the question “Are you aware
that third parties, particularly parents who are ‘customers’ of your company’s infant
swimming survival services, recognize the term self rescue as referring to a particular
method of your company?,” and her statement that she did not know of the appearance of the
term “self rescue” in any dictionaries. J. Barnett Tr. 13:23-14:7. We give this testimony no
weight on the issue of the relevant purchasing public’s recognition of SELF RESCUE as a
mark. Ms. Barnett’s conclusory three-word answer “Yes, I am” does not qualify as permissible
lay opinion testimony under Rule 701 of the Federal Rules of Evidence.
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Cancellation No. 92061915
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22 TTABVUE 221-224 (all highlighting supplied by Petitioner).
Respondent’s own documentary evidence reveals uses of “self-rescue” to describe
or refer to the ability of an infant or young child to save himself or herself from
drowning in a water emergency. A page from the ISR website reproduced below states
that ISR teaches children “skills to potentially save themselves if they find
themselves in the water alone:”
Cancellation No. 92061915
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28 TTABVUE 67 (January 17, 2013 Response to Office Action at 7).31 Other ISR
webpages in the record display various uses of “Self-Rescue” or “self-rescue” to
describe or refer to water survival skills. An archived ISR webpage reproduced below
states, among other things, that “ISR provides researched instruction techniques and
a drowning prevention strategy for parents to ensure that young children are learning
self rescue skills and the confidence required to safely enjoy the water:”

31 This page and virtually all of the other webpages submitted by Respondent are barely
legible. Filers in Board cases “are responsible for ensuring that all submissions are legible.”
In re Loggerhead Tools, LLC, 119 USPQ2d 1429, 1433 n.5 (TTAB 2016). We “can only review
evidence that is clear so we have considered this evidence to the extent that it is legible and
we are able to read the entire context of the evidence.” Alcatraz Media, 107 USPQ2d at 1758.
Cancellation No. 92061915
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28 TTABVUE 273. Other pages from the ISR website use “self-rescue” in the phrases
“self rescue skills” (28 TTABVUE 273); “the ISR Self-Rescue™ Survival Sequence” or
“Self-Rescue™ sequence” (28 TTABVUE 274, 312);32 “ISR’s Self-Rescue™ program”
(28 TTABVUE 275, 306-307); “ISR Self-Rescue™ survival swimming skills” (28
TTABVUE 276); “ISR Self-Rescue™ survival swimming lessons” (28 TTABVUE 277,
292, 317); “ISR Self-Rescue™ lessons” (28 TTABVUE 279, 313, 319); “ISR Self-

32 The record reflects consistent use of the “™” symbol next to the words “Self-Rescue” on
ISR’s website, and an undated page in the record entitled “Instructor Websites” advises ISR’s
instructors that “[t]he first time Self-Rescue is used on your site it must have the TM symbol:
Self-Rescue(tm).” 32 TTABVUE 48. “The mere ‘[u]se of the letters ‘™’ on a product does not
make unregistrable matter into a trademark.’” In re Empire Tech. Dev. LLC, 123 USPQ2d
1544, 1556 n. 23 (TTAB 2017) (quoting In re Remington Prods. Inc., 3 USPQ2d 1714, 1715
(TTAB 1987)). The use of the symbol “is significant only if it contributed to educating the
public to understand that [‘self-rescue’] is something other than a generic term.” Id.
Cancellation No. 92061915
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Rescue™ skills” (28 TTABVUE 280, 290, 291, 295-296, 319, 337-338, 340-341);33
“ISR’s Self Rescue techniques” (28 TTABVUE 301, 308); “the Self Rescue method used
by ISR today” and the “ISR Self-Rescue™ Method” (28 TTABVUE 304, 339); the “ISR
Self Rescue technique and system” (28 TTABVUE 305); ISR’s “proven Self-Rescue™
survival swimming method” (28 TTABVUE 310); and “ISR’s Self-Rescue™ training”
(28 TTABVUE 315).
Respondent also made of record pages from what appears to be the ISR YouTube
channel that use “Self-Rescue” to describe or refer to water survival skills:

28 TTABVUE 358.

33 Two of these pages are entitled “Cameron had ISR Self-Rescue™ Skills When He Needed
Them Most,” 28 TTABVUE 295, and “ISR Self-Rescue™ Skills Made the Difference.” 28
TTABVUE 296.
Cancellation No. 92061915
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28 TTABVUE 359. In addition, Respondent made of record what appear to be visitor
posts on the ISR Facebook page, which Ms. Bullivant testified has over 60,000
followers. Bullivant Tr. 37:15-17. One post seeks an instructor to teach “the ISR
Infant Self Rescue swim technique,” 28 TTABVUE 324, while the other states that
the ISR “Self-Rescue Survival Swim program saves so many lives.” 28 TTABVUE
325.
Non-ISR website pages and social media pages made of record by Respondent also
use “Self-Rescue” to describe or refer to water survival skills. A page from the website
at click2houston.com is entitled “Infant Self Rescue teaches babies, toddlers, kids
skills to save themselves.” 28 TTABVUE 323. A page from momparadigm.com
captioned “Infant Swimming Self-Rescue” links to a video and states “I’m not sure
why we don’t teach our babies how to self-rescue should they fall in the water.” 28
Cancellation No. 92061915
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TTABVUE 328. A page from reddit.com states that “ISR or Infant Self Rescue is an
aquatic survival technique meant to be an added layer of protection for
babies/toddlers in the event of a water related accident,” which “teaches crawling
babies and toddlers how to handle themselves in the water in the event of a
pool/hottub/bathtub accident.” 28 TTABVUE 329.34 Another page shows pictures
taken while “an infant self-rescue training exercise was in progress.” 28 TTABVUE
330.
A New York Times Magazine article reproduced below discusses Dr. Barnett,
mentions a baby who was “introduced to ‘self-rescue’,” and refers to “[b]abies who
have been taught ‘self-rescue’ technique through Barnett’s infant-swimming
program”:

34 The record reflects a few uses of the acronym “ISR” to refer to “Infant Self Rescue” rather
than “Infant Swimming Research” or “Infant Swimming Resource.”
Cancellation No. 92061915
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28 TTABVUE 331. Another webpage appears to refer to the Times article and states
that the “self-rescue idea is pretty amazing”:

28 TTABVUE 327. A page from vox.com links to a video of “How infant self-rescue
classes work” and states that the poster’s “nephew started infant self-rescue classes
when he was 6 months old” and that “we filmed his progress”:

Cancellation No. 92061915
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28 TTABVUE 332.
“As we have often stated, ‘[g]enericness is a fact-intensive determination and the
Board’s conclusion must be governed by the record which is presented to it.’” Alcatraz
Media, 107 USPQ2d at 1763 (quoting In re Country Music Ass’n Inc., 100 USPQ2d
1824, 1832 (TTAB 2011)). The record reflects both generic and trademark uses of
“self-rescue” for water safety and drowning prevention instruction and classes for
infants and young children.
We credit the testimony of Petitioner’s instructor witnesses that they have used
“self-rescue” to refer to what is taught in their water safety and drowning prevention
classes, and we can infer from their testimony that some members of the relevant
purchasing public have been exposed to such generic uses of “self-rescue” by these
instructors. There are gaps in their testimony, however, regarding the duration,
extent, and manner of their use of the term,35 and a dearth of documentary evidence
of it, and their testimony is thus limited in probative value on the issue of the relevant
purchasing public’s perception of the term “self-rescue.”
A page from the 2009 American Red Cross Swimming and Water Safety manual
reproduced above states that it is “an integral part of a course” in a training program
leading to the issuance of a Red Cross certificate, and the testimony of the instructors
that they used various Red Cross manuals in their own training suggests that the
2009 manual was exposed to instructors who went on to train infants and young

35 The same is true with respect to their testimony regarding the use of “self-rescue” by other
instructors, including on the website at babyswimming.com. This testimony is anecdotal in
nature.
Cancellation No. 92061915
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children in water safety and drowning prevention. The manual refers to situations in
which infants and toddlers “may not correctly remember techniques for self-rescue,”
as well as the need for “[a]nyone who participates in aquatic activities” to learn “basic
skills for self-rescue.” This use of “self-rescue” in lower case letters “is a classic
example of the use of a putative mark as a generic term,” Empire Tech., 123 USPQ2d
at 1556, and suggests to users that “techniques for self-rescue” and “basic skills for
self-rescue” are not taught only by ISR instructors in ISR classes. We can infer from
the testimony of Petitioner’s instructor witnesses who said that they used Red Cross
manuals during their training in water safety that other water safety instructors
have been exposed to the 2009 manual’s generic use of “self-rescue,” but there is no
information in the record regarding the extent of such exposure, or the extent, if any,
to which the manual reached the relevant purchasing public. The 2009 Red Cross
manual thus also has limited probative value in establishing the genericness of “self-
rescue.”
Some of the non-ISR web and social media pages in the record display “self-rescue”
as a generic term, sometimes in lower case letters. Some associate the term with ISR
or Dr. Barnett, 28 TTABVUE 327-329, while others do not. 28 TTABVUE 323, 330,
332. The New York Times Magazine article uses “self-rescue” generically, but
attributes the “technique” to Dr. Barnett.36 Other webpages use “Self-Rescue” with

36 The Times article is the only newspaper or magazine article in the record. The absence of
others undercuts Petitioner’s claim that “self-rescue” is generic. Cf. Empire Tech., 123
USPQ2d at 1560 (citing Plyboo America Inc. v. Smith & Fong Co., 51 USPQ2d 1633, 1640
(TTAB 1999)).
Cancellation No. 92061915
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initial capital letters as an adjective together with a reference to ISR, 28 TTABVUE
320, 324-325,37 or use the hashtag “#SelfRescue” together with references to ISR. 28
TTABVUE 334-335.
As discussed above, the ISR website uses “self-rescue” to describe the goal,
objective, or desired end result of ISR’s services.38 These uses are all directly
associated with ISR, however, and the only parent witness, Ms. Cahill, testified that
“self-rescue” refers to the “method ISR teaches infants and children to surface and
float or float and swim if they are old enough to save themselves from drowning,” and
that her personal “goal is to have every child have the ability to SELF-RESCUE, and
ISR is the only way that that can happen.” Cahill Tr. 4:22-5:4; 10:6-8. An applicant’s
or registrant’s own use of a term in websites, specimens, and other public-facing
materials can be powerful, even dispositive, evidence of the term’s genericness. See
In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (Fed. Cir. 1987)
(applicant’s specimen of use of the mark SCREENWIPE for wipes that clean
computer and television screens stated that its product was “a wipe for screens” and
“provided the most damaging evidence that its alleged mark is generic and would be
perceived by the purchasing public as merely a common name for its goods rather
than a mark identifying the good’s source.”); Empire Tech., 123 USPQ2d at 1556
(applicant’s generic uses of “coffee flour” on its website identified “a product, not a

37 Some are simply too difficult to read to determine the manner of use of “self-rescue.” 28
TTABVUE 321-322, 326.
38 As discussed above, ISR has also used “self-rescue” generically in non-public facing
materials, including in its LCA, which purports to prohibit current or former instructors from
“teaching water survival, self-rescue or related aquatic skills to infants or young children.”
Cancellation No. 92061915
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particular producer of that product . . . .”). ISR’s own materials here, however, are
insufficient to show that the relevant purchasing public understands SELF RESCUE
to refer primarily to Respondent’s services.
All of the various uses of “self-rescue” discussed above result in “a mixed record of
use of the phrase both generically and as part of what appear to be trademarks . . . .”
Alcatraz Media, 107 USPQ2d at 1763; see also In re Merrill Lynch, Pierce, Fenner,
and Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143-44 (Fed. Cir. 1987) (“mixture
of uses” of CASH MANAGEMENT ACCOUNT for various financial services,
including uses associating term with applicant, did “not clearly place appellant’s
mark in the category of a generic or common descriptive term.”); In re Am. Online
Inc., 77 USPQ2d 1618, 1623 (TTAB 2006) (mixed record of generic and trademark
uses of INSTANT MESSENGER for various telecommunications services insufficient
to establish genericness of term). After considering the record as a whole, we conclude
that Petitioner failed to show, by a preponderance of the evidence, that the registered
SELF RESCUE mark is the generic name for Respondent’s services. The genericness
claim is accordingly dismissed.
VI. Petitioner’s Claim That the Registered Mark Has Not Acquired
Distinctiveness
Petitioner’s failure to prove that SELF RESCUE is generic for Respondent’s
services does not preclude it from showing that the mark has not acquired
distinctiveness. Alcatraz Media, 107 USPQ2d at 1761-67 (finding that respondent’s
mark was not generic for respondent’s services, but granting petition for cancellation
Cancellation No. 92061915
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on alternative ground that it had not acquired distinctiveness). We turn now to
Petitioner’s claim that SELF RESCUE has not acquired distinctiveness.
A. Respondent’s Section 2(f) Registration and the Parties’ Respective
Evidentiary Burdens
Respondent’s registration issued under Section 2(f) of the Trademark Act, which
provides that “nothing . . . shall prevent the registration of a mark used by the
applicant that has become distinctive of the applicant’s goods [or services] in
commerce.” 15 U.S.C. § 1052(f). A Section 2(f) registration is presumed to be valid,
Cold War Museum Inc. v. Cold War Air Museum Inc., 586 F.3d 1352, 92 USPQ2d
1626, 1628 (Fed. Cir. 2009), and that presumption “includes a presumption that the
registered mark has acquired distinctiveness.” Id. “To rebut this presumption, a party
seeking to cancel a Section 2(f) registration must produce sufficient evidence for the
Board to conclude, in view of the entire record in the cancellation proceeding, that the
party has rebutted the mark’s presumption of acquired distinctiveness by a
preponderance of the evidence.” Id.39 Petitioner may show either that the mark had
not acquired distinctiveness when the registration issued in 2014, or that it lacked
acquired distinctiveness at the time of trial in 2017. Alcatraz Media, 107 USPQ2d at
1764.

39 Respondent argues that SELF RESCUE is not merely descriptive, 38 TTABVUE 14-15, but
“[w]here an applicant seeks registration on the basis of Section 2(f), the mark’s
descriptiveness is a non-issue; an applicant’s reliance on Section 2(f) during prosecution
presumes that the mark is descriptive.” Cold War Museum, 92 UPSQ2d at 1629 (citing
Yamaha Int’l Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed.
Cir. 1988)). Thus, Respondent’s “contention that its mark is not merely descriptive . . . is
untenable.” Apollo Med. Extrusion, 123 USPQ2d at 1849.
Cancellation No. 92061915
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In Cold War Museum, the Federal Circuit described the respective evidentiary
burdens in a cancellation proceeding involving a Section 2(f) registration as follows:
The party seeking to cancel registration of a mark always
bears the burden of persuasion, that is, the ultimate
burden of proving invalidity of the registration by a
preponderance of the evidence. . . . In a Section 2(f) case,
the party seeking cancellation bears the initial burden to
establish a prima facie case of no acquired distinctiveness.
To satisfy this initial burden, the party seeking
cancellation must present sufficient evidence or argument
on which the board could reasonably conclude that the
party has overcome the record evidence of acquired
distinctiveness—which includes everything submitted by
the applicant during prosecution. The burden of producing
additional evidence or argument in defense of registration
only shifts to the registrant if and when the party seeking
cancellation establishes a prima facie showing of
invalidity. The Board must then decide whether the party
seeking cancellation has satisfied its ultimate burden of
persuasion, based on all the evidence made of record during
prosecution and any additional evidence introduced in the
cancellation proceeding.
92 USPQ2d at 1630 (citations and quotations omitted).
As discussed above, Ms. Barnett’s declaration of five years of substantially
exclusive and continuous use of SELF RESCUE was “everything submitted by the
applicant during prosecution.” Id. “The fact that respondent’s mark was registered
pursuant to Section 2(f) based solely on a declaration of use does not preclude
petitioner from introducing evidence that the mark is so highly descriptive as to
require actual evidence of acquired distinctiveness in order to satisfy its initial
burden of proof.” Alcatraz Media, 107 USPQ2d at 1765. Petitioner may “carry its
burden of showing prima facie invalidity by introducing evidence at trial that the
mark is so highly descriptive that a mere declaration of five years continuous and
Cancellation No. 92061915
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substantially exclusive use is insufficient to establish acquired distinctiveness, so
that actual evidence of acquired distinctiveness in the form of sales and advertising
figures and the like is necessary.” Id.40 See also In re La. Fish Fry Prods., Ltd., 797
F.3d 1332, 116 USPQ2d 1262, 1265 (Fed. Cir. 2015) (the Board has discretion to not
accept a Section 2(f) declaration where a mark is highly descriptive); Apollo Med.
Extrusion, 123 USPQ2d at 1849 (“the higher the degree of descriptiveness of the
designation in question, the higher the burden Applicant faces in proving acquired
distinctiveness.”).
B. The Degree of Descriptiveness of Respondent’s Mark
“The initial question before us in our analysis of whether [SELF RESCUE] has
acquired distinctiveness is the degree of descriptiveness of that phrase as used in
connection with [Respondent’s services].” Id. Petitioner argues that SELF RESCUE
“is so highly descriptive that a mere declaration of five years continuous and
substantially exclusive use is insufficient to establish acquired distinctiveness.” 41
TTABVUE 16. We agree.
“A designation is considered to be merely descriptive under Section 2(e)(1) if it
immediately conveys knowledge of a quality, feature, function, or characteristic of the
goods or services with which it is used.” Id. (citing Chamber of Commerce, 102
USPQ2d at 1219). The word “self” is a pronoun that means, it in combining form,

40 As the Board explained in Alcatraz Media, “‘[h]ighly descriptive terms . . . are less likely to
be perceived as trademarks and more likely to be useful to competing sellers than are less
descriptive terms. More substantial evidence of acquired distinctiveness thus will ordinarily
be required to establish that such terms truly function as source-indicators.’” Id. at 1767
(quoting In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1085 (TTAB 2010)).
Cancellation No. 92061915
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“oneself or itself [e.g.] self-supporting” (Merriam-Webster Dictionary, merriam-
webster.com, accessed on November 30, 2017).41 During prosecution, the Examining
Attorney made of record a dictionary definition of “rescue” as “to bring (someone or
something) out of danger, attack, harm, etc., deliver or save.” July 17, 2012 Office
Action at 2 (Collins Dictionary, collinsdictionary.com). When “rescue” follows “self,”
the resulting combination means to bring oneself out of danger, or to save oneself.
Respondent’s brief itself concedes that “the mark is used to identify what is being
taught, e.g., Self Rescue™ lessons,” 38 TTABVUE 18, and the record shows that
“what is being taught” is the skill of bringing oneself out of danger in the water and
saving oneself from drowning.
When he filed his application, Dr. Barnett described his services as follows:
Self Rescue is a term utilized in the education of the public
concerning a comprehensive drowning prevention strategy
for infants and young children. Self Rescue denotes the
physical skills and the responsibility of the infant or young
child in the water who has escaped supervision and
defeated the gate or pool fence.
JoAnn Barnett testified that “self rescue” “refers to the end result of what the children
learn in the ISR program.” J. Barnett Tr. 11:2-9 (emphasis added). Austin Barnett
testified that ISR’s enforcement efforts were directed at instructors who tried to
mislead parents “to believe that their children are being provided with self-rescue
skills.” A. Barnett Tr. 5:18-23.

41 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 form or regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Cancellation No. 92061915
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Respondent’s instructor witnesses testified similarly about the meaning of “self-
rescue.” Lisa Beers testified that her responsibility was to “teach children to SELF-
RESCUE should they ever reach the water alone,” and that the term “means to teach
an independent survival skill.” Beers Tr. 4:21-23; 6:4-8 (emphasis added). Kristy
Wexler testified that “self rescue” refers to “[t]he child’s ability to learn how to
independently save themselves [sic] if ever in any aquatic emergency.” Wexler Tr. 7:7-
12 (emphasis added). Kathleen Smith testified that “self-rescue” “refers to ISR’s
SELF RESCUE technique where infants and young children learn to save their own
life if they were to reach the water alone.” Smith Tr. 6:23-7:4 (emphasis added). Nadya
Davis testified that the term refers to the “ISR Self-Rescue technique.” Davis Tr. 10:1-
5. Respondent’s parent witness Ms. Cahill testified that “self-rescue” refers to the
“method ISR teaches infants and children to surface and float or float and swim if
they are old enough to save themselves from drowning,” which “buys them time so an
adult can interfere or they can SELF-RESCUE by getting to the edge of the water
and out of the water into safety.” Cahill Tr. 4:22-5:7 (emphasis added).
As discussed and shown above in our analysis of genericness, the record is replete
with uses of “self-rescue” to describe what the ISR website, the 2009 Red Cross
manual, the New York Times Magazine article, and other sources variously call the
“skills,” “methods,” and “techniques” of self-rescue that are taught to infants and
young children by ISR and others.
A mark is merely descriptive when it describes the desired end result or purpose
of services, In re Meridian Rack & Pinion, 114 USPQ2d 1462, 1464 (TTAB 2015); In
Cancellation No. 92061915
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re Capital Formation Counselors, Inc., 219 USPQ 916, 919 (TTAB 1983), and the
evidence discussed above amply demonstrates that SELF RESCUE, while not proved
to be generic, is highly descriptive. See Alcatraz Media, 107 USPQ2d at 1765. We find
that no thought or imagination whatsoever is required to immediately understand
that “self-rescue” describes a desired end result or purpose of, and thus a quality,
feature, function, or characteristic of, the services of “instructing infants and young
children in aquatic survival skills” and providing “classes and seminars in the field
of water safety and drowning prevention for infants and young children,” namely,
that those services teach infants and young children to save themselves from
drowning. See Apollo Med. Extrusion, 123 USPQ2d at 1851. “Accordingly,
[Respondent’s] burden of proving acquired distinctiveness is likewise very high.” Id.
at 1856. See also La. Fish Fry, 116 USPQ2d at 1265; In re Boston Beer Co. L.P., 198
F.3d 1370, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999).
“Given the highly descriptive nature of the mark and the fact that the only
evidence that respondent offered at the time of registration was the five year period
of use we find that petitioner has satisfied its initial burden of making a prima facie
showing of lack of acquired distinctiveness.” Alcatraz Media, 107 USPQ2d at 1765.
“[T]he burden shifts to respondent to now prove acquired distinctiveness based on
any ‘additional evidence or argument’ produced in this cancellation proceeding,
keeping in mind that petitioner bears the ultimate burden of proof by a
preponderance of the evidence.” Id.
Cancellation No. 92061915
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C. Respondent’s Evidence of Acquired Distinctiveness
“‘To show that a mark has acquired distinctiveness, an applicant must
demonstrate that the relevant public understands the primary significance of the
mark as identifying the source of a product or service rather than the product or
service itself.’” Apollo Med. Extrusion, 123 USPQ2d at 1851 (quoting In re
Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005)). We must
“examine the evidence of record, including any evidence of advertising expenditures,
sales success, length and exclusivity of use, unsolicited media coverage, and consumer
studies . . . .” Id.
Respondent argues that it “has presented substantial evidence to show that the
consuming public has come to recognize the mark SELF RESCUE as identifying
[Respondent] (through its licensee ISR) as the company offering the infant and youth
aquatic survival instructions and training.” 38 TTABVUE 17. Respondent relies upon
claimed use of the mark by Dr. Barnett since 1968, claimed use on the ISR website
since 2009, claimed use by instructors, claimed consumer association of the SELF
RESCUE mark with ISR’s services, as reflected in social media pages and in other
materials, 38 TTABVUE 17-18, media coverage, 38 TTABVUE 9, and enforcement of
the registered mark. 38 TTABVUE 16.
1. Length, Exclusivity, and Extent of Use of “Self-Rescue”
When Dr. Barnett filed his application in 2012, he claimed specific dates of first
use of the SELF RESCUE mark “at least as early as March 4, 2008” and first use in
commerce “at least as early as November 26, 2008.” At trial, however, he claimed that
“the term was used actually much earlier than that” and that he could not remember
Cancellation No. 92061915
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why he had used those dates. H. Barnett Tr. 10:5-15. He claimed to have made up the
term “self-rescue” in 1968, and to have used it since the late 1960s. H. Barnett Tr.
8:11-20; 10:15. Three of Petitioner’s witnesses who had a business relationship with
Dr. Barnett in the 1980s and 1990s, or otherwise knew him, testified that they had
never heard him use the term. Steinfink Tr. 10:20-11:10; McGinty Tr. 9:6-11, 17-20;
Heumann Tr. 15:16-21, 16:3-6.
Ms. Barnett stated under oath in her Section 2(f) declaration during prosecution
that “Self-Rescue” had been “used in commerce since at least as early as November
26, 2008.” February 7, 2014 Response to Office Action at 3. She testified at trial that
she met Dr. Barnett in 1982 and has “spent the past 35 years teaching ISR programs
to thousands of children and training instructors,” J. Barnett Tr. 4:25-5:9, but did not
provide any specifics regarding the use of “Self-Rescue” during that period, or the
length of use, vaguely claiming that “Self-Rescue” was used in various materials
“prior to March 2008.” J. Barnett Tr. 18:16-19:12. Ms. Bullivant testified that she was
an ISR instructor between August 2000 and December 2010, when she accepted a
full-time position with ISR, Bullivant Tr. 4:11-20; 11:15-24, but did not testify to any
use of “Self-Rescue” during that 10-year period.
With respect to the existence of documentary evidence establishing the length of
use of “Self-Rescue,” Dr. Barnett testified that the mark had been used “[i]n the
materials that I wrote” and by ISR instructors, H. Barnett Tr. 8:11-9:3; 10:10-17,
while Ms. Barnett testified that prior to 2008, “it was part of ISR literature. It was
part of media coverage on the program. It was part of conversations that Harvey and
Cancellation No. 92061915
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I had. It was on a lot of our collateral as well.” J. Barnett Tr. 18:16-19:1. Respondent’s
instructors each acknowledged that “Self-Rescue” was ISR’s mark, but did not specify
how long they had used it, or the manner in which they had used it beyond use on
their own websites and in emails to their clients, none of which are in the record.
Davis Tr. 10:1-11:6; Beers Tr. 6:4-7:1; Wexler Tr. 7:7-8:17; Smith Tr. 6:23-7:11.42
The only ISR literature or “collateral” in the record is Dr. Barnett’s 2012 specimen
of use, which he described as “the brochure holder for the Self Rescue brochures and
other educational materials available at this place of business.” The other
documentary evidence showing use of “self-rescue” by, or with reference to, Dr.
Barnett or the Barnett Companies, consists of pages from ISR’s website, pages from
other websites, and social media pages made of record by Respondent under notice of
reliance, a number of which are discussed and shown above. These Internet materials
are “probative only for what they show on their face.” Couch/Braunsdorf Affinity,
Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1467 n.30 (TTAB 2014) (citing Safer,
Inc. v. OMS Invs., Inc., 94 USPQ2d 1031, 1040 (TTAB 2010)). Any statements
contained in them regarding the history of the use of “Self-Rescue” are incompetent
to show how long the term has been used by Dr. Barnett or the Barnett Companies.

42 Kathleen Smith was the only ISR instructor whose testimony appeared to touch on the
length of use of “Self-Rescue.” She has been an ISR instructor since about 2010, Smith Tr.
4:18-24, but testified that she “recognized ISR’s SELF RESCUE when I taught water safety
classes from 1998 until 2004” and that “ISR’s SELF RESCUE method is why I switched
training and chose ISR SELF RESCUE method.” Smith Tr. 15:15-18. Given her reference in
this answer to a “method,” not a mark, and her explanation elsewhere in her testimony that
“self-rescue” “refers to ISR’s SELF RESCUE technique where infants and young children
learn to save their own life if they were to reach the water alone,” Smith Tr. 6:23-7:4, we do
not find that her testimony establishes use of “Self-Rescue” as a mark “from 1998 until 2004.”
Cancellation No. 92061915
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Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118 USPQ2d 1392, 1399 n.62 (TTAB 2016)
(statement on third-party website claiming use of subject mark “since 1929” did not
establish such use).
The earliest documents in the record that associate “self-rescue” with Dr. Barnett
or ISR on their faces are pages from the infantswim.com website that were archived
by the “Wayback Machine” of archive.org on April 13, 2009. 28 TTABVUE 273, 301-
302.43 One of them is reproduced below (highlighting of “self” supplied by
Respondent):

43 Trademark Rule 2.122(e), 37 C.F.R. § 2.122(e), provides that “Internet materials may be
admitted into evidence under a notice of reliance . . . so long as the date of the internet
materials were accessed and their source (e.g., URL) are provided.” A number of the pages
submitted by Respondent do not comply with these requirements, but Petitioner did not
object on this ground, and we have considered them for what they show on their faces.
Respondent also did not offer any explanatory testimony or other evidence regarding the
reliability of the “Wayback Machine,” but Petitioner did not object on this ground either, and
we have assumed, for purposes of our analysis in this opinion only, that the “Wayback
Machine” accurately reproduced pages from the ISR website as the site existed on the dates
on which the pages were archived. Cf. Paris Glove of Canada Ltd. v. SBC/Sporto Corp., 84
USPQ2d 1856, 1858-59 (TTAB 2007) (discussing reliability issues regarding archived
webpages).
Cancellation No. 92061915
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These pages appear to reproduce news stories about ISR, including one that bears a
November 2, 2007 date and that discusses “Infant Swimming Resource Self Rescue
lessons.”
Taking into account what is in the record—and what is not—we do not find
credible Respondent’s claim that “Dr. Barnett began using the phrase SELF RESCUE
in 1968,” 38 TTABVUE 17, or Dr. Barnett’s testimony that he used the term “self-
rescue” since 1968 in connection with the services identified in the registration. On
the basis of the record as Respondent made it, we find that there was no use of the
SELF RESCUE mark by Dr. Barnett or the Barnett Companies prior to 2007. Given
the highly descriptive nature of Respondent’s mark, use for 10 years is insufficient,
in and of itself, to establish acquired distinctiveness. Alcatraz Media, 107 USPQ2d at
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1766 (finding that 20 years of use of highly-descriptive mark ANNAPOLIS TOURS
was insufficient to show acquired distinctiveness).44
The record is also extremely thin regarding the extent of use of SELF RESCUE.
Given the claimed use of the mark through licenses to instructors, the instructors’
use, advertising, and promotion of the mark appear to be key means by which it is
exposed to the relevant purchasing public, but there is little or no probative evidence
of those activities. JoAnn Barnett and Austin Barnett testified that ISR reviews
instructor advertising, J. Barnett Tr. 10:7-11:1; A. Barnett Tr. 6:14-18, but no such
advertising is in the record, and none of the Barnett family witnesses testified that
ISR itself does any advertising under the SELF RESCUE mark. None of the ISR
instructor witnesses testified about the extent of their own advertising and promotion
using the SELF RESCUE mark. The record is also devoid of evidence of the amount
of revenue that has been paid to ISR by the alleged licensees of the SELF RESCUE
mark, or even the amount of revenue realized by instructors for giving lessons under
the SELF RESCUE mark. The complete absence of such sales and advertising
evidence puts us “at a disadvantage to accurately gauge the degree of exposure and
the achievement of distinctiveness among the relevant classes of purchasers.” Id.
Respondent argues that ISR instructors have provided over 7 million lessons to
200,000 infants and toddlers, and that there have been nearly 800 “documented cases

44 Given the highly descriptive nature of SELF RESCUE, even if use since the late 1960s had
been proven, “[it] is well settled that an applicant’s use of wording for a long time does not
necessarily establish that the wording has acquired distinctiveness as a mark.” Apollo Med.
Extrusion, 123 USPQ2d at 1855; see also La. Fish Fry, 116 USPQ2d at 1262.
Cancellation No. 92061915
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of children using ISR techniques, including those taught under the mark SELF
RESCUE, to save themselves from drowning,” 38 TTABVUE 17, but the cited
evidence, an archived page from the infantswim.com website, 28 TTABVUE 305, and
the ISR “Instructor Website Key Messaging” page, 30 TTABVUE 285, is “admissible
only to show what has been printed, not the truth of what has been printed.”
Couch/Braunsdorf Affinity, 110 USPQ2d at 1467 n.30. Mr. Barnett testified that
during 2017 ISR would “serve more than 40,000 clients and we still maintain a
waiting list of more than that,” A. Barnett Tr. 36:11-13, while Ms. Bullivant referred
in her testimony to “the hundreds of thousands of children who have learned SELF-
RESCUE since 1966, thanks to ISR” and to “the thousands of people who apply to our
instructor training program every year,” Bullivant Tr. 35:9-12, but we do not find this
testimony sufficient to establish the extent of the exposure of the relevant purchasing
public to the term “self-rescue” as an indicator of source in Respondent.45 The question
is not how many people have been taught, but how many have been exposed to the
term.
There is virtually no evidence regarding how, and to what extent, the SELF
RESCUE mark is actually used by the instructors in rendering Respondent’s services.
As discussed above, neither the 2012 version of ISR’s LCA, nor its 2017 counterpart,

45 Mr. Barnett’s testimony is limited to the current year, and it is not clear that Ms. Bullivant
has the personal knowledge of that matter that is required by Rule 602 of the Federal Rules
of Evidence. She was born in 1979 and has worked full time for ISR only since 2010, with
responsibility for instructor development. Bullivant Tr. 4:14-5:5; 8:13; 11:15-12:14. She did
not testify regarding the source of her knowledge regarding the number of children that have
been trained “since 1966.” Her testimony on this point lacks credibility in any event because
she claimed that instruction in “self-rescue” began two years before her father claims to have
made up the term. H. Barnett Tr. 8:19-20.
Cancellation No. 92061915
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licenses the SELF RESCUE mark to ISR’s instructors, the ISR Branding Guide
provides no guidance regarding its use, and ISR’s instructor witnesses did not provide
documentary evidence reflecting whether or how they use SELF RESCUE in
communications with parents and students. The record simply does not establish how
and how extensively the SELF RESCUE mark is used by instructors.
There is some evidence of regular use of the term “self-rescue” on the ISR website,
as multiple webpages bearing dates from 2009-2013 and containing stories in which
the term appears are in the record. 28 TTABVUE 273-319, 336-357, 360. As discussed
above in connection with our analysis of genericness, the term is frequently used on
these pages to modify terms such as “skills,” “lessons,” and “techniques,” and it is
almost invariably preceded by the “ISR” mark, which is what ISR’s LCA actually
licenses and what ISR’s Branding Guide actually purports to protect. 28 TTABVUE
274-283, 285-303, 305-319, 337-339, 341-357, 360. This evidence is thus of little
probative value in showing that the SELF RESCUE mark per se has acquired
distinctiveness. Alcatraz Media, 107 USPQ2d at 1766; Apollo Med. Extrusion, 123
USPQ2d at 1855 (where applicant’s claimed mark appeared almost without exception
together with prominently displayed acronym MET, Board was “not convinced that
relevant purchasers associate[d] the designation MEDICAL EXTRUSION
TECHNOLOGIES, without the accompanying MET, solely with Applicant.”).
Finally, with respect to exclusivity of use, Dr. Barnett claimed that “self-rescue”
has “only been used by me,” H. Barnett Tr. 8:19-20, and that he was unaware of any
use by anyone else “until the United States Patent and Trademark Office agent
Cancellation No. 92061915
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referenced that it had been used as it relates to kayaking experiences.” H. Barnett
Tr. 8:20-23. Some of Respondent’s other witnesses also testified that they were
unaware of, or did not recall, any third-party uses of “self-rescue” in connection with
water safety instruction, other than uses that were claimed by them to be
infringements of the registered mark. Davis Tr. 11:9-12:7; J. Barnett Tr. 18:16-19:12;
Bullivant Tr. 9:12-10:3; Cahill Tr. 5:12-15, 21-6:11; 7:2-16; Smith Tr. 8:18-9:19. Even
assuming the truth of their claims of ignorance, however, the “fact that [they] never
heard of other uses does not establish that there are none.” Apollo Med. Extrusion,
123 USPQ2d at 1853 n.10.
As discussed above, Petitioner provided credible testimony from several water
safety instructors regarding their use of the term “self-rescue” prior to or during the
period in which Respondent claims substantially exclusive use, and documentary
evidence showing use of the term by the American Red Cross in connection with water
safety instruction around 2009. As discussed immediately below, Austin Barnett and
other witnesses for Respondent identified multiple water safety instructors whom
they claimed improperly used “self-rescue” in connection with water safety
instruction for infants and young children. J. Barnett Tr. 12:16-13:7, 14:16-15:5; A.
Barnett Tr. 4:2-9:3, 10:12-19, 12:18-16:19, 19:21-20:3, 20:24-33:23, 35:3-23, 38:17-
39:5, 42:7-45:15; Bullivant Tr. 5:13-7:6, 14:17-18:5, 20:24-33:5, 39:16-41:5; Beers Tr.
7:2-12, 16:3-23, Wexler Tr. 16:5-11, 18-17:2; 30 TTABVUE 270-283, 287-299. These
third-party non-trademark uses of “self-rescue” in connection with water safety
instruction for infants and young children may be insufficient to establish the
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genericness of SELF RESCUE, but they clearly indicate that use of SELF RESCUE
by Respondent “has not been ‘substantially exclusive’ as is required for a showing of
acquired distinctiveness under Section 2(f).” Apollo Med. Extrusion, 123 USPQ2d at
1853. This “[n]on-exclusive use presents a serious problem for [Respondent] in
obtaining trademark rights in a designation that is not inherently distinctive,
because it interferes with the relevant public’s perception of the designation as an
indicator of a single source.” Id.; see also Levi Strauss & Co. v. Genesco, Inc., 742 F.2d
1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984) (“When the record shows that
purchasers are confronted with more than one (let alone numerous) independent
users of a term or device, an application for registration under Section 2(f) cannot be
successful, for distinctiveness on which purchaser may rely is lacking under such
circumstances.”); Ayoub, 118 USPQ2d at 1404; cf. Racine Indus. Inc. v. Bane-Clene
Corp., 35 USPQ2d 1830, 1840 (TTAB 1994) (where applicant had not challenged
opposer’s use of subject term, applicant’s use “cannot be said to have been
substantially exclusive.”); Nextel Commc’ns Inc. v. Motorola Inc., 91 USPQ2d 1393,
1408 (TTAB 2009) (opposer’s use of claimed mark undercut applicant’s case for
acquired distinctiveness). Given the highly descriptive nature of SELF RESCUE as
applied to Respondent’s services, the third-party uses significantly undercut
Respondent’s claim that SELF RESCUE points uniquely to Respondent in the context
of the relevant services.

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2. Media Coverage and Consumer Recognition of the SELF
RESCUE Mark
Respondent argues that “[o]ver the years, Dr. Barnett’s pioneering infant aquatic
survival techniques have received significant media coverage,” 38 TTABVUE 9, and
a number of Respondent’s witnesses testified on that topic. In response to the
questions “Has ISR and/or its methods and techniques ever received any positive
unsolicited publicity?” and “Can you describe any?,” Ms. Barnett testified that “the
media comes to us,” that in 2013 ISR “had over 385 media pieces including The Today
Show, Good Morning America, CNN,” that ISR had previously been on Dateline and
20/20, and that “yearly hundreds of local media pieces” refer to ISR. J. Barnett Tr.
24:9-17. In response to the questions “Is Infant Swimming Resource recognized as the
leading provider of aquatic survival methods for infants and young children?” and “If
yes, what makes you say that?,” Mr. Barnett gave a lengthy narrative answer in
which he stated, among other things, that “in the last five years we’ve been featured
by nearly every major international news outlet and every major news outlet in the
U.S., like Fox News, CNN, the Today Show, and more,” that “ISR was featured or
participated in over 400 news pieces and our picture are used with permission as a
visual in even unrelated articles about drowning prevention by the likes of Fox News
and others,” that ISR maintains partnerships with doctors and hospitals, including
the American Academy of Pediatrics, which “alluded to what is widely known as ISR’s
most successful viral video,” and that by doing “a simple Google search using any
relevant term for survival swimming lessons” one can see ISR’s prominence over its
competitors. A. Barnett Tr. 35:24-37:6. In response to the same form questions, Ms.
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Bullivant echoed her mother and brother in testifying that “we are routinely
approached by national media outlets like The Today Show, Good Morning America
and Fox & Friends to speak about our program,” that she had twice personally
appeared on Fox & Friends “working live with ISR students . . . demonstrating ISR’s
SELF-RESCUE,” and that these media opportunities “come about as a result of
videos of ISR students demonstrating their skills going viral.” Bullivant Tr. 35:5-20.
The record is devoid of videos or transcripts of the referenced articles, programs,
and reports, the “viral videos” mentioned by several witnesses, the “hundreds of local
media pieces” referred to by Ms. Barnett, and the results of the Google search
hypothesized by Mr. Barnett. We therefore cannot determine from the testimony of
these witnesses, or that of the ISR instructors,46 the extent (if any) to which the
referenced media coverage displayed or discussed the SELF RESCUE mark, or, if it
did, how the mark was displayed or used. The complete absence of any documentary
evidence showing the nature or extent of the use of the SELF RESCUE mark severely
undercuts the unsupported testimony of Respondent’s witnesses on the issue of
whether SELF RESCUE per se has acquired distinctiveness.47

46 The instructors were asked the form questions “Have you seen publicity or news or feature
articles as opposed to paid advertising for [ISR] and/or its methods and techniques including
the SELF-RESCUE methods; if ‘yes,” can you recall what?” They responded with mentions
of various national and local news programs, some of which were unspecified. Beers Tr. 25:1-
9; Wexler Tr. 24:9-17; Smith Tr. 23:13-21; Davis Tr. 25:23-26:6.
47 References to media coverage on the ISR website, such as the ones shown at 28 TTABVUE
301-302, are not evidence of unsolicited media coverage. Alcatraz Media, 107 USPQ2d at
1765-66.
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The cited evidence of consumer recognition of SELF RESCUE as Respondent’s
mark through “numerous Facebook and Instagram posts, news articles, page
comments, and other publications,” 38 TTABVUE 18, consists mostly of the ISR
webpages discussed above. The portion of this evidence that does not comprise ISR
webpages, 28 TTABVUE 320-335, uses “self-rescue” generically or to describe the
desired result of the ISR program, as shown in several examples above.
We find that the claimed media coverage and consumer recognition evidence do
not show that SELF RESCUE has acquired distinctiveness as Respondent’s mark for
“instructing infants and young children in aquatic survival skills; educational
services, namely, classes and seminars in the field of water safety and drowning
prevention for infants and young children.”
3. Enforcement of the SELF RESCUE Mark
Respondent argues that it “has worked diligently to prevent others from misusing
the mark for services that are not Dr. Barnett’s original techniques,” 38 TTABVUE
16, and Respondent’s witnesses testified at length about efforts to enforce the
registered SELF RESCUE mark and the confusion and damage that they claimed
resulted from unauthorized use of the mark. Respondent also made of record several
demand letters sent to instructors, including former ISR-certified instructors, who
were using the term “self-rescue” in their businesses, and some responses to those
letters. J. Barnett Tr. 12:16-13:7, 14:16-15:5; A. Barnett Tr. 4:9-9:3, 10:12-19, 12:18-
16:19, 19:21-20:3, 20:24-33:23, 35:3-23, 38:17-39:5, 42:7-45:15; Bullivant Tr. 5:13-7:6,
14:17-18:5, 20:24-33:5, 39:16-41:5; Beers Tr. 7:2-12, 16:3-23, Wexler Tr. 16:5-11, 18-
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17:2; 30 TTABVUE 270-283, 287-299.48 The demand letters in the record challenged
uses of the term “self-rescue” such as “Teach your baby or toddler how to survive
using our self-rescue techniques” and “What Self-Rescue skills Can Children Learn?,”
30 TTABVUE 276; “What is self rescue/survivial swimming?,” 22 TTABVUE 14; 30
TTABVUE 280; “Infant Aquatics teaches baby self-rescue swimming lessons to
toddlers and children,” 22 TTABVUE 12; and “instructors also provide a strong
transition of the children’s self-rescue skills use [sic] in many different situations.” 22
TTABVUE 14. Tellingly, one letter challenged an instructor’s use of “self-rescue” to
“describe the method that you teach.” 30 TTABVUE 292.
The record establishes that ISR has convinced a number of recipients of its
demand letters, including some of Petitioner’s trial witnesses, to cease their use of
“self-rescue” in their materials and on their websites. 30 TTABVUE 297-299;
Heumann Tr. 20:23-21:3, 27:8-15. Ms. Heumann’s testimony suggests, however, that
she suspended her use of “self-rescue” pending the outcome of this proceeding, and
would resume such use if Petitioner prevails, Heumann Tr. 20:23-22:9, and it is
reasonable to infer from the record as a whole that some of the other recipients of the
demand letters would do so as well, or that they ceased their use of “self-rescue”
simply because they could not afford to defend against the threatened legal action,

48 Respondent designated the demand letters and the responses as “Confidential Attorney’s
Eyes Only.” Petitioner made of record in the public files additional demand letters. 22
TTABVUE 10-15. One of the confidential demand letters primarily alleged a breach of the
“Covenant Not to Compete” provision of the LCA through the teaching of “self-rescue . . .
skills.” 30 TTABVUE 271-274.
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and not because they recognized Respondent’s rights in the term. Steinfink Tr. 13:16-
14:7; 16:24-17:5; 23:17-23; McGinty Tr. 8:2-5.
In any event, “‘[c]opying is only evidence of secondary meaning if the defendant’s
intent in copying is to confuse consumers and pass off his product as the plaintiff’s.’”
Alcatraz Media, 107 USPQ2d at 1766-67 (quoting Stuart Spector Designs Ltd. v.
Fender Musical Instruments Corp., 94 USPQ2d 1549, 1575 (TTAB 2009)). The record
is devoid of evidence of the actual manner of use of “self-rescue” by the recipients of
ISR’s demand letters, but the discussions of the challenged uses contained in the
letters in the record suggest that most recipients used “self-rescue” to merely describe
the water safety and survival skills that they teach to infants and young children.
We cannot find, on the basis of the record as Respondent made it, that the
intention of the recipients of the demand letters was to pass themselves off as ISR
through their use of the term “self-rescue.” In this regard, Respondent’s witnesses
testified that alleged infringers of the SELF RESCUE mark also used ISR videos and
wording taken directly from the ISR website (J. Barnett Tr. 15:1-5; A. Barnett Tr.
5:23-6:1; 15:7-12); posted on the ISR Facebook page (A. Barnett Tr. 19:23; 23:23-24:4;
29:3-10; 31:8-13; 38:17-25; Bullivant Tr. 24:21-25:4; 29:15-18; 31:11-20); verbally held
themselves out as offering ISR lessons or as being ISR instructors (A. Barnett Tr.
22:19-21; 23:11-15; Bullivant Tr. 22:22-23:4; 24:2-6; 30:5-15); used the ISR mark and
logo (A. Barnett Tr. 26:24-27:4; 45:9-15; Bullivant Tr. 28:7-12); or made other efforts
to associate themselves with the ISR brand (A. Barnett Tr. 15:20-24; 31:14-18; 38:17-
25). Because documentary evidence of the challenged activities is not in the record,
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we cannot determine the significance, if any, of these alleged unauthorized uses of
the ISR mark. We do not find the evidence of Respondent’s enforcement efforts to be
probative of the acquired distinctiveness of the SELF RESCUE mark per se.
4. Summary
Respondent’s “evidence of acquired distinctiveness must be weighed against the
highly descriptive nature of the wording comprising” Respondent’s mark. Apollo Med.
Extrusion, 123 UPSQ2d at 1856. Given that SELF RESCUE is highly descriptive of
the services identified in Respondent’s registration, “much more evidence, especially
in the quantity of direct evidence from the relevant purchasing public, than what
[Respondent] submitted would be required to show that” SELF RESCUE has become
distinctive for Respondent’s services. Id. The continued registration of SELF
RESCUE would be inconsistent with the competitive need of water safety and
survival instructors to use the term “self-rescue” to “describe the method that [they]
teach.” 30 TTABVUE 292. See id. at 1855. We find, on the basis of the record as a
whole, that Respondent has failed to rebut Petitioner’s prima facie case and to
establish that SELF RESCUE has acquired distinctiveness for instructing infants
and young children in aquatic survival skills, or providing classes and seminars in
the field of water safety and drowning prevention for infants and young children.
Decision: The Petition for Cancellation is granted on the ground that the SELF
RESCUE mark is merely descriptive of the services identified in Respondent’s
registration, and has not acquired distinctiveness, and Registration No. 4562130 will
be cancelled in due course.