The QLS Program LLC

Trademark Trial and Appeal Board

Sep 30, 2019

87440482 (T.T.A.B. Sep. 30, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: September 30, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re The QLS Program LLC
_____

Serial No. 87440482
_____

Steven E. Klein and Sheila Fox Morrison of Davis Wright Tremaine LLP,
for The QLS Program LLC.
Marlene Bell, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.
_____

Before Zervas, Kuczma and Coggins,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
The QLS Program LLC (“Applicant”) seeks registration on the Principal Register
of the proposed mark QUALIFIED LEVERAGE STRATEGY (in standard characters)
for:
Financial consulting services in the fields of personal
wealth, estate planning, financial planning, financial
valuation, risk management, and asset management;
Financial services, namely, wealth management services;
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financial retirement plan consulting services, in
International Class 36.1
The Trademark Examining Attorney refused registration of Applicant’s proposed
mark under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the
ground that the proposed mark is merely descriptive of Applicant’s services because
it describes a feature of Applicant’s services. After the Examining Attorney made the
refusal final, Applicant requested reconsideration which was denied, and Applicant
filed its Notice of Appeal. Subsequent to Applicant and the Examining Attorney
submitting their appeal briefs, the Board suspended the appeal and the file was
remanded to the Examining Attorney pursuant to Applicant’s remand request.2 See
In re I-Coat Co., LLC, 126 USPQ2d 1730, 1734 n. 15 (TTAB 2018) (the proper
procedure for an applicant to introduce evidence after an appeal is filed is to submit
a written request to the Board to suspend the appeal and remand the application for
further examination). On remand, the Examining Attorney considered the
Declaration of Applicant’s CEO, Phil Spalding, Jr., but maintained the refusal; the
appeal was resumed with Applicant and the Examining Attorney submitting
supplemental briefs. We affirm the refusal to register.

1 Application Serial No. 87440482 filed on May 8, 2017, based upon Applicant’s allegation of
a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b).
2 7 TTABVUE (request); 9 TTABVUE (remand order).
References to the briefs and to the Board’s actions refer to the Board’s downloadable
TTABVUE docket system. Page references herein to the application record refer to the
downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR)
system.
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I. Descriptiveness under Section 2(e)(1)
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of “a mark which, (1) when used on or in connection with the services of the
applicant is merely descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). For a term to be
merely descriptive within the meaning of § 2(e)(1), it is not necessary that the term
describe each feature of the services, only that it “immediately conveys knowledge of
a quality, feature, function, or characteristic of the goods or services with which it is
used.” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217,
1219 (Fed. Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828, 1831 (Fed. Cir. 2007)); see also In re TriVita, Inc., 783 F.3d 872, 114
USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d
1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009, 1009 (Fed. Cir. 1987).
Determining the descriptiveness of a mark under § 2(e)(1) of the Trademark Act
is done in relation to an applicant’s goods or services, the context in which the mark
is being used, and the possible significance the mark would have to the average
purchaser because of the manner of its use or intended use. See In re Chamber of
Commerce, 102 USPQ2d at 1219 (citing In re Bayer, 82 USPQ2d at 1831). In other
words, the question is not whether someone presented only with the mark could guess
the services listed in the identification. Rather, the question is whether someone who
knows what the services are will understand the mark to convey information about
them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103
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USPQ2d 1753, 1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc., 64 USPQ2d
1314, 1316-17 (TTAB 2002)).
When two or more merely descriptive terms are combined, as in Applicant’s
proposed mark, the determination of whether the combined mark also has a merely
descriptive significance turns on whether the combination of terms evokes a non-
descriptive commercial impression. In re Oppedahl & Larson, 71 USPQ2d at 1372
(quoting Estate of P.D. Beckwith, Inc. v. Commr., 252 U.S. 538, 543 (1920)). However,
in considering the mark as a whole, the Board may weigh the individual components
of the mark to determine the overall impression or the descriptiveness of the mark
and its various components. In re Oppedahl & Larson, 71 USPQ2d at 1372 (citing In
re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)). Thus, we
may consider the significance of each element separately in the course of evaluating
the mark as a whole. See DuoProSS v. Inviro, 103 USPQ2d at 1757 (reversing Board’s
denial of cancellation for SNAP! with design for medical syringes as not merely
descriptive when noting that the Board “to be sure, [could] ascertain the meaning and
weight of each of the components that ma[de] up the mark”).
We begin by looking at the definitions of each of the components of Applicant’s
proposed mark QUALIFIED LEVERAGE STRATEGY:
Definition of “qualified”3:
2a: being in compliance or accordance with specific
requirements or conditions // a qualified voter

3 In its Request for Reconsideration after Final Action, Applicant cites to the definitions of
“qualified” listed in THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE: “1.
Having the appropriate qualifications for an office, position, or task.” 8/2/2018 (TSDR 9); and in the MERRIAM-WEBSTER
DICTIONARY: “1a: fitted (as by training or experience) for a given purpose: competent b:
having complied with the specific requirements or precedent conditions (as for an office or
employment): eligible.” MERRIAM-WEBSTER, 8/2/2018 (TSDR 10). The Examining Attorney submitted the following definition:
“Entity that has acquired a recognized certificate, degree, or professional standing and/or has
demonstrated the ability to handle and successfully completes qualifying tasks.” August 12,
2017 Office Action, BUSINESS DICTIONARY, 8/10/2017 (TSDR 5).
Inasmuch as “qualified” has several definitions, we use the definition provided above,
designated at 2a and b, as it more closely addresses the use of “qualified” in connection with
Applicant’s services. MERRIAM-WEBSTER DICTIONARY, Legal Definition of qualified, © 2019
Merriam-Webster, Incorporated .
The Board may take judicial notice of definitions from dictionaries, including online
dictionaries that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4
(TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co.
AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378
(TTAB 2006).
4 Examining Attorney’s Appeal Brief (6 TTABVUE 7).
5 Applicant’s Reply Brief p. 2 (8 TTABVUE 3).
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particularity’ information about financial services to average prospective purchasers
of such services,” concluding that the term is not merely descriptive.6
In support, Applicant argues that the term “qualified” has multiple ordinary
dictionary meanings, which do not convey the qualities of the subject financial,
wealth management and retirement plan services with the immediacy normally
associated with a purely descriptive mark.7 Applicant further asserts that none of the
evidence introduced by the Examining Attorney shows use of the term “qualified”
standing alone; rather the term “qualified” is shown as part of the phrase “qualified
plan” or “qualified retirement plan,” thus there is no evidence that “qualified” would
be immediately understood by the relevant consumers as meaning “qualified plan” or
“qualified retirement plan.”8 Thus, Applicant contends the fact that its licensees
sometimes use the phrases “qualified plan” or “qualified retirement plan” in
advertisements or other marketing materials for its financial services offered under
the proposed mark QUALIFIED LEVERAGE STRATEGY is not evidence that
consumers encountering the proposed mark in the context of financial services would
immediately understand “qualified” standing alone (or as used in the proposed mark
as a whole) to refer to “qualified plan” or “qualified retirement plan.”9
Looking at the uses of “qualified” in the context of Applicant’s services as used in
published materials of Applicant’s licensees, the Examining Attorney maintains that

6 Applicant’s Reply Brief p. 3 (8 TTABVUE 4).
7 Applicant’s Appeal Brief at p. 5 (4 TTABVUE 6).
8 Applicant’s Appeal Brief at p. 5 (4 TTABVUE 6).
9 Applicant’s Reply Brief at p. 3 (8 TTABVUE 4).
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the terms “plan” or “retirement plan,” are necessarily assumed by consumers in
connection with “qualified,” for example:
“Simply put, your client’s assets are portable and don’t
have to remain locked within qualified plans. The Qualified
Leverage Strategy follows existing codes and guidelines to
strategically reposition qualified retirement plan assets . .
. .” August 12, 2017 Office Action, at TSDR 24.10
“Ideal candidates have: - Qualified Plan Assets of
$1,000,000+…” Id. at TSDR 30.11
“The Qualified Leverage Strategy (QLS) offers a solution to
significantly reduce the tax impact on qualified plans.” Id.
at TSDR 32; “The Qualified Leverage Strategy is an
innovative approach to accessing money from one’s
qualified retirement plan.” Id. at TSDR 33.12
“The strategic use of profit sharing plans in concert with
Roth IRAs and Cash Value Life Insurance has the potential
of re-characterizing qualified plan assets to tax free assets.
. . . The taxes on qualified plan monies at age 70 ½ . . .
Qualified Longevity Annuity Contracts that allow an
individual to postpone 25% of their qualified plan monies.
. . . By deferring qualified monies to age 70 ½ and age 85 .
. . ” March 7, 2018 Final Office Action, at TSDR 7.13
“Maximize your opportunities for qualified plan
contributions. . . . Any plan balance may be subject to both
income and state taxes. . . . The Qualified Leverage

10 QLS the QLS Program LLC, “A new and innovative way of thinking about qualified
retirement plan assets and life insurance,” 08/10/2017.
11 “Qualified Leverage Strategy with QQIS” 08/10/2017.
12 Quality Quote Insurance Solutions, “A New Way to Protect Your Assets My Minimizing
Your Tax Impact,”
08/ 10/2017.
13 “The Elimination of RMDs using the Qualified Leverage Strategy,” The Re-
Characterization of Taxable Income to Non-Taxable Income, 03/06/2018, advising
readers to “[w]atch the interview with retirement expert, Chris Jacob, CFP, President and
founder of Cadeau, a controlled licensee of the QLS Mark pursuant to an agreement with
Applicant dated July 2, 2015. Spalding Declaration, ¶ No. 6, pp. 2-3 (7 TTABVUE 6-7).
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Strategy (QLS) offers a solution to significantly reduce the
tax impact on qualified plans. . . . ” Id. at TSDR 14.14
The evidence shows that Applicant’s licensees15 pair “qualified” with “plan” and
“retirement plan” in their promotional materials when addressing topics related to
their discussion of Applicant’s QUALIFIED LEVERAGE STRATEGY financial
retirement plan consulting services. Additionally, Applicant’s own promotional
materials make it quite clear that its QUALIFIED LEVERAGE STRATEGY is
designed for customers’ qualified retirement plan assets.16 Therefore, “qualified” is a
well-used and recognized term in connection with “qualified retirement plans.”17

14 “Protecting Your Assets” by Retirement Administration Inc., 03/06/2018.
15 The Spalding Declaration identifies LifePro Financial Services, Inc., Quality Quote
Insurance Solutions, LLC, Cadeau, Retirement Administration, Inc., and Wealth
Consultants, as “controlled licensees” of Applicant.
While paragraph No. 6 of the Spalding Declaration (7 TTABVUE 6) identifies Retirement
Administration, Inc. as a controlled licensee of the QLS Mark pursuant to an “agreement
dated with QLS dated April 30, 2018” we note that the evidence shows use of QUALIFIED
LEVERAGE STRATEGY by Retirement Administration, Inc. at least as early as the March
6, 2018 printout attached to the March 7, 2018 Final Office Action. See March 7, 2018 Final
Office Action, TSDR 13-15 (Spalding Declaration uses alternate page citation to cite to same
Final Office Action at TSDR 9-10).
16 See Request for Reconsideration after Final Action, Exhibits 5 (Applicant’s brochure) and
6 (page from Applicant’s website) at TSDR 13: … thinking about qualified retirement plan
assets; TSDR 14: … and guidelines to strategically reposition your qualified retirement plan
assets … to set in motion a flexible yet strategic sequencing of assets both inside and outside
your qualified retirement plan. … TSDR 15: Our Strategy … takes an innovative approach
to accessing money from one’s qualified retirement plan. Designed to help our clients
minimize the tax impact on qualified plan assets and increase the value . . . Our proprietary
strategies deliver unique solutions for qualified plan assets. …
17 Definitions of “qualified plan”: “An annuity that one buys along with one’s employer. That
is, the annuitant and his/her employer both make tax-deferred contributions to the plan for
a certain period, with withdrawals coming upon retirement. . . .” THE FREE DICTIONARY,
Farlex Financial Dictionary, © Farlex, Inc.,; and “An employer-sponsored tax-deferred
employee benefit plan that meets the standards of the Internal Revenue Code of 1954 and
that qualifies for favorable tax treatment.” DAVID L. SCOTT, WALL STREET WORDS: AN A TO Z
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The question of whether a mark is merely descriptive must be determined not in
the abstract, that is, not by asking whether one can guess, from the mark itself,
considered in a vacuum, what the services are, but rather in relation to the services
for which registration is sought, that is, by asking whether, when the mark is seen in
connection with the services, it immediately conveys information about their nature.
In re Patent & Trademark Servs. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998). Because
Applicant’s services provided under the proposed mark QUALIFIED LEVERAGE
STRATEGY are rendered in connection with qualified retirement plan assets,
“qualified” has a descriptive meaning and connotation. Descriptiveness is considered
in relation to the relevant services. DuoProSS v. Inviro, 103 USPQ2d at 1757.
Definitions of “leverage”:
Applicant’s definition:
3. The use of credit or borrowed funds, often for a
speculative investment, as in buying securities on
margin.18
Examining Attorney’s definitions:

Leverage is the investment strategy of using borrowed
money: specifically, the use of various financial

GUIDE TO INVESTMENT TERMS FOR TODAY’S INVESTOR (Copyright © 2003 by Houghton Mifflin
Company), March 7, 2018 Final Office Action at TSDR 21.
Definition of “qualified retirement plan”: A plan that meets the requirements of Internal
Revenue Code Section 401(a) and the Employee Retirement Income Security Act of 1974
(ERISA) and is thus eligible for favorable tax treatment….” InvestorWords
03/07 /2018, March
7, 2018 Final Office Action at 17.
18 Request for Reconsideration after Final Action, TSDR at 11, THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE, 8/2/2018.
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instruments or borrowed capital to increase the potential
return of an investment. . . .19
The degree to which an investor or business is utilizing
borrowed money. . . . Leverage is not always bad, however;
it can increase the shareholders’ return on investment and
often there are tax advantages associated with borrowing.
also called financial leverage.20
Leverage is the investment strategy of using borrowed
money: specifically, the use of various financial
instruments or borrowed capital to increase the potential
return of an investment. Leverage can also refer to the
amount of debt used to finance assets. . . . Leverage refers
to the act of taking on debt. . . . Like any potentially
dangerous instrument, leverage must be handled carefully,
But if you understand how leverage works and learn to
handle it correctly, you can use its power to build wealth.21
The foregoing dictionary definitions show that the term “leverage,” in relation to
Applicant’s financial services, refers to the degree to which an investor or business is
utilizing borrowed money.
“Bank financing to fund your life insurance premiums may
provide a tax-efficient option that allows you to preserve
your current cash flow, avoid liquidating your investments,
and leverage your wealth….”22
Leverage can increase a shareholder’s return on investment and often there are tax
advantages associated with borrowing, which is also referred to as “financial

19 August 12, 2017 Office Action at TSDR 8, 8/10/2017.
20 March 7, 2018 Final Office Action at TSDR 24, InvestorWords 3/7/2018.
21 March 7, 2018 Final Office Action at TSDR 26, 32, 3/7/2018.
22 March 7, 2018 Final Office Action at TSDR at 14, 03/06/2018.
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leverage.”23 Applicant argues that the term “leverage” has multiple meanings and the
fact that leverage is capable of more than one interpretation in the context of
Applicant’s services shows that the term is suggestive and not merely descriptive.24
However, so long “as any one of the meanings of a term is descriptive, the term may
be considered to be merely descriptive.” “That a term may have other meanings in
different contexts is not controlling.” In re Mueller Sports Med., Inc., 126 USPQ2d
1584, 1590 (TTAB 2018) (quoting In re Chopper Indus., 222 USPQ 258, 259 (TTAB
1984)); In re Franklin Cnty. Historical Soc’y, 104 USPQ2d 1085, 1087 (TTAB 2012)
(citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979)).
Lastly, the definitions of “strategy”:

Applicant’s definition:

2. A plan of action resulting from strategy or intended to
accomplish a specific goal . . . 25

Examining Attorney’s definition:

The general or specific approach to investing that an
individual, institution, or fund manager employs. . . . The
principles guiding investment practices. . . . 26

23 Examining Attorney’s Appeal Brief (6 TTABVUE 9-10).
24 Applicant’s Appeal Brief at p. 6 (4 TTABVUE 7). While Applicant also states that the term
“leverage” is suggestive as a double entendre, it did not cite to any evidence or argument
supporting its significance as a double entendre.
25 Request for Reconsideration after Final Action, at TSDR 12, THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE, 8/2/2018.
26 August 12, 2017 Office Action, at TSDR 18, 8/10/2017.
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These dictionary definitions indicate that the term “strategy” in relation to
Applicant’s financial services refers to a plan to allocate investable assets among
investment choices such as bonds, certificates of deposit, commodities, real estate,
stocks (shares). “The strategy [of the Qualified Leverage Strategy] is designed to
minimize the tax impact on qualified plan assets and increase the value and
transferability of traditional assets.”27
In view of the foregoing, the Examining Attorney contends that Applicant’s
proposed mark QUALIFIED LEVERAGE STRATEGY is merely descriptive of a
feature or characteristic of Applicant’s services because each of the individual terms
as well as the combined wording merely describe a feature or characteristic of
Applicant’s services identified as “financial consulting services in the fields of
personal wealth, estate planning, financial planning, financial valuation, risk
management, and asset management; Financial services, namely, wealth
management services; financial retirement plan consulting services.”28
Applicant argues that its proposed mark does not immediately tell something
about its financial consulting services, wealth management services or financial
retirement plan consulting services because “the mark does not employ any general
and readily recognizable word formulations, either in popular or technical usage. No
phrase or concept referred to as ‘qualified leverage’ or ‘qualified leverage strategy’ is

27 Examining Attorney’s Appeal Brief (6 TTABVUE 10); March 7, 2018 Final Office Action,
at TSDR 10, “Quality Quote Insurance Solutions Announces Strategic Partnership to Market
the Qualified Leverage Strategy (QLS)” 03/06/2018.
28 Examining Attorney’s Appeal Brief (6 TTABVUE 4).
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used in common parlance or in the financial, wealth management or retirement
planning fields.” Rather, it contends that its proposed mark is a phrase it coined “that
employs a previously unused and somewhat incongruous word combination whose
import would not be grasped without some measure of imagination and ‘mental
pause;’” it “is suggestive of employing methods of positional advantage, developed
through training, experience and qualification, for accomplishing specific goals,
without directly identifying or describing what those methods, experience, and goals
are.”29 Applicant contends that its proposed mark is not a phrase that reflects the
usual or normal manner in which the characteristics, ingredients or qualities of
financial services are described; rather, it requires thought and imagination to
recognize and draw any potential relation between the mark and the services.
Because there is “no instantaneous connection between the mark and its services,”
Applicant maintains that QUALIFIED LEVERAGE STRATEGY is suggestive and
not merely descriptive.30
A mark is suggestive if some imagination, thought, or perception is needed to
understand the nature of the goods and/or services described in the mark; whereas a
descriptive term immediately and directly conveys some information about the goods
and/or services. See StonCor Grp., Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 111
USPQ2d 1649, 1652 (Fed. Cir. 2014) (citing DuoProSS v. Inviro, 103 USPQ2d at
1755)); In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB 1978).

29 Applicant’s Appeal Brief p. 3 (4 TTABVUE 4); August 3, 2018 Request for Reconsideration
after Final Action at TSDR 5.
30 Applicant’s Appeal Brief p. 4 (4 TTABVUE 5).
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The Examining Attorney contends that the proposed mark is not suggestive
because when used in connection with the specified services it conveys information
about the services to consumers, namely, that the Applicant’s services feature
qualified leverage strategy financial planning, a method of accessing money from a
qualified retirement account and/or a financial strategy for leveraging funds from
qualified plans or accounts.31
Applicant argues that the Examining Attorney’s attempt to rely on other text in
its licensees’ advertising and marketing materials is improper.32 In short, Applicant
contends that the proposed mark QUALIFIED LEVERAGE STRATEGY at most tells
consumers something general or ambiguous about Applicant’s services without being
specific or immediately telling consumers anything with a degree of particularity.
According to Applicant, any information given by the mark is indirect and vague,
causing consumers to pause and reflect on the mark, exercise thought or engage in a
multi-step reasoning process, to determine what attribute may be identified by the
mark, demonstrating that QUALIFIED LEVERAGE STRATEGY is suggestive, not
merely descriptive.33

31 Examining Attorney’s Appeal Brief (6 TTABVUE 4-5); Examining Attorney’s Supplemental
Brief (14 TTABVUE 3).
32 Applicant’s Reply Brief at p. 3 (8 TTABVUE 4). There is nothing improper with looking to
the licensees’ materials to determine what significance the proposed mark would have to the
relevant purchaser of the services. See e.g., In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d
1707, 1710 (Fed. Cir. 2017); In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978).
33 Applicant’s Appeal Brief pp. 8-9 (4 TTABVUE 9-10); Applicant’s Reply Brief at p. 5 (8
TTABVUE 6).
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The combination of the wording in the proposed mark, QUALIFIED LEVERAGE
STRATEGY, does not lend itself to any other meaning or significance other than
identifying features of Applicant’s services. No novel spellings or unique
juxtapositions are apparent in the mark to support a finding of a nondescriptive or
suggestive meaning. This word combination does not diminish the descriptiveness of
the overall mark, because each whole word is present in the mark and each maintains
its own meaning. Thus, the proposed mark serves only to impart to consumers
information about Applicant’s services, which feature a method of accessing money
from a qualified retirement account and financial strategy for leveraging qualified
plans and accounts.34
Neither does Applicant’s proposed mark constitute a unitary mark with a unique,
incongruous or otherwise nondescriptive meaning in relationship to its services.35
While a combination of descriptive terms may be registrable if the composite creates
a unitary mark with a separate, nondescriptive meaning, In re Colonial Stores, Inc.,
394 F.2d 549, 157 USPQ 382, 385 (CCPA 1968), the mere combination of descriptive
words does not necessarily create a nondescriptive word or phrase. In re Assoc’d
Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). Generally, if the individual
components of a mark retain their descriptive meaning in relation to the services, the
combination results in a composite mark that is itself descriptive and not registrable.

34 Examining Attorney’s Appeal Brief (6 TTABVUE 12).
35 Applicant’s Appeal Brief p. 7 (4 TTABVUE 8).
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In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016) (citing In re
Tower Tech, 64 USPQ2d at 1317-18).
The test for unitariness inquires whether the elements of a mark are so integrated
or merged together that they cannot be regarded as separable. See In re EBS Data
Processing, 212 USPQ 964, 966 (TTAB 1981); In re Kraft, Inc., 218 USPQ 571, 573
(TTAB 1983). In a unitary mark, these observable characteristics must combine to
show that the mark has a distinct meaning of its own independent of the meaning of
its constituent elements. In other words, a unitary mark must create a single and
distinct commercial impression. Dena Corp. v. Belvedere Int’l, Inc., 950 F.2d 1555, 21
USPQ2d 1047, 1052 (Fed. Cir. 1991).
Such is not the case here. Looking at each term, none of them alters the meaning
or commercial impression of the other terms to create a new and/or different
commercial impression, i.e., the term “QUALIFIED” does not alter the meaning or
the commercial impression of the terms “LEVERAGE” and “STRATEGY;”
“LEVERAGE” does not alter the meaning or the commercial impression of the terms
“QUALIFIED and “STRATEGY;” and the term “STRATEGY” does not alter the
meaning or the commercial impression of the terms “QUALIFIED” and
“LEVERAGE.”
Applicant argues the record is devoid of any evidence that “qualified leverage” or
“qualified leverage strategy” has a recognized meaning as reflected in dictionary
entries or use in the field. “As neither ‘qualified leverage’ nor ‘qualified leverage
strategy’ has any established meaning in the context of Applicant’s services,”
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Applicant maintains “it simply cannot be said that QUALIFIED LEVERAGE
STRATEGY immediately and directly conveys information about those services to a
relevant purchaser.”36
Both the individual components and the composite result are descriptive of
Applicant’s services and do not create a unique, incongruous, or nondescriptive
meaning in relation to the services. The evidence shows that the terms within the
proposed mark have significance in the financial industry and are used in a
descriptive sense in the financial industry and, as such, relevant consumers are
accustomed to seeing these terms in the financial industry. Thus, the combination of
the wording “QUALIFIED LEVERAGE STRATEGY” does not convey anything
different from that of the plain meaning of each term. The proposed mark in
connection with the specified services conveys information about the services to
consumers that Applicant’s services feature qualified leverage strategy financial
planning, a method of accessing money from a qualified retirement account.
Applicant also contends that it coined the proposed mark noting that “… [n]o
phrase or concept referred to as ‘qualified leverage’ or ‘qualified leverage strategy’ is
used in common parlance or in the financial, wealth management or retirement
planning fields.”37 However, the fact that Applicant and its licensees may be the only
entities using this word combination in the financial industry is not controlling. That
Applicant, and its licensees, may be the first or only users of a merely descriptive

36 Applicant’s Appeal Brief at pp. 6-7 (4 TTABVUE 7-8).
37 Applicant’s Appeal Brief p. 3 (4 TTABVUE 4).
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designation does not necessarily render a word or term incongruous or distinctive; as
in this case, the evidence shows that the proposed mark is merely descriptive. See In
re Fat Boys, 118 USPQ2d at 1514; In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1826
(TTAB 2012); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009).
Lastly, Applicant’s citation to third-party registrations for non-similar marks
which were determined to be suggestive and registrable are not conclusive on the
issue of descriptiveness. Each case must stand on its own merits, and a mark that is
merely descriptive must not be registered on the Principal Register simply because
other such marks appear on the register. In re theDot Commc’ns Network LLC, 101
USPQ2d 1062, 1067 (TTAB 2011); In re Scholastic Testing Serv., Inc., 196 USPQ 517,
519 (TTAB 1977). Moreover, it is well settled that each case must be decided on its
own facts and the Trademark Trial and Appeal Board is not bound by prior decisions
involving different records much less different marks. See In re Nett Designs, Inc.,
236 F. 3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). Thus, the question of whether
a mark is merely descriptive is determined based on the evidence of record at the time
each registration is sought. In re theDot Commc’ns, 101 USPQ2d at 1064; TRADEMARK
MANUAL OF EXAMINING PROCEDURE §1209.03(a) (Oct. 2018).
II. Conclusion
The proposed designation is not suggestive nor is it unitary, but instead is merely
descriptive of the specified services. Both the individual components and the
composite result retain their descriptive meaning in relation to Applicant’s services
and do not create a unique, incongruous, or nondescriptive meaning in relation to the
Serial No. 87440482

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services. Nothing about the combination of QUALITY LEVERAGE STRATEGY
changes the meaning of these words or evokes a non-descriptive commercial
impression. Thus, “QUALITY LEVERAGE STRATEGY” is merely descriptive of
features or characteristics of Applicant’s services and is not entitled to registration.
Decision: The refusal to register Applicant’s proposed mark QUALIFIED
LEVERAGE STRATEGY under § 2(e)(1) of the Trademark Act is affirmed.