Therapy by Amanda LLC

Trademark Trial and Appeal Board

Sep 21, 2018

No. 87771775 (T.T.A.B. Sep. 21, 2018)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: September 21, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Therapy by Amanda LLC
_____

Serial No. 87771775
_____

Gene Bolmarchich of The Law Offices of Gene Bolmarchich,
for Therapy by Amanda LLC.
Andrea P. Butler, Trademark Examining Attorney, Law Office 124,
Lydia Belzer, Managing Attorney.
_____

Before Bergsman, Ritchie and Pologeorgis,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Therapy by Amanda LLC (“Applicant”) seeks registration on the Principal
Register of the mark S&M (in standard characters) for “sex therapy services,” in Class
44.1
The Examining Attorney refused registration of Applicant’s mark under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 2(e)(1), on the ground that S&M is merely

1 Application Serial No. 87771775 was filed on January 26, 2018, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as January 20, 2018.
Serial No. 87771775
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descriptive because it describes a feature of the identified services “which include
counseling regarding alternative sexual behaviors and practices such as S&M.”2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. The appeal is fully briefed. We affirm the refusal to register.
I. Mere Descriptiveness – Applicable Law
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 goods of the
applicant is merely descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). A term is “merely
descriptive” within the meaning of 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.” In re Chamber of Commerce of the U.S., 675 F.3d 1297,
102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960,
82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). “On the other hand, if one must exercise
mature thought or follow a multi-stage reasoning process in order to determine what
product or service characteristics the term indicates, the term is suggestive rather
than merely descriptive.” In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB
1978); see also In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983); In re Universal
Water Sys., Inc., 209 USPQ 165, 166 (TTAB 1980).
Whether a mark is merely descriptive is determined in relation to the goods or
services for which registration is sought, not in the abstract or on the basis of
guesswork, and we must consider “the context in which [the mark] is being used, and

2 Examining Attorney’s Brief (6 TTABVUE 4).
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the possible significance that the term would have to the average purchaser of the
goods [or services] because of the manner of its use or intended use.” In re Chamber
of Commerce of the U.S., 102 USPQ2d at 1219 (quoting In re Bayer AG, 82 USPQ2d
at 1831). In other words, we evaluate whether someone who knows what the goods or
services are will understand the mark to convey information about them. DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757
(Fed. Cir. 2012); In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)).
We start our analysis by defining Applicant’s “sex therapy services.” “Sex therapy”
is defined as the “treatment of sexual disorders that have psychological causes,
employing psychiatric counseling, behavior modification and education.”3 It is a “form
of behavior modification or psychotherapy directed specifically at difficulties in sexual
interaction.”4 Sex therapy has many forms.
Comarital therapy refers to the Masters and Johnson
model, in which both members of the couple are treated by
a team consisting of one male and one female therapist.
The couple approach recognizes that sexual dysfunctions
take place in the context of the interaction between two
people and are not the exclusive problem of one member of
the pair. Individual therapy is employed for those without

3 Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2018). The
Board may take judicial notice of dictionary definitions, 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); Threshold.TV Inc. v. Metronome
Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010). See also the website Colorado Sex
Therapy (coloradosextherapy.com) attached to the April 20, 2018 Office Action (TSDR, p. 34).
References to the TSDR database are to the downloadable .pdf format.
4 Sex Therapy, ENCYLOPAEDIA BRITANNICA (britannica.com). The Board may take judicial
notice of information from encyclopedias. B.V.D. Licensing Corp. v. Body Action Design Inc.,
846 F.2d 727, 6 USPQ2d 1719, 1721 (Fed. Cir. 1988) (“dictionaries and encyclopedias may be
consulted”); In re Weiss Watch Co., 123 USPQ2d 1200, 1205 n.10, 12 (TTAB 2017); In re C.H.
Hanson Co., 116 USPQ2d 1351, 1355 n.10 (TTAB 2015).
Serial No. 87771775
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cooperating partners and may involve the use of a
surrogate partner or may focus on exercises that can be
practiced by an individual to improve his or her sexual
interactions. Group therapy, in which individuals discuss
feelings about sex, is also employed for both single-sex and
male–female groups.5
According to Colorado Sex Therapy (coloradosextherapy.com),
If you have a sex or intimacy problem, sex therapy could be
a great solution for you. Sexual dysfunctions for both men
and women can often be treated effectively with sex
therapy. Sex therapy is ideal for treating libido on one end
of the spectrum and sex addiction on the other end of the
spectrum. People who have been abused are also excellent
candidates for sex therapy as are people with fetishes and
alternative sexualities like S&M. Sex therapy can be
effective for adolescent’s [sic] and adults or any age.6
Dr. Tiger Devore’s website (tigerdevore.com) defines sex therapy as
“psychotherapy that is focused on various aspects of sex and sexuality.”7
Fetish and alternative sexualities are all of those kinds of
sex that go beyond mainstream ideas of sex, from swinging
lifestyles, to S&M, to all of those sexual interests that don’t
necessarily include a partner, but focus instead of on an
object or ritual.8
Applicant’s website (sexandmagic.com) describes its sex therapy services as
follows:
Sex Therapy
Let’s address any concerns you might have about pleasure,
sexual functioning, intimacy, or bedroom activities. We

5 Sex Therapy, ENCYLOPAEDIA BRITANNICA (britannica.com).
6 April 20, 2018 Office Action (TSDR 34).
7 Id. (TSDR 9).
8 Id. (TSDR 10).
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embody a sex-positive philosophy and are fully welcoming
to all lifestyles, genders, kinks, and more.9
S&M is an abbreviation for “sadism and masochism” or “sadomasochism.”10
“Sadomasochism” is defined as
1. Interaction, especially sexual activity, in which one
person enjoys inflicting physical or mental suffering on
another person, who derives pleasure from experiencing
pain.
2. Gratification, especially sexual, gained through
inflicting or receiving pain; sadism and masochism
combined.11
There is ample evidence that consumers are familiar with the abbreviation of
S&M. The Strut website (strutsf.org) posted an “S&M and Kinky Sex Resources”
page.12 The Strut webpage provides the following information:
Want to spice things up, safely? Get info on BDSM, S&M
and kinky sex including how to talk about it, how to do it
(without getting hurt or harming your partner) and how to
negotiate it with partners.13

9 Id. (TSDR 7).
10 Dictionary.com based on the RANDOM HOUSE DICTIONARY (2018) attached to the March
20, 2018 Office Action (TSDR 8). See also YourDictionary.com attached to the March 20, 2018
Office Action (TSDR 4); URBAN DICTIONARY (urbandictionary.com) attached to the April 20,
2018 Office Action (TSDR 13).
11 Dictionary.com based on the Random House Dictionary (2018) attached to the March 20,
2018 Office Action (TSDR 8). See also YourDictionary.com attached to the March 20, 2018
Office Action (TSDR 4); URBAN DICTIONARY (urbandictionary.com) attached to the April 20,
2018 Office Action (TSDR 13).
12 April 20, 2018 Office Action (TSDR 11).
13 Id.
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Cosmopolitan magazine (cosmopolitan.com) posted an article/podcast dated
November 29, 2016, entitled “12 Important Things You Should Know About S&M.”14
The article/podcast provides the following information:
For tons of people, their idea of S&M is mostly limited to
what they’ve seen in Fifty Shades franchise. But the truth
is, there’s a whole world of S&M out there, and it has
something enjoyable for everyone – from the shy newbie to
the experienced masochist.
* * *
1. S&M is a type of sexual play that falls under the
umbrella of BDSM.
“S&M technically stand for sadism and masochism,”
explains Dr. Drucker. “It’s part of BSDM, which is bondage,
dominance, sadism and masochism, or submission and
dominance – It’s basically just the act of causing abuse or
giving abuse during sex in a way that’s consensual and
enjoyable.”15
Psychology Today magazine (psychologytoday.com) also posted an article about
S&M on June 19, 2016 (originally published November 1, 1995).
An Inside Look at S&M
Kinky sex: inside S&M
It’s the ultimate break from thoroughly modern stresses on
the self.
* * *
Across the country, from sophisticated cities to subdued
suburbs, men and women are acting our fantasies of sexual
dominance and submission. With their own partners or
specially hired ones, they’re turning to rituals of

14 Id. (TSDR 19).
15 Id. (TSDR 20).
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sadomasochism. To borrow their own favorite term, they’ve
happily become “sex slaves” to their submissive desires.16
S&M is synonymous with sadism and masochism or sadomasochism which is an
approach to sexual interaction that may be treated through, or otherwise discussed
in, sex therapy and, therefore, S&M is merely descriptive of a subject treated by
Applicant’s services. See In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1715 (TTAB
2011) (citing Modern Optics, Inc. v. Univis Lens Co., 234 F.2d 504, 506, 110 USPQ
293, 295 (C.C.P.A. 1956)) (holding NKJV substantially synonymous with merely
descriptive term “New King James Version” and thus merely descriptive of bibles);
In re BetaBatt Inc., 89 USPQ2d 1152, 1155 (TTAB 2008) (holding DEC substantially
synonymous with merely descriptive term “direct energy conversion” and thus merely
descriptive of a type of batteries and battery related services); TRADEMARK MANUAL
OF EXAMINING PROCEDURE (“TMEP”) §1209.03(h) (Oct. 2017).
Applicant argues that “there is no evidence that the services at issue are ever
associated in any way with ‘sadism and masochism.’”17 In making that argument,
Applicant simply ignored the Colorado Sex Therapy website
(coloradosextherapy.com) (people with fetishes and alternative sexualities like S&M
are candidates for sex therapy), Dr. Tiger Devore’s website (tigerdevore.com) (S&M
is a fetish that may be treated through sex therapy), and its own website wherein
Applicant states that it address any concerns potential patients have about “pleasure,

16 Id. (TSDR 29).
17 Applicant’s Brief (4 TTABVUE 3).
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sexual functioning, intimacy, or bedroom activities,” including all lifestyles and
kinks.18
Applicant argues that “there is no evidence that Applicant ever has performed, or
ever will perform, any services for a patient with a ‘problem’ or ‘condition’ that in any
way implicates sadism and masochism.”19 Again, Applicant simply ignored the
evidence in its own website wherein Applicant states that any concerns potential
patients have about “pleasure, sexual functioning, intimacy, or bedroom activities,”
including all lifestyles and kinks, which could include S&M. Assuming arguendo that
Applicant does not counsel patients with a possible S&M issue, nevertheless, we must
determine whether Applicant’s mark is merely descriptive based on the description
of services. See In re Allen Elec. and Equip. Co., 458 F.2d 1404, 173 USPQ 689, 690
(CCPA 1972) (“trademark cases must be decided on the basis of the identification of
the goods as set forth in the application.”); In re Vehicle Information Network Inc., 32
USPQ2d 1542, 1544 (TTAB 1994); In re Dataline Corp., 203 USPQ 878, 879 (TTAB
1979) (whether a mark is primarily geographically descriptive pursuant to Section
2(e)(2) is determined by the description of goods, not what the evidence discloses such
goods to be). Because the services at issue are sex therapy services and sex therapy
services may include counseling about S&M, the mark S&M used in connection with
those services merely describes an approach to sexual interaction that Applicant
might treat or otherwise discuss.

18 A “kink” is defined, inter alia, as a “bizarre or unconventional sexual preference or
behavior.” Dictionary.com based on the RANDOM HOUSE UNABRIDGED DICTIONARY (2018).
19 Applicant’s Brief (4 TTABVUE 3).
Serial No. 87771775
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II. Conclusion
We have carefully considered all arguments and evidence of record, including any
not specifically discussed. We find that S&M is merely descriptive of a feature of the
Applicant’s sex therapy services under Section 2(e)(1) of the Trademark Act.

Decision: The refusal to register Applicant’s mark S&M is affirmed.