The name ALLERGY CARE was recently found to be a generic trademark and refused registration by the U.S. Patent and Trademark Office.
The applicant, James Haden M.D, sought registration of ALLERGY CARE on the Supplemental Register for “medical and healthcare services, namely medical treatment of allergies, asthma, immune disorders, and shortness of breath” in International Class 41.
The Examining Attorney had initially refused registration on the Principal Register on the grounds that the mark was merely descriptive of the services. A merely descriptive trademark is one that immediately and directly conveys some information about the applied for services. Since merely descriptive marks are not inherently distinctive, they are not eligible for registration on the Principal Register.
After the application was refused, the Applicant sought to amend the mark to the Supplemental Register. Trademarks are eligible for registration on the Supplemental Register if they are capable of distinguishing an applicant’s goods from those of others. This includes merely descriptive marks. When an Applicant seeks to amend its application from the principal to supplemental register, however, the Examining Attorney conducts a further examination to determine registrability. Here, the Examiner concluded that the mark ALLERGY CARE was in fact generic of medical and healthcare services that included the treatment of allergies. A generic trademark can never be registered, either on the Principal or Supplemental Register, as such terms fail to function as a source identifier.
A generic term refers to the name of a class or category of particular goods or services. A determination of genericness depends on its primary significance to the relevant consumer. This involves a two-step process: First, what is the genus of the goods or services at issue? Second, is the term sought to be registered understood by the relevant public primarily to refer to the genus as a whole?
Here, the Examining Attorney presented over 40 excerpts from internet web pages in which medical professionals used the term “allergy care” to refer to their medical and healthcare services. The Examiner also introduced evidence of the common dictionary definitions of “allergy” and “care” that evidenced that the Applicant’s services described the name of the common goods and services. Based on a totality of the evidence, the Board ruled that the mark ALLERGY CARE is generic and denied registration.
Health Marketer Alert. Before seeking to adopt or register a name for a new service line or campaign, make sure that is has sufficient distinctiveness to make it eligible for trademark protection. Regardless of whether you seek to register it or not, a trademark clearance search should first be conducted to mitigate the risk of infringing a third-party’s trademark rights.