Allina Health System

Trademark Trial and Appeal Board

Mar 14, 2002

No. 75866749 (T.T.A.B. Mar. 14, 2002)

3/17/02
Paper No. 8
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Allina Health System
________

Serial No. 75/866,749

_______

Eric D. Paulsrud of Leonard, Street and Deinard for Allina
Health Systems.

Gina M. Fink, Trademark Examining Attorney, Law Office 103
(Michael Hamilton, Managing Attorney).
_______

Before Walters, Bucher and Drost, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On December 8, 1999, Allina Health Systems (applicant)
filed an intent-to-use application to register the mark
AMERICAN HEART INSTITUTES (in typed form) on the Principal
Register for “cardiovascular health care services” in
International Class 42. The Examining Attorney ultimately
refused to register applicant’s mark on three grounds.
First, the Examiner Attorney held that applicant’s
mark so resembles the following four registrations owned by
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
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the American Heart Association that there would be a
likelihood of confusion if the marks were used on the
respective goods and services in the application and
registrations. 15 U.S.C. § 1052(d). The first two
registrations are, respectively, for the marks AMERICAN
HEART ASSOCIATION in typed form1 and for the same words with
the design shown below2.

for “association services in the field of prevention and
treatment of heart disease” in International Class 42.
The Examining Attorney cited two additional
registrations also for the marks, respectively, AMERICAN
HEART ASSOCIATION in typed form3 and AMERICAN HEART

1 Registration No. 1,091,140 issued on May 9, 1978, and it
contains a disclaimer of the words “Heart Association.” The
registration has been renewed.
2 Registration No. 1,288,391 issued July 31, 1984, and it
contains a disclaimer of the words “Heart Association.”
Affidavits under Sections 8 and 15 have been accepted and
acknowledged, respectively.
3 Registration No. 2,072,127 issued June 17, 1997, under the
provisions of Section 2(f) of the Trademark Act.
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ASSOCIATION and the substantially similar design4 for the
following goods and services:
Educational computer software in the field of
cardiovascular health, fitness, nutrition,
and/or prevention or reduction of cardiovascular
disease and stroke. International Class 9

Printed pamphlets, brochures, manuals, books,
cookbooks, booklets, leaflets, flyers, wallet cards,
posters, informational sheets and newsletters,
research monographs, journal reprints, charts,
diagrams, posters, adhesive backed stickers, and kits
comprising one or more of the foregoing materials, all
relating to the promotion of cardiovascular health,
fitness and nutrition, and/or the prevention or
reduction of cardiovascular disease and stroke.
International Class 16

Charitable fundraising services for promoting
research, education and other activities relating to
cardiovascular health, fitness and nutrition, and/or
the prevention or reduction of cardiovascular disease
and stroke; promoting memorial donations to
cardiovascular charity. International Class 36

Educational services, namely, conducting seminars,
courses, conferences and scientific session meetings,
lectures and workshops, producing radio and television
spots, relating to cardiovascular health, fitness and
nutrition, and/or prevention or reduction of
cardiovascular disease and stroke. International
Class 41.

Promoting public awareness of cardiovascular health,
fitness and nutrition, and/or prevention or reduction
of cardiovascular disease and stroke. International
Class 42.5

4 Registration No. 2,072,129 issued June 17, 1997, under the
provisions of Section 2(f) in part for the words “American Heart
Association.”
5 Registration No. 2,072,127 also contains the following
language, “Association services, research and community services,
namely,…,” at the beginning of the services identified in
International Class 42.
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Second, the Examining Attorney refused to register
applicant’s mark because it so resembles the mark MID
AMERICA HEART INSTITUTE in typed form for “hospital and
health care services,” in International Class 42,6 that
there would be a likelihood of confusion if the marks were
used on the respective services in the application and
registration. 15 U.S.C. § 1052(d).
Third, the Examining Attorney refused to register
applicant’s mark because she determined that the mark was
primarily geographically descriptive of applicant’s
services under Section 2(e)(2) of the Trademark Act. 15
U.S.C. § 1052(2)(2).
After the Examining Attorney made the refusals final,
this appeal followed. Both applicant and the Examining
Attorney filed briefs. An oral hearing was not requested.
Regarding the cited Registration Nos. 1,091,140;
1,288,391; 2,072,127; and 2,072,129, the Examining Attorney
argues that these marks and applicant’s mark begin with the
same two words AMERICAN HEART; and that the only other
words in the marks, INSTITUTES and ASSOCIATION, are highly
descriptive and/or generic with respective to applicant’s

6 Registration No. 1,843,298 issued July 5, 1994, and it contains
a disclaimer of the words “Heart Institute.” Affidavits under
Sections 8 and 15 have been accepted and acknowledged,
respectively.
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and registrant’s services. Furthermore, the Examining
Attorney maintains that these words “are also close
synonyms for each other, essentially meaning organization.”
Examining Attorney’s Br. at 3. The Examining Attorney also
argues that the services in the application and
registrations are related and submitted examples of third-
party registrations that contain services similar to those
in the cited registrations and the application.
Regarding the cited Registration No. 1,843,298, the
Examining Attorney contends that the only differences in
the marks are applicant’s deletion of the word “mid” and
the use of slightly different endings for America[n] and
Institute[s]. The Examining Attorney also concluded that
the applicant’s and registrant’s health care services are
the same.
Regarding the geographically descriptive refusal, the
Examining Attorney’s position is that “America” and
“American” “denotes the United States origin or the scope
of the goods or services.” Examining Attorney’s Br. at 7.
The addition of generic or highly descriptive matter to
this geographic term did not persuade the Examining
Attorney that the term is not primarily geographically
descriptive.
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Applicant argues that there are registered marks that
share the term AMERICA and AMERICAN; and that other marks
include the term HEART and INSTITUTE. Applicant refers to
the other cited registration MID AMERICA HEART INSTITUTE as
evidence that its mark can co-exist with the registered
marks. Applicant also maintains that the American Heart
Association marks “identify a public charity through which
the public is educated as to issues related to the heart
and through which funds are raised to further such public
awareness.” Applicant’s Br. at 6. In regard to the
relatedness of its services and the American Heart
Association services, applicant argues that “physicians
generally make specific referrals to specific service
providers.” Applicant’s Br. at 7 (emphasis in original).
Applicant’s conclusion is that there is no likelihood of
confusion because medical practitioners “are highly
educated, highly sophisticated consumers” who can
“recognize even slight differences between marks used to
identify competing organizations.” Id. Applicant asserts
that the same sophisticated purchasers argument supports a
finding of no likelihood of confusion with the mark MID
AMERICA HEART INSTITUTE. It also argues that other
entities use the term “heart institute” with a geographic
indicator. Finally, applicant submits that the “term
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AMERICAN is more than just a geographical term in relation
to its services.
After considering the record and the positions of the
Examining Attorney and the applicant, we affirm each of the
refusals.
I. Refusal based on American Heart Association marks
In likelihood of confusion cases, we must consider the
factors set forth in In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 1361, 177 USPQ 563, 567 (CCPA 1973), keeping
in mind that “[t]he fundamental inquiry mandated by § 2(d)
goes to the cumulative effect of differences in the
essential characteristics of the goods and differences in
the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
The first factor we consider is whether the marks are
similar in sound, appearance, meaning or commercial
impression. du Pont, 476 F.2d at 1361, 177 USPQ at 567.
Applicant has applied to register the mark AMERICAN HEART
INSTITUTES in typed form while the cited marks are for the
words AMERICAN HEART ASSOCIATION, both in typed form and
with a design. Registrant’s and applicant’s marks begin
with the same two words, “American” and “Heart,” in the
same order. The Examining Attorney has also submitted
dictionary definitions to show that the terms “association”
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and “institute” can have similar meanings. An
“association” is defined as “an organized body of people
who have an interest, an activity, or a purpose in common,”
while an “institute” is defined as an organization founded
to promote a cause: a cancer research institute.”
American Heritage Dictionary of the English Language, Third
Edition (1992). We agree with the Examining Attorney that
these words can have related meanings.
We must compare the marks in their entireties to
determine if the marks are similar. It is well settled
that it is improper to dissect a mark. In re Shell Oil
Co., 992 F.2d 1204, 1206, 26 USPQ2d 1687, 1688 (Fed. Cir.
1993). However, more or less weight may be given to a
particular feature of a mark for rational reasons. In re
National Data Corporation, 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985).
In a similar case, the Court of Appeals for the
Federal Circuit held that the marks CASH MANAGEMENT ACCOUNT
and CASH MANAGEMENT EXCHANGE were confusingly similar.
CASH MANAGEMENT ACCOUNT and THE CASH MANAGEMENT
EXCHANGE are, in large part, identical in sound and
appearance and have a general similarity in cadence.
In addition, the words ACCOUNT and EXCHANGE, while not
synonyms, both have the connotation of monetary
transactions, so that the marks carry the same overall
connotation. The sole feature in National's mark
which is different from the registered mark, in our
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view, is not sufficiently different to distinguish the
marks to the public.

National Data, 224 USPQ at 752.
In that case, the Court noted that confusion was
likely even assuming that the term “cash management” was
generic or at least highly descriptive. Id. Similarly,
applicant’s and the American Heart Association’s marks
include identical initial words and third words with
similar connotations. To the extent that two of the
American Heart Association’s registrations include a heart
design with a torch, it is clearly not sufficient to
distinguish these registrations from applicant’s mark. The
overall impression created by applicant’s and registrant’s
marks is substantially similar.
Next, we turn to the issue of whether applicant’s
services and registrant’s goods and services are related.
Relatedness may exist even if the products and services are
not competitive “if they could come to the attention of the
same types of customers suggesting a common origin.” MSI
Data Corp. v. Microprocessor Systems, Inc., 220 USPQ 655,
658 (TTAB 1983) See also In re Hyper Shoppes (Ohio), Inc.,
837 F.2d 463, 464-65, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988)
(Grocery and general merchandise store services found
related to furniture). Safety-Kleen Corp. v. Dresser
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Industries, 518 F.2d 1399, 186 USPQ 476 (CCPA 1975)
(Maintenance services found related to parts for cleaning
units).
We must consider the goods and services as they are
described in the identification of goods and services in
the applications and registration. “’Likelihood of
confusion must be determined based on an analysis of the
mark applied to the … services recited in applicant’s
application vis-à-vis the … services recited in [a] …
registration, rather than what the evidence shows the …
services to be.’” In re Dixie Restaurants, 105 F.3d 1405,
41 USPQ 1531, 1534 (Fed. Cir. 1997)(punctuation in
original), quoting, Canadian Imperial Bank of Commerce v.
Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d 1813, 1816 (Fed.
Cir. 1987). See also Octocom Systems Inc. v. Houston
Computer Services, 918 F.2d 937, 942, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990) (“The authority is legion that the
question of registrability of an applicant's mark must be
decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant's goods,
the particular channels of trade or the class of purchasers
to which sales of the goods are directed”).
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Applicant submits that the registrant uses its mark
“to identify a public charity through which the public is
educated as to issues related to the heart and though which
are raised to further such public awareness.” Applicant’s
Br. at 6. However, while two of the registrations contain
charitable fund raising services in the identification of
goods and services, the fact that registrant may be a
charity dose not mean that we do not also consider the
other goods and services recited in the cited
registrations.
The goods and services in two of the cited
registrations (Nos. 2,072,127 and 2,072,129) are associated
with preventing or reducing heart disease and promoting
cardiovascular health, for example, ”educational services,
namely, promoting seminars … relating to cardiovascular
health, fitness and nutrition, and/or prevention or
reduction of cardiovascular disease and stroke,”
“educational computer software in the field of
cardiovascular health,” and “promoting public awareness of
cardiovascular health, fitness and nutrition, and/or
prevention or reduction of cardiovascular disease and
stroke.” Applicant’s services are also related to the
heart, i.e., cardiovascular health care services. In
addition, “health care” is defined as “the prevention,
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treatment, and management of illness and the preservation
of mental and physical well-being through the services
offered by the medical and allied health professions.” The
American Heritage of the English Language, Third Edition
(1992).7 Registrant’s services and goods are in the area of
preventing or reducing cardiovascular diseases and stroke
and applicant’s cardiovascular health care services would
also logically include services involving the prevention or
reduction of cardiovascular diseases and stroke.
Therefore, these services are related.
In addition, the Examining Attorney submitted evidence
to establish a relationship between applicant’s
cardiovascular health care services and registrant’s
association services in the field of prevention of heart
disease in Registration Nos. 1,091,140 and 1,288,391. The
evidence consists of registrations to show that the same
mark is used to indicate the source of health care and/or
medical services and association services. See
Registration No. 2,396,165 (Association services and health
care services in the field of smoking cessation); No.
2,390,236 (health care services and association services

7 As requested by the Examining Attorney, we take notice of this
dictionary definition. University of Notre Dame du Lac v. J.C.
Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff'd,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
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providing health and medical information); and No.
2,264,613 (association services and health care services
for the foot and ankle). See In re Mucky Duck Mustard Co.,
6 USPQ2d 1467, 1470 n.6 (TTAB 1988) (Although third-party
registrations “are not evidence that the marks shown
therein are in use on a commercial scale or that the public
is familiar with them, [they] may have some probative value
to the extent that they may serve to suggest that such
goods or services are the type which may emanate from a
single source”). These registrations support the Examining
Attorney’s position that association services and health
care services in the cardiovascular field may emanate from
the same source.
Applicant argues that the true consumers of its
cardiovascular health care services are highly educated,
highly sophisticated professionals. However, the class of
purchasers of its services, as defined in the application,
is not limited to medical practitioners either explicitly
or implicitly. Nor is there any evidence that supports
applicant’s assertion. Prospective purchasers or users of
cardiovascular health care services would include those
individuals seeking care for existing conditions and
preventive health care. These purchasers and users would
overlap with purchasers or users of registrant’s services
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directed to the promotion of cardiovascular health, and
they would not be limited to sophisticated purchasers.
Canadian Imperial Bank, 1 USPQ2d at 1816 (Board properly
considered “whether, in the entire market for that service
(banking services), there was a likelihood of confusion”).
When the confusingly similar marks AMERICAN HEART
ASSOCIATION, AMERICAN HEART ASSOCIATION and design, and
AMERICAN HEART INSTITUTES would be used on the related and
similar goods and services identified in the respective
application and registrations, there is a likelihood of
confusion because they could be encountered by the same
persons in a manner or under circumstances suggesting a
common source.
II. Refusal based on MID AMERICA HEART INSTITUTE mark
The Examining Attorney also refused registration in
view of a prior registration of the mark MID AMERICA HEART
INSTITUTE for hospital and health care services. We agree
with the Examining Attorney that registrant’s “health care
services” would encompass “cardiovascular health care
services.” Therefore, applicant’s and registrant’s
services include the same services. Examining Attorney’s
Br. at 7.
Next we look at whether the marks MID AMERICA HEART
INSTITUTE and AMERICAN HEART INSTITUTES are substantially
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similar so that confusion is likely. Because the marks
would be used, at least in part, on virtually identical
services, there is a greater likelihood that when similar
marks are used in this situation, confusion would be
likely. Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir.
1992) (“When marks would appear on virtually identical
goods or services, the degree of similarity necessary to
support a conclusion of likely confusion declines”).
Both marks include the same three core words,
“America[n] Heart Institute[s].” Applicant uses the word
“American” while the registrant uses the term “Mid
America.” While there are differences, we find that they
are not sufficient to distinguish the marks when the marks
are compared in their entireties. AMERICAN HEART
INSTITUTES and MID AMERICA HEART INSTITUTE would look and
sound similar and they would have similar commercial
impressions. The differences between a plural and singular
ending for the word “institute” and the presence of absence
of the letter “n” in the word “America” would escape most
people’s attention, and they do not significantly affect
the commercial impression, appearance or sound of the
marks. Wilson v. Delaunay, 245 F.2d 877, 114 USPQ 339, 342
(CCPA 1957) (“There is no material difference in the
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trademark sense between the singular and plural form of the
word ‘Zombie’ and they will therefore be regarded as the
same mark”). The terms “America” and “American” are
virtually synonymous, one being the noun form and the other
the adjective form of the same word. In re BankAmerica
Corp., 231 USPQ 873, 875 (TTAB 1986) (BANK OF AMERICA
primarily signifies an American bank).
The only significant difference in the marks is the
applicant’s deletion of the term “mid” in registrant’s
mark. We cannot find that the absence of the term “mid”
changes the sight, sound, and commercial impression of
applicant’s mark so that there would be no likelihood of
confusion with registrant’s mark. The term “mid” can mean
“middle” or “central.” Webster’s II New Riverside
University Dictionary (1984).8 To the extent that “mid
America” can refer to the central or middle part of the
United States, it refers to an area that encompasses a
large percentage of America. Both marks prominently
feature the word “America[n]” and combine the word with the
nearly identical words “Heart Institute[s].” Bank of
America National Trust and Savings Association v. American
National Bank of St. Joseph, 201 USPQ 842 (TTAB 1978)

8 We take judicial notice of this definition.
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(AMERIBANC and design and AN AMERIBANC BANK so resembles
BANK AMERICA and BANK OF AMERICA so as to be likely to
cause confusion). Our determination is reinforced by the
fact that the services are identical and that we must
resolve any doubt about the likelihood of confusion in
favor of the registrant. Shell Oil, 26 USPQ2d at 1691.
Applicant relies heavily on a list of federal and
state trademark registrations to show that “marks that
differ only slightly in that they identify different
geographic areas are sufficiently different for the
consumers of the services to distinguish one source form
another.” Applicant’s Br. at 7-8 (emphasis added). The
Examining Attorney has not objected to this list of federal
and state9 trademark registrations and applications.
Examining Attorney’s Br. at 4 n.1. We certainly cannot
disagree with applicant’s basic proposition that there are
significant differences between TEXAS HEART INSTITUTE and
PHILADELPHIA HEART INSTITUTE. However, the list of
registrations in applicant’s briefs does not provide any
support for the proposition that when virtually the same

9 The state registrations are not helpful in making a
determination as to whether a mark is entitled to federal
trademark registration. Kraft, Inc. v. Balin, 209 USPQ 877, 880
(TTAB 1981) (“Applicants have included in the stipulated facts
its Nevada state registration, but this is incompetent to prove
anything material to this proceeding”).
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geographic term is used with the phrase “heart
institute[s]” the deletion of the word “mid” is enough to
avoid confusion. Even if consumers would notice the
difference, it is likely that they would assume that there
was some association or relationship between these health
care services. In response to applicant’s argument that
the cited registrations owned by two different parties co-
exist, we do not have before us the records in those cases,
and we note that applicant’s mark and services are more
closely related to each of these marks than the
registrations are to each other.
III. Geographically Descriptive Refusal
The Board has set out the following test to use in
determining whether a mark is primarily geographically
descriptive:
[T]he Trademark Examining attorney would need to submit
evidence to establish a public association of the
goods with that place if, the place named in the mark
may be so obscure or remote that purchasers would fail
to recognize the term as indicating the geographical
source of the goods to which the mark is applied or
(2) an admitted well-recognized term may have other
meanings, such that the term’s geographical
significance may not be the primary significance to
prospective purchasers. Where, on the other hand,
there is no genuine issue that the geographical
significance of a term is its primary significance and
where the geographical place is neither obscure nor
remote, a public association of the goods with the
place may ordinarily be presumed from the fact that
the applicant’s goods come from the geographical place
named in the mark.
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In re Handler Fenton Westerns, Inc., 214 USPQ 848,
849-50 (TTAB 1982).
The Examining Attorney submits that “American” is a
geographic term and the addition of the generic or highly
descriptive term “Heart Institutes” does not convert the
mark into a non-geographically descriptive term. “The word
AMERICA is obviously well known to the United States public
as the name of a geographic location. The question is
whether the primary significance of the term AMERICAN as
used in applicant’s mark would be this geographic location
or whether the term would possess some other, at least
equally significant connotation.” In re Monograms America
Inc., 51 USPQ2d 1317, 1319 (TTAB 1999) (MONOGRAMS AMERICA
for consultation services for owners of monogramming shops
simply signifies United States origin and/or geographical
scope). See also BankAmerica, 231 USPQ at 875 (“BANK OF
AMERICA primarily signifies an American Bank and that, with
respect to computerized data processing services which
admittedly emanate from this country, a public association
of those services with the place named in applicant’s mark
(i.e. America) may be presumed”); American Diabetes
Association v. National Diabetes Association, 533 F. Supp.
16, 214 USPQ 231, 233 (E.D. Pa. 1981) (“The term American
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is geographically descriptive of the market within which
the American Diabetes Association functions”); Finance
Company of America v. BankAmerica Corp., 205 USPQ 1016
(TTAB 1979, amended 1980) (FINANCE COMPANY OF AMERICA held
primarily geographically descriptive).
We agree with the Examining Attorney’s conclusion that
the geographically descriptive term AMERICAN remains a
primarily geographic term when it is combined with the
generic or highly descriptive term “HEART INSTITUTES.”
Monograms America, 51 USPQ2d at 1319 (“Moreover, the
addition of highly descriptive matter to a geographic term
does not detract from the mark’s primary significance as
being geographically descriptive”). The Examining Attorney
has submitted evidence that shows that the term “heart
institute” is a generic or highly descriptive term in the
field of health care services.
The organization applied for state approval to expand
Inova Fairfax Hospital by 177 beds, including a 156-
bed tower which would house a world-class heart
institute.
Washington Post, April 24, 2000, p. F57.

In 1998, LRMC opened a heart institute, and a major
part of the expansion is related to plans to bring
neurosurgery to the hospital.
Orlando Sentinel, April 1, 2000, p. 1.

Indeed, fund raising seems to have been Kaplan’s
hallmark in Columbus. Chapman recalls one story of
Kaplan’s tenacious work at Riverside to help secure a
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$7.5 million donation for a new $15 million heart
institute.
Nashville Business Journal, February 4, 2000, p. 3.

His group had hoped to use the cash from the sale to
finance a heart institute, but complications with
Methodist squashed those plans.
Modern Physician, February 1, 2000, p. 60.

The volunteer groups and the thrift store aim to raise
another $3 million by 2002 to create a cardiology
endowment for the hospital’s heart institute.
Los Angeles Times, December 27, 1999, p. B1.
Applicant argues that while the term “AMERICAN may be
a geographical indicator, it is much more in the context of
the Subject Mark.” Applicant’s Br. at 12. Applicant goes
on to state:
The term AMERICAN in the context of the Subject Mark
is used to convey the ideas associated with the term.
The term AMERICAN does not mean “highest and best in
the world,” “state of the art” “modern and well-
equipped” or highly trained.” The term is used,
however, because such ideas are associated with the
term.

Id. (emphasis added).
While it is not entirely clear what applicant submits
that the term “American” in its mark means, it is also
clear that whatever ideas may be associated with
applicant’s use of the term “American,” the meaning for a
heart institute located in America would still be primarily
geographically. Compare In re Midwest Nut & Seed Co., 214
USPQ 852 (TTAB 1982) (Board rejected applicant’s argument
that the term California was not geographically descriptive
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because it signifies “a sunny pleasant climate”) with In re
Jim Crockett Promotions Inc., 5 USPQ2d 1455 (TTAB 1987)
(“GREAT AMERICAN BASH suggestive for promoting, producing
and presenting professional wrestling matches”).
Here, we agree with the Examining Attorney that the
term AMERICAN HEART INSTITUTES is primarily geographically
descriptive.
Decision: The refusals to register applicant’s mark
under Section 2(d) on the grounds that applicant’s mark is
confusingly similar to the marks for AMERICAN HEART
ASSOCIATION and MID AMERICA HEART INSTITUTE are affirmed.
The refusal to register applicant’s mark on the ground that
the mark is primarily geographically descriptive is also
affirmed.