Deus Tech-nologies, L.L.C.

Trademark Trial and Appeal Board

Jan 30, 2002

No. 75542207 (T.T.A.B. Jan. 30, 2002)

1/30/02
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Deus Technologies, L.L.C.
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Serial No. 75/542,207
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Mark Harrison for Deus Technologies, L.L.C.

Yong Oh (Richard) Kim, Trademark Examining Attorney, Law
Office 115 (Tomas Vlcek, Managing Attorney).
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Before Hanak, Hohein and Bucher, Administrative Trademark
Judges.

Opinion by Hanak, Administrative Trademark Judge.

On August 25, 1998 Deus Technologies, L.L.C.
(applicant) filed an intent-to-use application seeking to
register RS RAPIDSCREEN in the form shown below for
“medical imaging system that scans chest x-rays
previously found to be negative for lung cancer by
radiologists and sends those with suspect nodules back to
the radiologists for a second look. The system cannot be
used independently to diagnose or ‘screen’ for lung
cancer. The system is not ‘rapid’ in that it actually
slows the diagnostic system down by sending back certain
x-rays previously found to be negative for another look.”
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.

Ser. No. 75/542,207

In the first Office Action the Examining Attorney
stated that applicant’s “identification of goods is
unacceptable as indefinite.” In addition, the Examining
Attorney, citing Section 6 of the Trademark Act, required
that applicant disclaim the exclusive right to use
RAPIDSCREEN apart from the mark as shown.
Subsequently, applicant amended its identification
of goods to read as follows: “Medical imaging system
comprising computer hardware and software, film
digitizer, monitor and printer, for assisting
radiologists in diagnosing early stage lung cancer by
scanning chest x-rays.” This identification of goods was
acceptable to the Examining Attorney.
However, applicant did not agree to the disclaimer
requirement, arguing that the term RAPIDSCREEN was not
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Ser. No. 75/542,207

merely descriptive of its proposed goods pursuant to
Section 2(e)(1) of the Trademark Act.
Subsequently, the refusal to register was made
final. Applicant appealed to this Board. Applicant and
the Examining Attorney filed briefs. Applicant did not
request a hearing.
As applicant and the Examining Attorney agree, the
only issue before this Board is whether the term
RAPIDSCREEN is merely descriptive of applicant’s goods
pursuant to Section 2(e)(1) of the Trademark Act, and
hence must be disclaimed pursuant to Section 6 of the
Trademark Act. A mark is merely descriptive pursuant to
Section 2(e)(1) of the Trademark Act if it immediately
conveys information about a significant quality or
characteristic of the relevant goods or services. In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In
re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818,
819 (Fed. Cir. 1986). The mere descriptiveness of a term
is not judged in the abstract, but rather is judged in
relation to the goods or services for which applicant
seeks registration. In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215, 218 (CCPA 1978); In re Omaha
National Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1861
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Ser. No. 75/542,207

(Fed. Cir. 1987).
The Examining Attorney has made of record
approximately 15 stories from the NEXIS database wherein
the term “rapid screen” is used to describe various
medical tests which provide quick results. Typically,
these tests can be performed by an ordinary consumer, and
do not require the expertise of a physician. The results
of these quick or rapid tests (screens) are of limited
reliability, and “positive” results indicate the need for
more extensive testing conducted by medical
professionals. For example, an article appearing in the
November 1, 1998 issue of American Family Physician
describes two rapid screens, one to test for possible
alcoholism and the second to test for possible memory
impairment. The first rapid screen for alcoholism
consists of two simple questions, which if answered “yes”
indicates the need for further testing. The rapid screen
for memory impairment consists of three simple questions,
and an individual’s failure to answer one or more of
these questions may indicate the need for further
testing. Indeed, this article concludes by cautioning
that such rapid screens are “no substitute for a complete
psychiatric evaluation in patients.” Another article
appearing on the
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June 4, 1998 United Press International news cycle refers
to a 15 minute syphilis test as a “rapid screen.”
However, this article goes on to note that this rapid
screen suffers from certain limitations in that it has a
significant number of false “positives.”
Based on the foregoing, there can be no doubt that
the term “rapid screen” is descriptive of, if not generic
for, various medical tests which produce quick results,
but whose results require further, more comprehensive
testing. However, as applied to applicant’s goods, the
term “rapid screen” (whether depicted as one or two
words) is not merely descriptive. Applicant’s medical
imaging system for assisting radiologists is not a first
test whose results may suggest the need for further
testing. Rather, applicant’s medical imaging system is
being developed as a second, backup test to review x-rays
which have already been examined by radiologists and
found to be “negative.” Applicant is entirely correct in
arguing that its RS RAPIDSCREEN medical imaging system
does indeed add time to the overall diagnostic process by
subjecting x-rays which have been already reviewed by
radiologists to yet a second review. Moreover, nowhere
is there any suggestion that this
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second review conducted by applicant’s proposed medical
imaging system will in any way be rapid.
Accordingly, based on this present record, we have,
at a minimum, doubts as to whether applicant’s medical
imaging system can properly be described as a “rapid
screen.” Of course, when doubts on the question of mere
descriptiveness exist, it is the policy of this Board to
resolve such doubts in applicant’s favor. In re Gourmet
Bakers, Inc., 173 USPQ 565 (TTAB 1972). However, we
hasten to add that when applicant commences use of its
medical imaging system and submits to the Examining
Attorney literature describing such a system, the
Examining Attorney would be free to again raise the issue
of mere descriptiveness if such literature indicates that
applicant’s medical imaging system operates in a rapid
manner or in some fashion speeds up the overall
diagnostic process.
Decision: The refusal to register is reversed.

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