Fetal Life, LLC

Trademark Trial and Appeal Board

Mar 24, 2020

87938891 (T.T.A.B. Mar. 24, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 24, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fetal Life, LLC
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Serial No. 87938891
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Joan L. Simunic, Law Office of J L Simunic
For Fetal Life, LLC.
April L. Rademacher, Trademark Examining Attorney, Law Office 108,
Kathryn E. Coward, Managing Attorney.
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Before Cataldo, Kuczma and Larkin,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Applicant, Fetal Life, LLC, seeks registration on the Principal Register of the
mark FETAL LIFE (in standard characters), identifying
Sensors for medical use to be worn by a human to gather human
biometric data and also including a tocodynamometer sold as a unit;
Medical apparatus, namely, fetal and maternal vital sign and physical
distress monitors; Medical instruments for measuring and displaying
fetal activity, namely, fetal movement or fetal heart rate; Medical
products, namely, biofeedback sensors; Patient monitoring sensors and
alarms; Portable medical devices with sensors to monitor the physical
Serial No. 87938891
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movements of a patient wearing or carrying the device, in International
Class 10.1

The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that
FETAL LIFE merely describes a function or purpose of the identified goods. Applicant
and the Examining Attorney filed briefs.
I. Evidentiary Matter
In its brief, Applicant argues:
Entering the phrase “fetal life” on a Bing search generates over 7 million
results, including websites that provide information about pregnancy
from inception through delivery. “Fetal life” may refer to fertilized ovum
implantation, fetal viability, fetal cardiac activity, development of the
fetal brainstem, fetal movement, or to maternal physical conditions
while pregnant. Moreover, “fetal life” may refer to a human being’s
physical condition prior to conception, including conditions and/or
behaviors that could impact pregnancy. Because of access to information
via the worldwide web, each of these significances, meanings, and
interpretations are readily apparent to consumers.2

However, Applicant did not introduce into evidence any of the putative search results
referenced in its brief.
In her brief, the Examining Attorney raises the following objection to Applicant’s
reference to the putative search results:

1 Application Serial No. 87938891 was filed on May 29, 2018, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intent
to use the mark in commerce.

2 Applicant’s brief, 4 TTAVUE 9.
Page references herein to the application record refer to the .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs refer to
the Board’s TTABVUE docket system.

Serial No. 87938891
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Applicant indicates that an internet search of the term “fetal life”
discloses results that provide “information about pregnancy from
inception through delivery.” Applicant’s internet materials have not
been properly made of record and are objected to. Although applicant
has discussed the contents of webpages as evidence against the refusal,
applicant provided only references to these webpages, which is not
sufficient to introduce the underlying webpages into the record.3

As we stated in In re Planalytics Inc., 70 USPQ2d 1454, 1457 (TTAB 2004), “[a]
mere reference to a website does not make the information of record.” Material
obtained through the internet generally is acceptable as evidence in ex parte
proceedings. See Trademark Trial and Appeal Board Manual of Procedure (TBMP) §
1208.03 and authorities cited therein. Proper submission of website evidence must
include a copy of the page itself, the URL of the website and the date the excerpt was
accessed. See In re I-Coat Co., LLC, 126 USPQ2d 1730, 1733 (TTAB 2018) Cf. Edom
Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012) (webpages inadmissible
because they did not include the URL).
In addition, even if Applicant had properly submitted web pages with its brief,
any evidence submitted with Applicant’s appeal brief that was not previously
submitted during prosecution would be untimely and would not be considered.4 See
Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d); TBMP §§ 1203.02(e) and 1207.01 and
authorities cited therein.

3 Examining Attorney’s brief, 6 TTABVUE 3.
4 The proper procedure for an applicant or examining attorney to introduce evidence after an
appeal has been filed is to submit a written request with the Board to suspend the appeal
and remand the application for further examination. See Trademark Rule 2.142(d), 37 C.F.R.
§ 2.142(d). See also TBMP § 1207.02 and authorities cited therein.
Serial No. 87938891
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Accordingly, the putative search results are not of record and will be given no
consideration.
II. Supplemental Register
In its brief, Applicant also argues:
Applicant believes that its mark is not merely descriptive, and therefore
requests that the statutory refusal be reversed. In the alternative,
Applicant is entitled to registration of its mark on the Supplemental
Register so the Applicant would be protected against conflicting marks
in later-filed USPTO applications.5

However, the Examining Attorney is correct that the involved application, based
upon Applicant’s assertion of its bona fide intent to use the mark in commerce under
Trademark Act Section 1(b), is not eligible for registration on the Supplemental
Register. Applicant has not alleged that its FETAL LIFE mark is in lawful use in
commerce, as required by Trademark Act Section 23, 15 U.S.C. §1091(a); see also 37
C.F.R. §2.47(a); and TMEP §714.05(a)(i) and authorities cited therein. Nor has
Applicant submitted an amendment to allege use under 37 C.F.R. §2.76; see also 37
C.F.R. §§2.47(d), 2.75(b); and TMEP §§815.02, 1102.03.
Accordingly, Applicant’s proposed amendment to seek registration on the
Supplemental Register will be given no consideration.
We turn now to the merits of this appeal.

5 4 TTABVUE 5.
Serial No. 87938891
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III. Mere Descriptiveness
In the absence of acquired distinctiveness,6 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)); see
also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015); In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). “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 Gyulay, 3 USPQ2d at 1009.
A term need only describe a single feature or attribute of the identified goods to
be descriptive. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d
1807, 1812 (Fed. Cir. 2001). Whether a mark is merely descriptive cannot be
determined in the abstract or on the basis of guesswork. Descriptiveness must be
evaluated “in relation to the particular goods for which registration is sought, the

6 Applicant has not made a claim of acquired distinctiveness. Accordingly, the question of
whether Applicant’s FETAL LIFE mark has acquired distinctiveness under Trademark Act
Section 2(f), 15 U.S.C. § 1052(f), is not before us.
Serial No. 87938891
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context in which it is being used, and the possible significance that the term would
have to the average purchaser of the goods because of the manner of its use or
intended use.” Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (quoting In re
Bayer AG, 82 USPQ2d at 1831). The question is not whether a purchaser could guess
the nature of the goods from the mark alone. Rather, we evaluate whether someone
who knows what the goods 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). To be merely descriptive, a term must forthwith convey an
immediate idea of a quality, feature, function, or characteristic of the relevant goods
or services with a “degree of particularity.” The Goodyear Tire & Rubber Co. v. Cont’l
Gen. Tire, Inc., 70 USPQ2d 1067, 1069 (TTAB 2008) (citing In re TMS Corp. of the
Americas, 200 USPQ 57, 59 (TTAB 1978) and In re Entenmann’s Inc., 15 USPQ2d
1750, 1751 (TTAB 1990)).
In her brief,7 the Examining Attorney argues (internal cites omitted):
As seen from applicant’s identification of goods, its goods are used to
monitor fetal movement, vital signs, heart rate and activity.

As seen from the attached evidence from oxforddictionaries.com, the
term “life” refers to “[t]he existence of an individual human being.”8

Therefore, the proposed mark merely describes a function or purpose of
the applicant’s goods, namely, they monitor or sense the existence of a
fetal human being.

7 6 TTABVUE 5.
8 September 27, 2018 first Office Action at .pdf 4-9.
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In further support of this contention, the Examining Attorney introduced into the
record screenshots from the following four websites from medical and medical-
technical trade journals utilizing the term “fetal life” in the context of various aspects
of prenatal health:9
Journal of Health & Medical Informatics
micsonline.org/openaccess/prenatal-fetal-life-in-the-mother
“We must know intrauterine fetal life not only for the fetal monitoring, but also
for the care of mother and fetus as an integrated life, and particularly for the
incubation of preterm infant, where the reproduction of intrauterine
environment is desired.”

Hindawi Computational and Mathematical Methods in Medicine
hindawi.com/journals/cmmm
“Moreover, the intrinsic complexity which characterizes fetal life and the
possible associated diseases complicates the prediction and control of fetal
development.”

JOGNN Journal of Obstetric, Gynecological & Neonatal Nursing
jognn.org/article/S0884-2175(15)34148-4/abstract
“Because fetal monitoring technology cannot detect a difference between a fetal
and maternal signal source, the user of the fetal monitor is responsible for
confirming fetal life prior to monitor use and then continuing to confirm that
the fetus is the signal source.” and

Cooper Surgical Medical Devices
coopersurgical.com/medical-devices/detail/medasonics-tria-fetal-
vasculardoppler
“Detect fetal life early in pregnancy. Assess the rate and rhythm of the fetal
heart.”

Applicant essentially argues that its FETAL LIFE mark may have several
meanings and only suggests a function, feature or characteristic of its goods.
The Examining Attorney’s evidence, excerpted above, includes only four uses of
the term “fetal life” in medical journals or journals discussing medical devices. The

9 February 9, 2019 final Office Action at .pdf 6-53.
Serial No. 87938891
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website excerpt from the Journal of Health & Medical Informatics uses the term “fetal
life” in the context of intrauterine fetal monitoring, care of a mother and fetus, and
preterm infant incubation, which suggests the term has some significance in
connection with the identified goods. The excerpt from the Hindawi Computational
and Mathematical Methods in Medicine article uses the term “fetal life” in the context
of the difficulties in assessing fetal health and development. The excerpt from the
JOGNN Journal of Obstetric, Gynecological & Neonatal Nursing discusses “fetal life”
in the context of the challenges of differentiating between fetal and maternal signal
sources when using fetal monitoring devices. Finally, the Cooper Surgical Medical
Devices article discusses the capacity of a product to detect “fetal life” early in
pregnancy. This evidence shows use of the term “fetal life” in connection with the
challenges of detecting, monitoring and assessing health signals from fetuses.
Further, we agree with the Examining Attorney that Applicant’s goods may be used,
inter alia, to detect and monitor various fetal health signals.
However, the evidence of record, consisting of a dictionary definition of “life” and
pages from four medical and scientific internet websites, falls short of demonstrating
that FETAL LIFE merely describes a function, feature or characteristic of Applicant’s
fetal health signal monitors and related goods with the required degree of
particularity. We acknowledge that the evidence shows four instances of fetal health
signals being referred to generally as “fetal life.” However, we agree with Applicant
that the Examining Attorney’s evidence is insufficient to show that FETAL LIFE
merely describes a particular function or feature of Applicant’s goods. The four
Serial No. 87938891
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journal articles are technical in nature and there is no indication regarding the extent
of their circulation or readership, even among medical professionals who might be
the purchasers or end users of some of the identified goods. “Fetal life” is a nebulous
term in these four articles. It is impossible to determine whether its use in them
simply represents use of the term in context, or indicates use of the term to describe
some particular aspect of neonatal health. As a result, the Examining Attorney’s slim
record evidence fails to demonstrate that “fetal life” describes a significant feature,
aspect or characteristic of the recited goods or their purpose such that the mark
FETAL LIFE as a whole may be merely descriptive of thereof. To the extent that
Applicant’s goods may be used, inter alia, to detect or monitor “fetal life,” imagination
or additional thought is required to reach that conclusion.
To the extent that any “doubts exist as to whether [the] term is descriptive as
applied to the . . . [goods] for which registration is sought, it is the practice of this
Board to resolve doubts in favor of the applicant and pass the mark to publication
with the knowledge that a competitor of applicant can come forth and initiate an
opposition proceeding in which a more complete record can be established.” In re
Stroh Brewery Co., 34 USPQ2d 1796, 1797 (TTAB 1994); see also In re Merrill Lynch,
Pierce, Fenner, and Smith Inc., 828 F.3d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir.
1987) (citing In re Gourmet Bakers, Inc., 173 USPQ 565 (TTAB 1972)).”
Decision: The refusal to register Applicant’s mark under Section 2(e)(1) on the
basis that the mark FETAL LIFE is merely descriptive of the identified goods, is
reversed.