Naturopathic National Council, Inc.

Trademark Trial and Appeal Board

Feb 27, 2008

No. 78851026 (T.T.A.B. Feb. 27, 2008)

Mailed: February 27, 2008
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Naturopathic National Council, Inc.
________

Serial No. 78851026
_______

Howard M. Cohn, Esq. for Naturopathic National Council,
Inc.

Dominic Fathy, Trademark Examining Attorney, Law Office 108
(Andrew Lawrence, Managing Attorney).
_______

Before Hairston, Holtzman and Zervas, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Naturopathic National Council, Inc. seeks to register
on the Supplemental Register the certification mark DOCTOR
OF NATUROPATHIC MEDICINE (standard character form, DOCTOR
disclaimed) for services ultimately identified as “medical
services featuring organic medicine, functional medicine
and natural healing.”1

1 Serial No. 78851026, filed on March 31, 2006, which alleges
dates of first use of April 15, 2005. The application was
originally filed seeking registration on the Principal Register.
The examining attorney refused registration under Section 2(e)(1)
of the Trademark Act, and applicant amended to seek registration
on the Supplemental Register.
THIS OPINION IS NOT
A PRECEDENT OF THE
TTAB
Ser No. 78851026
2
The application includes the following statement:
The certification mark, as used by persons
authorized by the certifier, certifies that [the]
services are provided by individuals who have
successfully completed their undergraduate
education and post-graduate education in the field
of naturopathy from an accredited school, the
individual’s degree is legitimate, the individual
has proven to be highly knowledgeable in the field
of traditional naturopathy by successfully
completing the board certification exam, the
individual has successfully completed an internship
of supervised practical training to further ensure
public safety, the individual has successfully
completed a jurisprudence exam to ensure compliance
of [sic] the law as it relates to the field of
traditional naturopathy, the individual is of legal
immigration status, the individual has malpractice
insurance, maintain[s] a standard of excellence
through continuing education and that the
individual maintains a good standing in the
community.

The trademark examining attorney has issued a final
refusal to register under Section 23 of the Trademark Act,
on the ground that applicant’s mark is generic for the
identified services.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs.
A mark is generic if it refers to the class, genus, or
category of goods and/or services on or in connection with
which it is used. In re Dial-A-Mattress Operating Corp.,
240 F.3d 1341, 57 USPQ2d 1807 (Fed. Cir. 2001), citing H.
Marvin Ginn Corp. v. Int’l. Ass’n. of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986).
Ser No. 78851026
3
The critical issue in genericness cases is whether
members of the relevant public primarily use or
understand the term sought to be protected to refer
to the genus of goods or services in question.
Determining whether a mark is generic therefore
involves a two-step inquiry: First, what is the
genus of goods or services at issue. Second, is
the term sought to be registered or retained on the
register understood by the relevant public
primarily to refer to that genus of goods or
services? (citations omitted)

H. Marvin Ginn Corp., 228 USPQ at 530.
The examining attorney has the burden of establishing
by clear evidence that a mark is generic and thus
unregistrable. In re Merrill Lynch, Pierce, Fenner and
Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987).
Evidence of the relevant public’s understanding of a term
may be obtained from any competent source, including
testimony, surveys, dictionaries, trade journals,
newspapers, and other publications. In re Northland
Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961 (Fed.
Cir. 1985).
In support of his position that the mark DOCTOR OF
NATUROPATHIC MEDICINE is generic for the identified
services, the examining attorney submitted the following
dictionary definitions:
doctor: 1. A person, especially a physician,
dentist, or veterinarian, trained in the healing
arts and licensed to practice. 2a. A person who
has earned the highest academic degree awarded by a
college or university in a specified discipline.
Ser No. 78851026
4
b. A person awarded an honorary degree by a college
or university. 3. abbr. Dr. Used as a title and
form of address for a person holding the degree of
doctor. The American Heritage Dictionary of the
English Language (4th ed. 2000).

medicine: 1. The science of diagnosing, treating,
or preventing disease and other damage to the body
or mind. The American Heritage Dictionary of the
English Language (4th ed. 2000).

naturopathy: A system of treatment of disease that
avoids drugs, and surgery, and emphasizes the use
of natural agents (as air, water, and herbs) and
physical means (as tissue manipulation and
electrotherapy).
naturopathic: adjective
Merriam-Webster Online Dictionary.

naturopath: a practitioner of naturopathy
www.mercksource.com

The examining attorney also submitted NEXIS articles
showing what he views as generic uses of the term “doctor
of naturopathic medicine.” Examples include the following:
Aimee Gould Shunney, a doctor of naturopathic
medicine and head of the wellness team at the
hospital’s Othmer Cancer Center, will conduct two
hour-long seminars…. (New York Daily News,
September 3, 2003);

Dr. Ellison, 35, a first assistant surgeon and a
doctor of naturopathic medicine, said he founded
the organization six years ago while at
Presbyterian Hospital. (The Dallas Morning News,
June 13, 2000);

By all accounts, Jane Guiltinan, doctor of
naturopathic medicine, is a competent, intelligent
and personable practitioner. (The Seattle Times,
December 6, 1998);

Ser No. 78851026
5
Children respond well to some herbal medicines,
agrees Donald Brown, a doctor of naturopathic
medicine in Seattle and author of Herbal
Prescriptions for Better Health (Prima Publishing,
$16). (USA TODAY, July 13, 1998); and

But Sporn, a doctor of naturopathic medicine, is
not licensed in Texas and can’t legally practice
his variety of “natural medicine” on Rachel or
anyone else. (Fort Worth Star-Telegram, October
27, 1996).

In addition, the examining attorney submitted
Internet printouts showing that a number of educational
institutions offer “Doctor of Naturopathic Medicine”
degrees or programs of study. Examples include the
following:

The Naturopathic College’s Doctor of Naturopathic
Medicine is a four-year program that trains
holistic primary care physicians.
http://ww.ncnm.edu;

The University of Bridgeport College of
Naturopathic Medicine is a non-profit, co-
educational professional institution which grants
the Doctor of Naturopathic Medicine (N.D.) degree
to graduates who successfully complete four
academic years of study including clinical
training.
http://www.bridgeport.edu;

For 100 years, National University of Health
Sciences has been a leader in the field of
complementary and alternative medical education.
National’s Doctor of Naturopathic Medicine program
provides you with a rigorous curriculum that blends
a thorough scientific foundation with comprehensive
training in naturopathic treatments.
http://www.naturalhealers.com; and

Ser No. 78851026
6
The Southwest College Doctor of Naturopathic
Medicine Program is completed in four years of
year-round attendance.
http://www.scnm.edu

Applicant, in urging reversal of the refusal to
register, presented no evidence to rebut the examining
attorney’s showing. Rather, applicant makes three
arguments. First, applicant maintains that prior to
issuance of the final refusal to register herein, the
examining attorney originally approved the involved
application for registration on the Supplemental Register,
that the application was subsequently withdrawn, and that
the examining attorney’s decision to withdraw the
application was improper. The decision by the examining
attorney to withdraw the involved application, after it was
approved for registration, is not appropriate subject
matter for consideration by the Board in this appeal.
Rather, this is a procedural matter and reviewable only by
petition to the Director. Thus, we can give no
consideration to applicant’s arguments in this regard in
reaching our decision herein.
Second, applicant argues that it is the only entity
authorized to license medical professionals in the field of
naturopathic medicine, and thus, legally entitled to use
the mark DOCTOR OF NATUROPATHIC MEDICINE; that third-party
Ser No. 78851026
7
uses of the designation “Doctor of Naturopathic Medicine”
are illegal; and that such illegal uses cannot serve as the
basis for finding that applicant’s involved mark is
generic. Suffice it to say that applicant offered no
evidence to support its contention that third-party uses of
this designation are illegal, and we will not disregard the
evidence of such uses in determining whether applicant’s
mark is a generic term.
Third, applicant argues that its mark “is not
descriptive or generic but is a suggestive mark that has
acquired secondary meaning … .” (Brief at 6). Because
applicant amended its application to seek registration on
the Supplemental Register, without condition, applicant has
conceded that the mark is descriptive and secondary meaning
is simply irrelevant. Thus, applicant cannot be heard to
argue at the briefing stage of the proceeding that its mark
is suggestive and/or has acquired secondary meaning.
We begin our analysis with a determination of the
genus of the services at issue. The services which
applicant certifies are identified as “medical services
featuring organic medicine, functional medicine and natural
healing.” Thus, in this case, the genus or class of
services is essentially naturopathic medical services. See
In re Council on Certification of Nurse Anesthetists, 85
Ser No. 78851026
8
USPQ2d 1403 (TTAB 2007); and In re American Institute of
Certified Public Accountants, 65 USPQ2d 1972 (TTAB 2003)
[Genus of services is that described by applicant’s chosen
identification of services]. Next, the relevant public for
these services consists of persons responsible for hiring
medical professionals with training in the field of
naturopathic medicine, e.g., hospital administrators, and
the general public seeking naturopathic medical services.
This brings us to the question of whether the relevant
public would understand the phrase DOCTOR OF NATUROPATHIC
MEDICINE primarily to refer to naturopathic medical
services. See H. Marvin Ginn, supra. The Nexis articles
show uses by others of the term “doctor of naturopathic
medicine” in a generic manner. By referring to the name of
a specific medical professional in small letters, the
authors use “doctor of naturopathic medicine” as a generic
noun. In addition, the Internet printouts show uses of the
phrase “Doctor of Naturopathic Medicine” in a generic
manner to refer to a program of study and/or degree awarded
in the field of naturopathic medicine.
We find that the evidence of record clearly and
convincingly establishes that the mark DOCTOR OF
NATUROPATHIC MEDICINE names a specific type of medical
professional and that the phrase is recognized and
Ser No. 78851026
9
understood as such. Specifically, it identifies a medical
professional in the field of naturopathic medicine.
A review of the specimen of record reveals that
applicant’s services consist of an examination and
supervised internship for naturopaths, the successful
completion of which certifies that he or she has achieved a
level of competency in the field of naturopathic medicine.
In our view, applicant’s mark DOCTOR OF NATUROPATHIC
MEDICINE is generic for applicant’s services, which
essentially are the providing of a certification program
for naturopaths.
The designation “doctor of naturopathic medicine”
should not be subject to exclusive appropriation, but
rather should remain free for others in the naturopathy
profession to use in connection with their medical
services. In re Boston Beer Co. L.P., 198 F.3d 1370, 53
USPQ2d 1056 (Fed. Cir. 1999).
Decision: The refusal to register is affirmed.