American Academy of Family Physicians

Trademark Trial and Appeal Board

May 26, 2021

87308987 (T.T.A.B. May. 26, 2021)

Mailed: May 26, 2021
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re American Academy of Family Physicians
_____
Serial No. 87308987
_____
Penny R. Slicer of Stinson LLP
for American Academy of Family Physicians.

Patrick Carr, Trademark Examining Attorney, Law Office 125,
Heather Biddulph, Managing Attorney.
_____
Before Kuczma, Adlin and Pologeorgis, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant American Academy of Family Physicians seeks a Principal Register
registration for the proposed mark shown below

claiming that it has acquired distinctiveness under Section 2(f) of the Trademark Act,
15 U.S.C. § 1052(f), for: “printed materials, namely, brochures and information sheets
containing health care information” in International Class 16; and “providing online
This Opinion is Not a
Precedent of the TTAB
Serial No. 87308987
2
health care information” in International Class 44.1 The Examining Attorney finally
refused registration on the ground that the proposed mark is merely descriptive of
the identified goods and services under Section 2(e)(1) of the Act, and has not acquired
distinctiveness under Section 2(f) of the Act. The appeal is now fully briefed.2
I. Evidence and Arguments
There is no dispute that Applicant’s proposed mark is merely descriptive. 7
TTABVUE 11 (“Applicant does not dispute that the term FAMILYDOCTOR is
descriptive in the sense that it describes the type of physician who writes many of the
articles and in the sense that the website is intended to be a source of the type of
medical information that would be obtained from your ‘family doctor’.”). The question
is whether the proposed mark has acquired distinctiveness.

1 Application Serial No. 87308987, filed January 20, 2017 under: Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an intent to use the mark in commerce for the
Class 16 goods; and Section 1(a) of the Act, 15 U.S.C. § 1051(a), based on first use dates of
January 2, 2017 for the Class 44 services. After originally claiming that only the mark’s
literal element has acquired distinctiveness, Applicant now claims that the entire mark has
acquired distinctiveness. The application contains this description of the mark: “The mark
consists of the stylized letters ‘FAMILYDOCTOR.ORG’.” Color is not claimed as a feature of
the mark.
2 This summary covers only a small portion of the involved application’s long and tortured
prosecution and appeal histories, because only one issue remains on appeal: acquired
distinctiveness. Suffice it to say, however, that until the scope of the appeal was narrowed,
there were disputes about: whether the proposed mark is merely descriptive; whether a
disclaimer is appropriate and if so what should be disclaimed; and the extent of Applicant’s
Section 2(f) claim. Most of those issues have been resolved, because Applicant’s 2(f) claim now
applies to the entire mark, which is a concession that the proposed mark is merely
descriptive. Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d
1626, 1629 (Fed. Cir. 2009). See also U.S. Patent & Trademark Office v. Booking.com B.V.,
140 S.Ct. 2298, 2020 USPQ2d 10729 * 7-8 (2020). Applicant does not appeal the finding that
the proposed mark is merely descriptive.
Serial No. 87308987
3
A. The Examining Attorney’s Position
The Examining Attorney focuses primarily on evidence showing that the literal
element of Applicant’s mark, “familydoctor.org,” is highly descriptive of the provider
of the identified health care information goods and services. Obviously,
“familydoctor.org” is a domain name, and beginning with the second-level domain
“familydoctor,” a “family doctor” is “a doctor who does not specialize in any particular
area of medicine, but who has a medical practice in which he or she treats all types
of illness.” July 11, 2018 Office Action TSDR 17.3 Applicant’s website itself poses the
question “What is a Family Doctor?,” and answers it as follows:
Unlike other physicians who specialize in treating one
particular organ or disease, your family physician is
uniquely trained to care for you as a whole person,
regardless of your age or sex. In addition to diagnosing and
treating acute and chronic illnesses, your family physician
provides routine health screenings and counseling on
lifestyle changes in an effort to prevent illnesses before
they develop. And, if a health condition arises that requires
care from another specialist, your family physician will be
there to guide you and to coordinate all aspects of your care.
You and your family physician will work together to
achieve the best possible outcome in the most cost-effective
manner.

May 10, 2017 Office Action TSDR 5. See also July 11, 2018 Office Action TSDR 7-12
(linking to a blog providing health care information and indicating that one role of
family doctors is “patient education”); id. at 13-16 (additional descriptive uses of
“family doctor”); id. at 33-34; id. at 42-43 (family doctors’ “primary focus is on

3 https://www.collinsdictionary.com/dicationary/english/family-doctor.
Serial No. 87308987
4
preventative medicine” and they “provide education for disease prevention and
treatment of illnesses”); id. at 47-48.
The American Board of Family Medicine’s website provides a similar definition of
“family doctor,” and uses the term descriptively or generically, including in its “Find
a Physician Directory.” The Physician Directory is a form of “health care information”
falling within Applicant’s identification of goods and services. Id. at 13.4 More
generally, the record reveals that different types of doctors and other health care
providers often provide health care information. May 10, 2017 Office Action TSDR
26-33.
Turning next to the top-level domain portion of the literal element of Applicant’s
proposed mark, “.org” is “a generic top-level domain (gTLD) of the Domain Name
System (DNS) used in the Internet. The name is truncated from organization … The
domain was originally intended for non-profit entities.” Id. at 61 (Wikipedia entry for
“.org”) and 63 (“.ORG domains are usually intended for non-profit organizations.
However, there’s nothing legally preventing anyone from using an .ORG domain for
a for-profit business.”).
Based on this evidence, the Examining Attorney argues that the proposed mark
is not just merely descriptive, but “highly descriptive.” Specifically, “the wording
FAMILY DOCTOR is frequently used to refer to a common type of health care

4 We have not considered the Government of the Hong Kong Special Administrative Region,
College of Family Physicians of Canada or New Brunswick Medical Society websites because
they do not reveal anything about perceptions of the term “family doctor” in the United
States.
Serial No. 87308987
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provider,” and “consumers would perceive the wording FAMILY DOCTOR to refer
unmistakably to this type of medical care provider.” Furthermore, family doctors
“frequently provide articles online discussing health care information.” 19 TTABVUE
8-10, 13. “The addition of the wording ‘.ORG’ does not obviate the descriptiveness of
the mark as a whole, as it is a generic top-level domain name that does not serve as
a source indicator.” Id. at 10.
As for whether the proposed mark has acquired distinctiveness, the Examining
Attorney construes Applicant’s Section 2(f) claim as to the Class 16 goods, for which
the involved application is based on an intent to use, “as being based on the evidence
of applicant’s use of the [proposed] mark on the sufficiently related services in Class
44.” Id. at 13. The Examining Attorney argues that the “minimal” evidence of use of
the proposed mark for the Class 44 services is insufficient to establish that such a
highly descriptive mark has acquired distinctiveness, because the advertising,
sponsorship and other evidence does not show “that prospective consumers have come
to associate the applied-for mark with a single source.” Id. at 16-19. The Examining
Attorney specifically contends that the testimony from Applicant’s employees and
attorneys is “entitled to little weight” as it is “self-serving.” Id. at 15.
B. Applicant’s Position
Applicant’s Section 2(f) claim is based primarily on its use of the literal element
of the involved mark, FAMILYDOCTOR.ORG, rather than its use of that literal
element in the stylized form claimed in the involved application. For example, in her
declaration, Applicant’s attorney testifies that Applicant “initially adopted and began
using the name FAMILYDOCTOR.ORG in association with its website providing
Serial No. 87308987
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patient oriented information and articles relating to healthcare in 1998.” January 11,
2019 Request for Reconsideration TSDR 38. In support of this assertion, Applicant
submitted printouts from Applicant’s website covering several of the ensuing years
which do not display “familydoctor.org” in the stylized font for which Applicant seeks
registration:

Serial No. 87308987
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Id. at 23-25, 28.5 In fact, Applicant did not introduce any pre-2017 evidence of use of
the involved stylized mark, which is shown below:

Id. at 30. Furthermore, even today Applicant sometimes uses the literal element of
its mark in plain text, rather than the stylized form for which it seeks registration,
such as in this self-authored article touting a study which found Applicant’s articles
to be “readable”:

Id. at 35 (emphasis added).
In any event, Applicant’s Vice President and Chief Executive Officer confirmed
that Applicant “initially adopted and began using the name FAMILYDOCTOR.ORG

5 The Examining Attorney has not challenged the testimony accompanying these documents,
which reflects knowledge about how Applicant’s website appeared in the past, and therefore
the testimony is sufficient to establish the reliability of this Wayback Machine evidence.
Serial No. 87308987
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[without the involved mark’s stylization] in association with its patient-oriented
website featuring information and articles relating to healthcare in 1998,” and has
continued to use the name since then. January 21, 2020 Office Action response TSDR
12 (Declaration of Douglas E. Henley, MD ¶ 3). The website is popular, and “currently
has an average of about 5.5 million monthly page views and 4 million monthly unique
visitors.” Id. at 13 (Henley Dec. ¶ 4). The website also won the Association Media and
Publishing Excel Award in 2001 and 2012. Id. (Henley Dec. ¶ 6).
Applicant has received media attention. For example, PCMag listed Applicant’s
“familydoctor.org” website as a source of medical information, along with several
other sources of online medical information, as shown in the following chart from the
article:

Id. at 13, 33-40 (Henley Dec. ¶ 6 and Ex. D). Furthermore, Health Web Navigator has
recommended Applicant’s website “highly.” Id. at 13, 41-44 (Henley Dec. ¶ 6 and Ex.
Serial No. 87308987
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D). Applicant’s “familydoctor.org” website was mentioned briefly in a Time article
entitled “Should You Diagnose Yourself Online? Here’s What Doctors Think,” and a
“popsci.com” article entitled “There is Good Health and Fitness Advice On the Web –
Here’s How to Find It.” Id. at 47, 51-52.6
Since 2013, Applicant has earned $350,000 from sponsor advertising on its
website. Id. at 13 (Henley Dec. ¶ 7). In addition, Applicant “receives in excess of
$55,000 annually for licenses to content from the website FAMILYDOCTOR.ORG.”
Id. at 14 (Henley Dec. ¶ 8). For example, Applicant licenses its website content for
use “in a magazine that is displayed in the offices of physicians.” Id. at 14, 65-69
(Henley Dec. ¶ 8 and Ex. E) (displaying the involved stylized mark on the cover).
Applicant promotes its “familydoctor.org” website, and “has spent approximately
$88,000 in online advertising alone,” at least some of which displays the involved
stylized mark. Id. at 14, 71-74 (Henley Dec. ¶ 9 and Ex. F).
Applicant argues that this evidence is sufficient to establish acquired
distinctiveness, stressing that it began using the proposed mark “in association with
its website providing patient oriented information and articles relating to healthcare
in 1998.” 7 TTABVUE 5. Applicant claims that its “familydoctor.org” website “has
become popular and well-known” for healthcare information “as evidenced by the fact
that the website has an average of about 5.5 million monthly page views and 4 million
monthly unique visitors.” Id. at 8-9. Applicant concludes that the proposed mark “is

6 We have not considered Applicant’s listing on a Canadian website, January 21, 2020 Office
Action response TSDR 61, because it does not reveal anything about perception of the
involved mark in the United States.
Serial No. 87308987
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not so highly descriptive as to establish a high bar that even 20 years of exclusive use
does not satisfy,” as it does not “directly describe the information available on the
website” as would FAMILYMEDICINE.ORG or MEDICAL INFORMATION.ORG.
Id. at 11.
II. Analysis
Applicant argues that its proposed mark is entitled to registration under Section
2(f) of the Act because it has acquired distinctiveness. In other words, Applicant
argues, “in the minds of the public, the primary significance of [the term] is to identify
the source” of Applicant’s goods and services. 15 U.S.C. § 1052(f); Royal Crown Co. v.
The Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1045 (Fed. Cir. 2018) (citation
omitted). Applicant bears the burden of establishing its claim of acquired
distinctiveness. In re La. Fish Fry Prods., Ltd., 797 F.3d 1332, 116 USPQ2d 1262,
1264 (Fed. Cir. 2015).
A. The Proposed Mark’s Distinctiveness for Applicant’s Services, If
Any, Will Transfer to Applicant’s Goods
The involved application is based on Applicant’s intent to use the proposed mark
in commerce for its Class 16 goods, rather than actual use. “A claim of distinctiveness
under Section 2(f) normally is not raised in [an intent to use] application before the
applicant files an amendment to allege use or a statement of use because a claim of
acquired distinctiveness, by definition, requires prior use.” In re Olin Corp., 124
USPQ2d 1327, 1333 (TTAB 2017).
Here, however, Applicant relies on an exception to this general rule which allows
an intent to use applicant to establish a prima facie case of acquired distinctiveness
Serial No. 87308987
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“where it can show that [the] same mark acquired distinctiveness for sufficiently
similar or related goods, and that this acquired distinctiveness will transfer to the
goods specified in the application when the mark is used in connection with them.”
In re Olin, 124 USPQ2d at 1333 (citing, among others, In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)).
The Examining Attorney effectively concedes that Applicant’s printed materials
containing health care information and its online healthcare information services are
related. 19 TTABVUE 13. We thus assume that the goods and services are related,
and therefore, as the Examining Attorney puts it, “the refusal of the claim of acquired
distinctiveness as to Class 16 rests on whether applicant has provided sufficient
evidence to show acquired distinctiveness as to the related services in Class 44.” Id.
We also observe that the line between online health care information and health care
information printed on paper is thin at best. Cf. In re JobDiva, Inc., 843 F.3d 936, 121
USPQ2d 1122, 1126 (Fed. Cir. 2016) (“We agree with the Board’s initial observation
that, with modern technology, the line between services and products sometimes
blurs . . . . [C]areful analysis is required to determine whether web-based offerings,
like those JobDiva provides, are products or services.”)
B. How Descriptive is the Involved Mark?
“Where a mark sits on a sliding scale of descriptiveness impacts the burden a
proposed registrant must bear with respect to its claim of acquired distinctiveness.”
Royal Crown, 127 USPQ2d at 1045. Indeed, “the applicant’s burden of showing
acquired distinctiveness increases with the level of descriptiveness; a more
descriptive term requires more evidence of secondary meaning.” In re
Serial No. 87308987
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Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005) (citing In
re Bongrain Intern. (Am.) Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed. Cir. 1990)).
Therefore, we “must first determine whether the proposed mark is highly descriptive
rather than merely descriptive.” Royal Crown, 127 USPQ2d at 1045.
We find that the proposed mark is highly descriptive. In fact, terms such as
FAMILYDOCTOR.ORG that describe the provider of goods or services are
themselves often found to be descriptive. For example, in In re The Chamber of
Commerce of the U.S., 675 F.3d 1297, 1301, 102 USPQ2d 1217 (Fed. Cir. 2012), the
Federal Circuit affirmed the Board’s finding that NATIONAL CHAMBER is merely
descriptive of “promoting the interests of businesspersons or industry on a national
level, or connecting local chambers of commerce through a nationwide network,”
because CHAMBER can refer to a chamber of commerce and chambers of commerce
typically offer those services. In fact, some of the applicant’s services were a “core
function” of chambers of commerce. Id. at 1221. See also In re Major League Umpires,
60 USPQ2d 1059 (TTAB 2001) (MAJOR LEAGUE UMPIRE merely descriptive of
clothing, face masks and chest protectors provided by a company owned and operated
by Major League Baseball umpires because it describes the provider and designer of
the goods); In re E.I. Kane, Inc., 221 USPQ 1203 (TTAB 1984) (OFFICE MOVERS,
INC. generic for moving services for offices); In re Career Employment Services, Inc.,
219 USPQ 951, 952 (TTAB 1983) (THE PROFESSIONAL HEALTHCARE PEOPLE
generic for providing temporary employment services for medical personnel because
the term refers to the applicant and its employees who place temporary workers); In
Serial No. 87308987
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re Old Boone Distillery Co., 172 USPQ 697, 698 (TTAB 1972) (DISTILLER’S LIGHT
merely descriptive of scotch whisky because it “conveys the information that
applicant’s product is a distiller’s light blended scotch whisky”). Furthermore, the
record reveals that it is common for healthcare providers, including doctors and
family doctors, to provide health care articles and information. Because the literal
element (FAMILYDOCTOR.ORG) of Applicant’s proposed mark is so highly
descriptive, and the proposed mark’s minimal stylization is not sufficiently distinctive
to “carry” the literal element,7 Applicant’s burden to show acquired distinctiveness is
“concomitantly high.” In re Steelbuilding, 75 USPQ2d at 1424.
C. Acquired Distinctiveness
In assessing whether Applicant has met its heavy burden of establishing acquired
distinctiveness, we consider any evidence bearing on: “(1) association of the
trade[mark] with a particular source by actual purchasers (typically measured by
customer surveys); (2) length, degree, and exclusivity of use; (3) amount and manner
of advertising; (4) amount of sales and number of customers; (5) intentional copying;
and (6) unsolicited media coverage of the product embodying the mark.” In re
Snowizard, Inc., 129 USPQ2d 1001, 1005 (TTAB 2018) (quoting Converse, Inc. v. Int’l
Trade Comm’n, 907 F.3d 1361, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018)). See also
Trademark Rule 2.41(a), 37 C.F.R. § 2.41(a).

7 Cf. In re Jackson Hole Ski Corp., 190 USPQ 175, 176 (TTAB 1976).
Serial No. 87308987
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1. Customer Surveys
Applicant did not introduce any direct evidence that purchasers associate the
proposed mark with a particular source. While Applicant refers to the PCMag list of
“Where Millennials Find Medical Advice” as a “survey,” 20 TTABVUE 2-3, it is not
the type of survey that is typically used and considered reliable for determining
whether a mark has acquired distinctiveness.
Rather, according to the PCMag article, health data management firm Harmony
Healthcare IT surveyed “2,000 millennials between the ages of 23 and 38” and found
“that many are foregoing doctor’s visits in favor of doing their own online research.”
January 21, 2020 Office Action response TSDR 33. There is no testimony,
documentary evidence or other type of evidence that would allow us to determine the
specific questions posed to the millennials questioned or their specific answers, much
less assess whether and to what extent those surveyed associate
“FAMILYDOCTOR.ORG” with a particular source. It is not clear why the survey
included several trademarks, such as WebMD and YouTube, and several descriptive
or generic terms, such as “news articles” and “health apps.”
In any event, of the seven marks and descriptive or generic terms listed,
Applicant’s proposed mark “FAMILYDOCTOR.ORG” placed sixth, with 14% of
respondents apparently indicating that they “find medical advice” at Applicant’s
“familydoctor.org” website. By way of comparison, WebMD tops the list at 82% and
“news articles” is in second place at 27%, both of which dwarf Applicant’s 14%, and
only EveryDay Health scored below Applicant’s site, and only slightly below, at 13%.
Serial No. 87308987
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This evidence is not particularly persuasive on the question of acquired
distinctiveness. It is not clear from the article or the list how millennials perceive the
term FAMILYDOCTOR.ORG. Moreover, even if it was, the universe of those
surveyed is underinclusive, because Applicant’s identified goods and services are not
limited to millennials or those between the ages of 23 and 38. Rather, they include
goods and services for anyone interested in health care information, which obviously
includes the entire population, perhaps especially the elderly, who may need more
health care information than younger consumers, but may also be less likely to rely
on the Internet for that information than millennials. In short, the evidence about
this “survey” creates more questions than it answers, and Applicant’s score of 14% is
underwhelming in any event, especially for such a highly descriptive mark.
2. Length, Degree and Exclusivity of Use
Applicant relies heavily on its use of the literal element of its involved mark since
1998. We agree that 23 years is a relatively long period of use, and is sometimes
enough to establish acquired distinctiveness. At the same time, however, we must
keep in mind that the literal element of the proposed mark (and the proposed mark
in its stylized form) is highly descriptive, which makes this evidence insufficient to
meet Applicant’s heavy burden. Mini Melts, Inc. v. Reckitt Benckiser LLC, 118
USPQ2d 1464, 1480 (TTAB 2018); In re Chevron Intellectual Prop. Grp. LLC, 96
USPQ2d 2026, 2030 (TTAB 2010) (“applicant’s 22 years of use of the design in
question is substantial but not necessarily conclusive or persuasive, considering the
nature of the subject matter sought to be registered”).
Serial No. 87308987
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More importantly, Applicant’s use of the term “family doctor” is by no means
exclusive. In fact, the term “family doctor” is commonly used by providers of health
care information and therefore widely known to consumers of health care
information. May 10, 2017 Office Action TSDR 13-18; July 11, 2018 Office Action
TSDR 7-16, 31-53. This is not surprising given the definitions of the term, which
indicate that family doctors not only treat or coordinate treatment of an exceedingly
wide range of conditions, but also treat or coordinate treatment for entire families.
Not only is Applicant’s use not exclusive, but the record establishes that many family
doctors and others use the term “family doctor” for health care-related information.
This weighs heavily against a finding of acquired distinctiveness. Levi Strauss & Co.
v. Genesco, Inc., 742 F.2d 1401, 222 USPQ 939, 940-41 (Fed. Cir. 1984) (“When the
record shows that purchasers are confronted with more than one (let alone numerous)
independent users of a term or device, an application for registration under Section
2(f) cannot be successful, for distinctiveness on which purchasers may rely is lacking
under such circumstances.”); see also, Racine Industries Inc. v. Bane-Clene Corp., 35
USPQ2d 1832, 1840 (TTAB 1994).
3. Amount and Manner of Advertising
Applicant alleges that it has “expended considerable resources over the years
promoting the FAMILYDOCTOR.ORG website,” but the only quantification of this
allegation is: “in just the last three years, [Applicant] has spent approximately
$88,000 in online advertising alone in order to promote the FAMILYDOCTOR.ORG
website on Google, Facebook and Twitter.” January 21, 2020 Office Action TSDR 14
(Henley Dec. ¶ 9). While this figure suggests that FAMILYDOCTOR.ORG promotes
Serial No. 87308987
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itself and the FAMILYDOCTOR.ORG website, at the same time it does not support
a finding of widespread consumer recognition or acquired distinctiveness given the
proposed mark’s high degree of descriptiveness.
Advertising expenses averaging less than $30,000 per year would not typically
result in widespread consumer recognition of a mark or the goods or services sold
thereunder, much less a highly descriptive mark. In fact, significantly higher
advertising expenditures have been found insufficient to establish acquired
distinctiveness. See, e.g., In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056
(Fed. Cir. 1999) ($2 million in annual advertising expenditures insufficient); Mini
Melts, 118 USPQ2d at 1480 ($22 million in advertising expenditures found
insufficient, pointing out that “proof of an expensive and successful advertising
campaign is not in itself enough to demonstrate acquired distinctiveness”).
4. Amount of Sales and Number of Customers
Over the past seven years, Applicant has earned $350,000 in sponsor advertising,
and it receives “in excess of $55,000 annually for licenses to content” from its website.
Id. at 13-14 (Henley Dec. ¶¶ 7, 8). Some of the licensed content is published in a
magazine displayed in an unspecified number of doctors’ offices. Id. at 14 (Henley
Dec. ¶ 8). Applicant’s “familydoctor.org” website attracts “an average of about 5.5
million monthly page views and 4 million monthly unique visitors.” Id. at 13 (Henley
Dec. ¶ 4).
These are not insignificant figures, and show that Applicant has had some success,
to the point that we can assume that at least the “familydoctor.org” domain name is
known to a number of relevant United States consumers. However, Applicant has not
Serial No. 87308987
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placed these figures in context, and therefore we cannot compare these figures to
those for other health care information websites or providers. Mini Melts, 118
USPQ2d at 1480 (“The probative value of this evidence is diminished by the fact that
the amount is just a raw number in the vast pharmaceutical industry, providing no
context showing Applicant’s market share and whether the stated amount of doses
sold is significant in the industry.”). Moreover, according to the PCMag “survey,”
more than five times as many millennials “find medical advice” on WebMD as
FAMILYDOCTOR.ORG, and even YouTube and Reddit are significantly more
popular among millennials looking for medical advice than FAMILYDOCTOR.ORG.
In short, while Applicant has established some success, it has not established that its
highly descriptive proposed mark has acquired distinctiveness.
5. Unsolicited Media Coverage8
In addition to the PCMag article, Applicant points to the Health Web Navigator
recommendation of the FAMILYDOCTOR.ORG website, and the Time and
“popsci.com” articles. This evidence also supports a finding that Applicant has been
somewhat successful. But it is not enough to establish the type of widespread
consumer recognition of the proposed highly descriptive mark which would support
Applicant’s Section 2(f) claim. For example, Applicant has not provided any
information about how many consumers have been exposed to these articles.

8 There is no evidence or allegation of intentional copying.
Serial No. 87308987
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III. Conclusion
Because the literal element of Applicant’s proposed mark is highly descriptive,
Applicant would have needed to prove widespread consumer exposure to and
recognition of FAMILYDOCTOR.ORG in order to establish acquired distinctiveness
under Section 2(f). Mini Melts, 118 USPQ2d at 1481 (“More evidence, especially in
the form of direct evidence from the relevant purchasing public, than what Applicant
has submitted would be necessary to show that its proposed [mark has] become
distinctive for its goods.”). Under these circumstances, Applicant’s evidence simply
falls short. Applicant has not established that the proposed mark’s literal element, or
the proposed mark in its entirety, has acquired distinctiveness.

Decision: The refusal to register Applicant’s proposed mark on the Principal
Register because it is merely descriptive under Section 2(e)(1) and has not acquired
distinctiveness under Section 2(f) of the Trademark Act is affirmed.