Cardiac Pacemakers, Inc.

Trademark Trial and Appeal Board

Apr 20, 2010

No. 76690642 (T.T.A.B. Apr. 20, 2010)

Mailed: April 20, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cardiac Pacemakers, Inc.
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Serial No. 76690642
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James T. Nikolai of Nikolai & Mersereau, P.A. for Cardiac
Pacemakers, Inc.

Tina H. Mai, Trademark Examining Attorney, Law Office 108
(Andrew Lawrence, Managing Attorney).
_______

Before Seeherman, Cataldo and Ritchie,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Cardiac Pacemakers, Inc. has applied to register on
the Principal Register the mark RYTHMIQ in standard
characters for goods identified as a “feature of an
implantable heart pacemaker or implantable cardiac
defibrillator that eliminates unnecessary ventricular
pacing” in International Class 10.1

1 Application Serial No. 76690642 was filed on June 18, 2008,
based on applicant’s assertion of its bona fide intent to use the
mark in commerce on the recited goods.

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 76690642
2
The trademark examining attorney has refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), on the ground that applicant’s mark is
merely descriptive of a feature or quality of applicant’s
goods.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed main briefs and
applicant filed a reply brief.
Evidentiary Issues
Before turning to the substantive ground for refusal,
we note that the examining attorney has submitted with her
brief the following dictionary definitions:
rhythmic: (1) marked by or moving in pronounced
rhythm, (2) of, relating to, or involving rhythm;2 and
rhythm: movement, fluctuation, or variation marked by
the regular recurrence or natural flow of related elements.3
In addition, the examining attorney submitted with her
brief excerpts from encyclopedia entries for the following
terms:
pacemaker: the pacing device, an electric generator,
remains outside the body and produces regular pulses of

2 Merriam-Webster Online Dictionary www.merriam-webster.com.
3 Id.
Ser No. 76690642
3
electric charge to maintain the heartbeat;4 and
defibrillation: the administration of electric shocks
to the heart in order to reset normal heart rhythm in
persons who are experiencing cardiac arrest or whose heart
function is endangered because of severe arrhythmia
(abnormality of heart rhythm).5
We hereby grant the examining attorney’s request that
we take judicial notice of these definitions and
encyclopedia entries. It is settled that the Board may
take judicial notice of, inter alia, dictionary
definitions, including online dictionaries which exist in
printed format, and encyclopedia entries. See University
of Notre Dame du Lac v. J. C. Gourmet Food Imports Co.,
Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983). See also In re
CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB
2002); and In re Broyhill Furniture Industries Inc., 60
USPQ2d 1511, 1514 n.5 (TTAB 2001). Accordingly,
applicant’s request in its reply brief that we strike the
above definitions and entries is denied.
We further note that in her brief the examining
attorney requests to withdraw from the record the articles

4 Encylopædia Britannica eb.com www.britannica.com.
5 Id.
Ser No. 76690642
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contained on pages 2-16 and 20-22 of the exhibits to her
September 8, 2009 denial of applicant’s July 23, 2009
request for reconsideration. In its reply brief, applicant
moves to strike the same articles on the ground of
relevance. Because the examining attorney and applicant
have essentially, by their respective requests, stipulated
that these articles be withdrawn from the record, we have
given them no consideration.
Issue on Appeal
As noted above, the issue on appeal in this case is
whether applicant’s mark, RYTHMIQ, merely describes a
function, feature or characteristic of the goods recited in
the involved application. In support of her refusal to
register, the examining attorney has made of record the
following articles retrieved from the Internet in which the
term “rhythmic” appears in connection with pacemakers and
defibrillators:
Putting rat heart cells in a Petri dish causes
them under the right conditions to grow into a
network of cells which exhibit the formation of
one or more pacemakers which regulate the
contractions of muscle cells in the network.
Pacemakers, like bandleaders conducting the
musicians in their group, generate rhythmic
signals that control the activities of biological
systems. In a human heart, the pacemaker is
composed of roughly 5000 cells in a sinoatrial
node, located in the right roof of the atrium. …6

6 www.aip.org
Ser No. 76690642
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In the human heart, one cell – the pacemaker cell
– beats faster or slower to include a rhythmic
heartbeat that varies to increase or decrease the
…7

Artificial Pacemakers
The pulse generator of the artificial
pacemaker corrects for a defective sinus node or
conduction pathway by emitting rhythmic
electrical impulses similar to those of the sinus
node. …
Artificial pacemaker - corrects for a defective
sinus node (see “sinus node” entry) or conduction
pathway by emitting a series of rhythmic
electrical discharges to control the heartbeat …8

A defibrillator is a medical device used to stop
the heart in hope that [the] heart will start
again with rhythmic contra[c]tions. It consists
of a central unit and a set of two electrodes.
The central unit provides a source of power and
control. The two electrodes are placed directly
on or in the body of [the] patient. The
electrodes give electric shocks to [the] body.
This technique is used to treat ventricular
tachycardia. The electric shock is used to
induce the heart to return [to] rhythmic
contractions using its own natural pacemaker
cells…9

An implantable cardioverter defibrillator (AICD)
is a device that is implanted in the chest to
monitor for and, if necessary, correct episodes
of rapid heartbeat. … When an AICD senses a fast
but rhythmic heartbeat (tachycardia), it releases
a series of precisely timed low-intensity
electrical pulses that gently interrupt the heart
and allow it to return to a slower pace. …10

7 www.bio-medicine.org
8 www.fda.gov
9 www.articlesbase.com
10 www.heartonline.org
Ser No. 76690642
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The examining attorney has further made of record the
following dictionary definition of pacing: to set or
regulate the pace of;11 and the following encyclopedia
entries for pacemaker: source of rhythmic electrical
impulses that trigger heart contractions. In the heart’s
electrical system, impulses generated at a natural
pacemaker are conducted to the atria and ventricles;12 and
device used to stimulate a rhythmic heartbeat by means of
electrical impulses.13
Applicant, for its part, argues that its RHYTHMIQ mark
suggests, rather than merely describes, its goods or a
feature thereof. In support of its position, applicant
submitted with its July 23, 2009 request for
reconsideration the declaration of its Group Marketing
Manager, Product Marketing, Nicole Czechowski. Ms.
Czechowski’s declaration provides information regarding the
nature of cardiac pacemakers and defibrillators consistent
with the information submitted by the examining attorney
and discussed above. Ms. Czechowski further declares that

Implantable heart pacemakers are implanted when
the patient’s heart is not beating fast enough,

11 www.merriam-webster.com
12 Brittanica.com, accessed via www.answers.com.
13 Columbia Encyclopedia, accessed via www.answers.com.
Ser No. 76690642
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when there is a block in the heart’s electrical
conduction system, or to improve synchronization
of the lower chambers of the heart. … Implantable
cardiac defibrillators are programmed to detect
ventricular fibrillation of tachycardia and
provide lifesaving correction by delivering an
electrical jolt to the heart. Some implantable
devices serve both as a pacemaker and as a
defibrillator.14

In addition, she declared that
Applicant has developed a feature permitting the
device to vary operating modalities in response
to a patient’s conduction patterns to eliminate
unnecessary ventricular pacing. This is the
feature applicant intends to offer under the
RHYTHMIQ mark. This feature permits the
physician to elect a form of pacing referred to
as AAI pacing with VVI pacing as a backup. When
this form of pacing is employed, the device
provides pulses to the atrium of the heart unless
inhibited by sensed atrial activity. No pacing
pulses are provided to the ventricles in this
mode unless the device fails to sense electrical
activity in the ventricle. The ventricles will
almost always contract on their own in this mode
if normal conduction is present. However, if
normal conduction is not present, the applicant’s
RHYTHMIQ feature will cause the device to change
to a conventional DDD pacing mode. In the DDD
pacing mode, atrial-ventricular sequential anti-
bradycardia pacing inhibited by sensing in either
chamber is performed. Ventricular pacing is
triggered after a delay by sensing in the atrium
after a ventricular event. The device reverts
back to the AAI mode if and when normal
conduction in the heart is restored and detected
by the device.15

Ms. Czechowski further declared that “virtually all of

14 Czechowski declaration, paras. 9, 10.
15 Czechowski declaration, para. 12.
Ser No. 76690642
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applicant’s products are sold to electrophysiologists,”16 a
subspecialty of cardiology.17
It is well settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality, feature or
characteristic thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. See Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052. See also In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
It is not necessary that a term describe all of the
properties or functions of the goods and/or services in
order for it to be considered to be merely descriptive
thereof; rather, it is sufficient if the term describes a
significant attribute or feature about them. Moreover,
whether a term is merely descriptive is determined not in
the abstract, but in relation to the goods and/or services
for which registration is sought. See In re Bright-Crest,
Ltd., 204 USPQ 591 (TTAB 1979). Thus, “[w]hether consumers
could guess what the product is from consideration of the
mark alone is not the test.” In re American Greetings

16 Czechowski declaration, para. 14.
17 Id.
Ser No. 76690642
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Corp., 226 USPQ 365 (TTAB 1985).
We begin our analysis by observing that applicant
spells the term “rhythmic” in its RHYTHMIQ mark with a “Q”
rather than the traditional letter “C” for a last letter
thereof. This is not a significant difference. Fleetwood
Co. v. Mende, 298 F.2d 797, 132 USPQ 458, 460 (CCPA 1962)
(“TINTZ [is] a phonetic spelling of ‘tints’”). RHYTHMIQ
and “rhythmic” would be pronounced identically and there is
little difference in their appearance. A slight
misspelling does not convert an otherwise descriptive term
into a suggestive one. In re Quik-Print Copy Shops, 616
F.2d 523, 205 USPQ 505, 507 n.9 (CCPA 1980) (QUIK-PRINT
held descriptive; “There is no legally significant
difference here between ‘quik’ and ‘quick’”).
Turning then to the evidence made of record by the
examining attorney, we find that the evidence discussed
above supports a finding that, as applied to applicant’s
goods, the term RHYTHMIQ would immediately describe,
without conjecture or speculation, a significant
characteristic or feature of such goods. As noted above,
applicant’s goods are identified as a “feature of an
implantable heart pacemaker or implantable cardiac
defibrillator that eliminates unnecessary ventricular
pacing.” The above dictionary definitions and encyclopedia
Ser No. 76690642
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entries support a finding that a pacemaker is a source of
rhythmic electrical impulses that trigger heart
contractions or a device used to stimulate a rhythmic
heartbeat; and that defibrillation is the administration of
electric shocks to the heart in order to reset a normal,
rhythmic heartbeat. Thus, as defined, RHYTHMIQ merely
describes a feature or characteristic of pacemakers and
defibrillators, namely, that they stimulate or reset a
normal, rhythmic heartbeat.
In addition, the internet articles submitted by the
examining attorney establish that pacemakers are understood
to generate or emit rhythmic electrical impulses and that
defibrillators restore rhythmic contractions to the heart.
As such, this evidence supports a finding that prospective
users of applicant’s goods, identified by applicant as
electrophysiologists, are accustomed to encountering the
term RHYTHMIQ used to describe the types of impulses
generated by applicant’s pacemakers and the heart
contractions restored by its defibrillators. Material
obtained from the internet is acceptable in ex parte
proceedings as evidence of potential exposure to a term by
the relevant public. See In re Fitch IBCA, Inc., 64 USPQ2d
1058 (TTAB 2002). Finally, applicant’s declarant states
that the feature of its goods identified by the RHYTHMIQ
Ser No. 76690642
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mark provides electrical pacing pulses to the atrium of the
heart unless no electrical activity is present in the
ventricles. As defined above, pacing means to set or
regulate the pace of. As such, applicant’s goods provide
rhythmic pulses to the atria of the heart, and to the
ventricles if necessary, in order to set or regulate the
pace of the heartbeat.
We are not persuaded by applicant’s argument that its
mark is not merely descriptive because the evidence made of
record by the examining attorney fails to show use of
RHYTHMIQ to describe the feature of its goods “which
eliminates unnecessary ventricular pacing.”18 As noted
above, in order to find a mark merely descriptive it is not
necessary that it describe every feature of the goods. In
her declaration Ms. Czechowski indicates that the feature
of applicant’s goods identified by the RHYTHMIQ mark
permits a pacemaker or defibrillator to provide pacing
pulses to the atrium of the heart with ventricular pacing
as a backup as needed. The purpose of such pacing is to
provide or restore rhythmic pacing to the heart. The
record evidence demonstrates that RHYTHMIQ merely describes
this feature.

18 Brief, p. 10.

Ser No. 76690642
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Nor are we persuaded that the mark is not merely
descriptive because applicant’s competitors assertedly
utilize terms other than “rhythmic” to describe such
goods.19 It is well established that even if an applicant
is the first or only user of the term RHYTMIQ in connection
with the identified goods, this does not entitle an
applicant to the registration thereof where, as here, the
term has been shown to immediately convey only a merely
descriptive significance in the context of applicant’s
goods. See, e.g., In re National Shooting Sports
Foundation, Inc., 219 USPQ 1018, 1020 (TTAB 1983); and In
re Mark A. Gould, M.D., 173 USPQ 243, 245 (TTAB 1972).
Neither are we persuaded that because “rhythmic” has
other meanings in relation to other goods, the mark
RHYTHMIQ is not merely descriptive of applicant’s goods.
As discussed above, the determination of whether a mark is
merely descriptive is considered in relation to the goods
recited in the application at issue, not in the abstract.
In re Abcor Dev. Corp., supra. See also In re Polo Int’l
Inc., 51 USPQ2d 1061 (TTAB 1999) (finding DOC in DOCCONTROL
would be understood to refer to the “documents” managed by
applicant’s software, not “doctor” as shown in dictionary
definition); and In re Digital Research Inc., 4 USPQ2d 1242

19 Czechowski declaration, para. 13, 21.
Ser No. 76690642
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(TTAB 1987) (finding CONCURRENT PC-DOS merely descriptive
of “computer programs recorded on disk” where relevant
trade used the denomination “concurrent” as a descriptor of
a particular type of operating system). “Whether consumers
could guess what the product is from consideration of the
mark alone is not the test.” In re Am. Greetings Corp.,
supra.
Finally, we are not persuaded by the opinion of
applicant’s declarant Ms. Czechowski regarding perception
of the RHYTHMIQ mark by its intended consumers, namely,
electrophysiologists. See In re Hester Industries, Inc.,
230 USPQ 797, 798 (TTAB 1986) (“we are not bound by the
applicant’s conclusions on [descriptiveness] any more than
we are by the Examining Attorney’s”). In addition, the
record does not contain any evidence or declarations from
electrophysiologists regarding their perception of the
applied-for mark, and we do not consider Ms. Czechowski’s
statements regarding such perception to be probative of
this question.
Accordingly, we find that applicant’s mark is merely
descriptive as contemplated by Section 2(e)(1) of the Act.
Decision: The refusal to register is affirmed.