Cerebral Therapeutics, Inc.

Trademark Trial and Appeal Board

May 18, 2021

88442307 (T.T.A.B. May. 18, 2021)

Mailed: May 18, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Cerebral Therapeutics, Inc.
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Application Serial No. 88442307
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Erin Nichols Matkaiti of Mueting Raasch Group for Cerebral Therapeutics, Inc.

William H. Dawe, III, Trademark Examining Attorney, Law Office 108,
Kathryn E. Coward, Managing Attorney.
_____

Before Bergsman, Kuczma and Johnson, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Cerebral Therapeutics, Inc. (Applicant) seeks registration on the Principal
Register of the mark ICVRx, in standard character form, for the goods listed below:
Pharmaceutical preparations and substances for the
treatment of neurological diseases and disorders, in
International Class 5; and
Medical devices, namely, medical devices for the treatment
of neurological conditions, in International Class 10.1

1 Serial No. 88442307 filed on May 22, 2019, under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use the mark in
commerce.
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Serial No. 88442307

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The Examining Attorney refused to register Applicant’s mark under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that ICVRx when
used in connection with the applied for goods is merely descriptive.
By definition, the term RX is a well-known abbreviation for
the term PRESCRIPTION which refers to medication
prescribed by a doctor. To this highly descriptive term,
applicant added the term ICV which is well-known
abbreviation of the term intracerebroventricular. As used
by applicant, the term intracerebroventricular refers to
being within the ventricles of the brain. Thus, when the
individual components of the mark are considered in
relationship to the identified goods, they have descriptive
meaning, namely, prescription drugs/pharmaceutical
preparations and devices intended for
intrecerebroventricular use. (Internal citations omitted).2
Applicant contends, to the contrary, that ICVRx is suggestive, not merely
descriptive for the following reasons:
● The combination of ICV and Rx does not immediately convey knowledge about
the Applicant’s goods;
● The Examining Attorney failed to prove ICV is descriptive of
intracerebroventricular;
● ICV has multiple meanings; and
● “Applicant’s mark is no more descriptive than existing registered marks.”3

2 Examining Attorney’s Brief (11 TTABVUE 9).
3 Applicant’s Brief, pp. 5-6 (9 TTABVUE 6-7).
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I. Preliminary Issue
At the outset, we are compelled to make an observation regarding the prosecution
of this application by the Examining Attorney. The Examining Attorney submitted
the same evidence multiple times. For example, the Examining Attorney submitted:
● Duplicate dictionary definitions in the August 8, 2019, April 29, 2020 Office
Actions and November 25, 2020 Denial of the Request for Reconsideration;
● Duplicate Wiktionary.com definitions in the April 8, 2019 and April 29, 2020
Office Actions;
● Duplicate submissions from the AF Acronym Finder in the August 8, 2019 and
April 29, 2020 Office Actions;
● Duplicate Wikipedia.org entries for “intracerebroventricular injection” in the
August 8, 2019 and April 29, 2020 Office Actions; and
● Duplicate copies of “Human intracerebroventricular (ICV) injection of
autologous, non-engineered, adipose-derived stromal vascular fraction (ADSVF) for
neurodegenerative disorders: results of a 3-year phase 1 study of 113 injections in 31
patients” in the April 29, 2020 Office Action and twice in the November 25, 2020
Denial of the Request for Reconsideration.4
Suffice it to say, the probative value of the documentary evidence does not become
more probative with repetition.

4 When appropriate, the Examining Attorney may explain that he introduced a second
excerpt from a website previously made of record because additional probative evidence was
found in a later search that was not available initially.
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II. Whether ICVRx is merely descriptive.
In the absence of acquired distinctiveness, Section 2(e)(1) of the Trademark Act
precludes registration of a mark on the Principal Register that, when used in
connection with an applicant’s goods, is merely descriptive of them. 15 U.S.C.
§ 1052(e)(1). “A mark is merely descriptive if it immediately conveys information
concerning a feature, quality, or characteristic of the goods or services for which
registration is sought.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965,
128 USPQ2d 1370, 1373 (Fed. Cir. 2018) (quoting In re N.C. Lottery, 866 F.3d 1363,
123 USPQ2d 1707, 1709 (Fed. Cir. 2017)).
We “must consider the mark as a whole and do so in the context of the goods
or services at issue.” DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd.,
695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (emphasis added); In re
Calphalon Corp., 122 USPQ2d 1153, 1162 (TTAB 2017). “Whether consumers could
guess what the product is from consideration of the mark alone is not the test.” In re
Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). Rather, “the question is
whether someone who knows what the goods and services are will understand the
mark to convey information about them.” DuoProSS, 103 USPQ2d at 1757 (quoting
In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)).
This applies to compound marks as well.
In considering a mark as a whole, the Board may weigh the
individual components of the mark to determine the overall
impression or the descriptiveness of the mark and its
various components. … [I]f ... two portions individually are
merely descriptive of an aspect of appellant’s goods, the
PTO must also determine whether the mark as a whole,
i.e., the combination of the individual parts, conveys any
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distinctive source-identifying impression contrary to the
descriptiveness of the individual parts.
In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004).
Thus, the issue before us is whether the mark ICVRx, in its entirety, is merely
descriptive when used in connection with pharmaceutical preparations and
substances and medical devices for treating neurological diseases, conditions, and
disorders.5
The AF Acronym Finder website (acronymfinder.com) and the AllAcronyms
website (allacronyms.com) define ICV as “intracerebroventricular.”6
Wiktionary.com defines “intracerebronventricular” as “within the ventricles of the
brain.”7 Merriam-Webster Dictionary (merriam-webster.com) (accessed May 17,
2021) defines “ventricle” as “a cavity or a bodily part or organ: such as … any system
of communicating cavities in the brain that are continuous with the central canal of
the spinal cord.”

5 Merriam-Webster Dictionary (merriam-webster.com) (accessed May 17, 2021) defines
“neurology” as “a branch of medicine concerned especially with the structure, function, and
diseases of the nervous system.”
The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG,
128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378
(TTAB 2006).
6 August 8, 2019 Office Action (TSDR 5) and November 25, 2020 Denial of the Request for
Reconsideration (TSDR 38).
References to the examination record are to the USPTO Trademark Status and Document
Retrieval system (TSDR) by page number in the downloadable .pdf format.
7 April 29, 2020 Office Action (TSDR 129).
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Wikipedia.org (based on The Free Encyclopedia) defines an
“intracerebroventricular injection” as follows:
Intracerebroventricular injection (also called ICV injection,
i.c.v. injection, or sometimes ICV) is an invasive technique
of substances directly into the cerebrospinal fluid in the
cerebral ventricles in order to bypass the blood brain
barrier. … It can also be used in human[s] in cases of
neurodegenerative disorders like spinal muscular atrophy
(SMA), or administering chemotherapy in gliomas as well
as delivering neurotrophic factors to CNS. It can be
contrasted with intraperitoneal injection as an alternative
choice of route of administration with differing
pharmacokinetic and pharmacodynamics effects.8
Numerous third-party websites, including Applicant’s website, refer to the term
“intracerebronventricular” by the initials ICV. For example,
● Applicant’s website (cerebraltherapeutics.com):
Led by experts in the fields of Brain Drug and Device
Development, Cerebral Therapeutics™ address chronic
neurological diseases using novel and proprietary drugs
administered directly to the brain.
___
By bypassing the blood-brain barrier, Cerebral’s therapies
are designed to maximize medication efficacy while greatly
reducing systemic exposure and enhancing drug regimen
compliance.9
___
Cerebral Therapeutics™ initial clinical program uses a
specialized implanted, refillable catheter and pump system
to deliver a continuous intracerebroventricular (ICV)
dose of a proprietary formulation of the antiepileptic drug
valproic acid, called CT-010, for which Cerebral

8 August 8, 2019 Office Action (TSDR 8).
9 April 7, 2020 Response to Office Action (TSDR 59).
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Therapeutics™ has an exclusive license agreement from
the University of Colorado.10 (Emphasis added).
● “Best practices for the use of intracerebroventricular drug delivery devices,”
Science Direct website (sciencedirect.com):
For decades, intracerebroventricular (ICV), or
intraventricular, devices have been used in the treatment
of a broad range of pediatric and adult nervous system
(CNS) disorders. Due to the limited permeability of the
blood brain barrier, diseases with CNS involvement may
require direct administration of drugs into the brain to
achieve full therapeutic effect.
___
ICV devices allow administration of drugs either directly
into the CSF [cerebrospinal fluid] or by interstitial infusion
(with convection).11
● “Study to Assess Intracerebroventricular (ICV) Delivery of CT-010 in Subjects
With Focal Seizures, With Temporal Lobe Onset With or Without Secondary
Generalization,” ClinicalTrials.gov, a report on a clinical trial sponsored by
Applicant.12 “In this study, patients with medically refractory focal epilepsy will be
treated with intracerebronventicular (ICV) administration of CT-010.”13
● “Intracerebroventricular Delivery as a Safe, Long-Term Route of Drug
Administration,” Pediatric Neurology (sciencedirect.com)
Intrathecal delivery methods enable the administration of
soluble therapeutics directly into the central nervous
system (CNS). As an intrathecal delivery method the
intracerebroventricular (ICV) route of administration

10 April 7, 2020 Response to Office Action (TSDR 61).
11 April 29, 2020 Office Action (TSDR 12-13).
12 April 29, 2020 Office Action (TSDR 30).
13 April 29, 2020 Office Action TSDR 31).
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instills therapy into the cerebral ventricle via an ICV port
implanted under the scalp. This route of administration,
also referred to as intraventricular administration, has
been used for several decades to provide treatments for
pediatric and adult patients who suffer from a broad range
of diseases, including infectious meningitis, intractable
pain, and various types of cancer.14
● “Human intracerebroventricular (ICV) injection of autologous, non-engineered,
adipose-derived stromal vascular fraction (ADSVF) for neurodegenerative disorders:
results of a 3-year phase 1 study of 113 injections in 31 patients,” PubMed.gov.15
The American Heritage Dictionary of the English Language (5th ed. 2016) defines
“Rx” as “a prescription for medicine or a medical appliance” and as “a remedy, cure,
or solution for a disorder or problem.”16
The MacMillan Dictionary (macmillandictionary.com) defines “prescription” as “a
piece of paper that a doctor gives you that says what type of medication you need.”17
When used in connection with the applied-for goods, the initials ICV refer to the
term “intracerebronventricular” and “Rx” refers to a prescription, a doctor’s order, or
a solution for a medical problem.
When used in connection with the applied-for goods, the letters ICVRx retain their
descriptive meaning and the composite mark means a prescription for an

14 April 29, 2020 Office Action (TSDR 38).
15 April 29, 2020 Office Action (TSDR 76).
16 TheFreeDictionary.com attached to the April 29, 2020 Office Action (TSDR 122). See also
Merriam-Webster Dictionary (merriam-webster.com) defining “Rx” as “a doctor’s
prescription” and “something resembling a doctor’s prescription in being an advisable or
corrective of action.” August 8, 2019 Office Action (TSDR 9).
17 April 29, 2020 Office Action (TSDR 118).
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“intracerebronventricular” device or pharmaceutical or an “intracerebronventricular”
solution to treat neurological disorders and, thus, ICVRx is merely descriptive.
Applicant contends that ICVRx is not merely descriptive because the “average
purchaser” would not immediately understand the initials as conveying any
information regarding a quality, characteristic, function, feature or purpose of the
goods.18 First, we note that Applicant did not identify the average purchaser. Second,
based on the evidentiary submissions discussed above, the “average purchaser” of
Applicant’s goods is someone with extensive medical training. Finally, the authors of
the above-noted documentary evidence refer to ICV as a shortened form of
“intracerebronventricular” and so will the readers of the documentary evidence .
Applicant also contends that the Examining Attorney has improperly dissected
the mark into its constituent terms ICV and Rx and has not considered the mark
ICVRx in its entirety.19 As noted above, each term ICV and Rx when combined in the
composite mark ICVRx retain their descriptive meaning and directly convey to
someone with knowledge about the applied-for goods that the product is an
“intracerebronventricular” solution to a health problem either as a pharmaceutical or
as a medical device.
Applicant asserts that the above-noted cited articles “demonstrate that ICV is not
well known for describing the term ‘intracerebronventricular’ but rather is an ad hoc

18 Applicant’s Brief, pp. 6-7 (9 TTABVUE 7-8).
19 Applicant’s Brief, p. 7 (9 TTABVUE 8).
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stand-in for a long and unwieldy term.”20 The above-noted articles show use ICV as a
stand-in for “intracerebronventricular” precisely because it is a long and unwieldy
term.
Applicant further asserts that if ICV were a well-known abbreviation for
“intracerebronventricular,” authors would have no need to define it in the articles
(e.g., intracerebronventricular (ICV)). However, the abbreviation ICV does not have
to be well-known to have a descriptive meaning when, as noted above, people familiar
with intracerebronventricular pharmaceuticals and devices shorten
intracerebronventricular to ICV because intracerebronventricular is a long and
unwieldy term. In this regard, the above-noted evidence demonstrates that ICV is the
accepted abbreviation for “intracerebronventricular.”
Applicant argues that even when viewed in connection with the applied for goods,
the term ICV in the mark ICVRx has too many other relevant meanings to
immediately convey a quality, characteristic, feature or function of the goods.21
For example, Acronym Finder lists meanings that include:
“Intracranial Vault,” “Ileocecal Valve,” “intracellular
volume,” “International Certificate of Vaccination” and
“Interactive Computer Vision,” among others. Another
reference cited by the Examining Attorney in the Office
Actions, the website All Acronyms, similarly lists multiple
potential meanings of ICV in the same context, such as, for
example: “Ileocecal Valve,” “Internal Cerebral Vein,”
“Intracellular Volume,” “Inferior Caval Vein” and
“Influenza C Virus.”22

20 Applicant’s Brief, p. 8 (9 TTABVUE 9).
21 Applicant’s Brief, p. 10 (9 TTABVUE 11).
22 Applicant’s Brief, p. 11 (9 TTABVUE 12).
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The various meanings of ICV in the Acronym Finder and All Acronym websites do
not ipso facto mean that ICVRx is not merely descriptive of the applied for goods.
Applicant did not submit any evidence showing the alternative use of ICV to
represent the other meanings of ICV or the meaning of those various other terms.
Thus, it is not clear what commercial impression ICVRx may engender if, and when,
it is used in connection with an intracranial vault, ileocecal valve, intracellular
volume, etc. Accordingly, the results derived from the Acronym Finder and All
Acronym websites do not rebut the above-noted evidence demonstrating that ICV is
an abbreviation for “intracerebronventricular.”
As noted above, we analyze whether a term is merely descriptive in relation to the
goods for which Applicant seeks registration: in this case, pharmaceutical
preparations and substances and medical devices for treating neurological diseases,
conditions, and disorders. The fact that ICVRx may have a different meaning when
used in a different context (e.g., in connection with intracranial vault, ileocecal valve,
intracellular volume, etc.) is not controlling. See In re RiseSmart Inc., 104 USPQ2d
1931, 1933 (TTAB 2012); In re Chopper Indus., 222 USPQ 258, 259 (TTAB 1984); In
re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979); In re Champion Int’l Corp.,
183 USPQ 318, 320 (TTAB 1974). If a term has a primary significance that is
descriptive in relation to at least one of the products in the description of goods and
does not create any double entendre or incongruity, then the term is merely
descriptive. See, e.g., In re Calphalon Corp., 122 USPQ2d 1153, 1164 (TTAB 2017)
(finding nothing incongruous about the use of the word sharpen (or its phonetic
Serial No. 88442307

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equivalent SHARPIN) to describe the function of knife blocks with built-in
sharpeners that automatically sharpen knives).
Finally, Applicant argues that ICVRx is no more descriptive than Applicant’s
registered mark CVRX, in typed drawing form, for “medical devices, namely,
electrical stimulators for the treatment of cardiovascular disease,” in International
Class 10.23 Applicant’s prior registration does not rebut our finding that ICVRx when
used in connection with the applied-for goods is merely descriptive. We must decide
each case on its own merits. In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001) (citing In re Owens-Corning Fiberglas Corp., 774 F.2d 1116,
227 USPQ 417, 424 (Fed. Cir. 1985) (“Even if some prior registrations had some
characteristics similar to Nett Designs’ application, the PTO’s allowance of such
registrations does not bind the Board of this court.”).
While the USPTO strives to achieve a uniform standard for assessing
registrability of marks, we must assess each mark on the record of public perception
submitted with the application. Applicant’s referral to its prior registered mark has
little persuasive value especially because Applicant did not submit the prosecution
history of that registration for our review. Nett Designs, 57 USPQ2d 1566.
Decision: We affirm the Section 2(e)(1) refusal to register Applicant’s mark
ICVRx.

23 Registration No. 2923788 registered February 1, 2005; renewed, attached to the October 6,
2019 Office Action (TSDR 7).