Genetic Testing Institute, Inc.

Trademark Trial and Appeal Board

Sep 24, 2008

No. 77129308 (T.T.A.B. Sep. 24, 2008)

Mailed: September 24, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Genetic Testing Institute, Inc.
________

Serial No. 77129308
_______

Mark K. Johnson, Esq. for Genetic Testing Institute, Inc.

Christine Blomquist,1 Trademark Examining Attorney, Law
Office 104 (Chris Doninger, Managing Attorney).
_______

Before Rogers, Zervas and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Genetic Testing Institute, Inc. has applied to
register on the Principal Register the mark PF4 IGG in
standard characters for “diagnostic reagents for assisting
in identifying IgG antibodies to an antigen comprising PF4
and heparin; diagnostic test kits comprised of medical
diagnostic reagents and assays for testing body fluids for

1 The above application originally was examined by another
examining attorney, but subsequently was reassigned to the
attorney whose name is shown to prepare the appeal brief.
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 77129308
2
assisting in identifying IgG antibodies to an antigen
comprising PF4 and heparin” in International Class 5.2
The trademark examining attorney has refused
registration under Section 2(e)(1) of the Trademark Act 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 briefs on the
issue under appeal.
Applicant contends that its proposed mark does not
describe its goods because the mark “can be used to
describe numerous potential scientific goods such as
pharmaceuticals, chemical laboratory products, etc.”
(brief, p. 2). Applicant further contends that its goods
are intended to be used by “a scientist or medical
practitioner wanting to diagnose a specific type of
thrombocytopenia” (brief, p. 3). Applicant argues:
IgG is a human antibody that is found in the form
of IgG 1, IgG 2, IgG 3 and IgG 4. There are no
IgG antibodies. Applicant’s kit detects only IgG
2. If a person having knowledge in the
diagnostic field were asked if a kit called PF4
IgG detected IgG 2 antibodies rather than IgG 4
antibodies, they would not know because the name
does not describe the type of antibody detection.
(brief, p. 2.)

2 Application Serial No. 77129308 was filed on March 13, 2007,
based on applicant’s assertion of its bona fide intent to use the
mark in commerce on the recited goods.
Ser No. 77129308
3
Applicant argues in addition that “the mark does not even
describe if an IgG is detected or if a PF4 is intended to
be detected.” (Id.)
The examining attorney maintains that the mark merely
describes a feature or quality of the goods. In support of
the refusal, the examining attorney has made of record
dictionary definitions of IgG and PF4. According to these
definitions, IgG is defined as follows:
a class of immunoglobulins including the most
common antibodies circulating in the blood that
facilitate the phagocytic destruction of
microorganisms foreign to the body, that bind to
and activate complement, and that are the only
immunoglobulins to cross over the placenta from
mother to fetus; 2. an antibody of the class IgG.3

IgG further is defined as follows:
immunoglobulin class G. This antibody accounts
for three quarters of the immunoglobulins in the
blood of healthy people. It is widely
distributed in the tissues and is the only
immunoglobulin class that passes through the
placenta to the fetus. It is concerned with
protection against a wide range of infecting
organisms. Note that the term gamma globulin
refers to the whole class of immunoglobulins, not
simply to IgG.4

PF4 is defined as follows: “platelet factor 4.”5
Platelet factor 4 is defined as follows:

3 Merriam-Webster OnLine Dictionary, 2006-2007.
4 Collins Dictionary of Medicine, retrieved from
www.xreferplus.com.
5 Current Med Talk A Dictionary of Medical Terms, Slang & Jargon,
1994.
Ser No. 77129308
4
A platelet-derived heparin-binding protein
present in alpha granules and secreted therefrom
during platelet aggregation as a high molecular
weight tetramer associated with chondroitin
sulfate; PF4 is involved in immune modulation,
chemotaxis and inhibition of bone resorbtion and
angiogenesis, and with heparin, is an antigenic
target for the IgG and IgM antibodies formed in
heparin-induced thrombocytopenia.6

We hereby take judicial notice of the following definition
of thrombocytopenia: “an abnormal decrease in the number
of platelets in circulatory blood.”7
The examining attorney has further made of record the
following articles retrieved from Internet webpages:

Heparin–induced thrombocytopenia (HIT) associated
with severe thrombotic events is a well-
recognized complication of heparin therapy. … An
immunological mechanism has been emphasized to be
involved in the development of HIT and
thrombosis. It has been proposed that heparin
complexed to platelet factor 4 (PF4) is a target
for IgG antibodies. The immune complexes
generated consist of heparin, PF4 and IgG, bind
to circulating platelets via the Fc receptor and
induce a cycle of platelet activation and
consumption.
(http://proquest.urni.com)

Heparin-induced thrombocytopenia (HIT) is an
immune-mediated disorder caused by IgG antibodies
that bind to platelet factor 4 (PF4). The PF4

6 Id.
7 The American Heritage Dictionary of the English Language, 4th
ed. 2006. The Board may take judicial notice of dictionary
definitions, including online dictionaries which exist in printed
format. See In re CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791
n.3 (TTAB 2002). See also 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).
Ser No. 77129308
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becomes immunogenic when it binds to heparin 1-3.
Multimolecular complexes of Heparin, PF4, and IgG
form on platelet surfaces and the occupancy of
the platelet Fc receptors by HIT-IgG results in
platelet activation. …
(http://proquest.urni.com).

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
Ser No. 77129308
6
Corp., 226 USPQ 365 (TTAB 1985).
In the instant case, the evidence made of record by
the examining attorney supports a finding that, as applied
to applicant’s goods, the term PF4 IGG would immediately
describe, without conjecture or speculation, a significant
characteristic or feature of such goods. Specifically, the
dictionary definitions of record support a finding that IGG
is a common class of antibody, and PF4 is platelet factor
4, a protein that binds with IgG antibodies during an
abnormal decrease in the number of platelets in circulatory
blood induced by heparin. Thus, as defined, PF4 IGG merely
describes goods that identify platelet factor 4 bound to
IgG antibodies. Applicant’s “diagnostic reagents for
assisting in identifying IgG antibodies to an antigen
comprising PF4 and heparin; diagnostic test kits comprised
of medical diagnostic reagents and assays for testing body
fluids for assisting in identifying IgG antibodies to an
antigen comprising PF4 and heparin” appear to be intended
to perform this function. Thus, as defined, PF4 IGG merely
describes a central function, feature or characteristic of
the recited goods.
While a combination of descriptive terms may be
registrable if the composite creates a unitary mark with a
separate, nondescriptive meaning, In re Colonial Stores,
Ser No. 77129308
7
Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968), the mere
combination of descriptive words does not necessarily
create a nondescriptive word or phrase. See In re
Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB
1988). If each component retains its descriptive
significance in relation to the goods or services, the
combination results in a composite that is itself
descriptive. See In re Oppedahl & Larson LLP, 373 F.3d
1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004). Based upon
the evidence of record, we find that PF4 IGG immediately
describes a feature or characteristic of applicant’s goods,
namely, that they are used to identify platelet factor 4
bound to IgG antibodies.
In addition, the Internet articles submitted by the
examining attorney establish that members of the science
and medical community recognize that PF4 and IgG bind
together with heparin to form immune complexes. As such,
this evidence supports a finding that prospective users of
applicant’s goods, identified by applicant as scientists
and medical practitioners, are accustomed to encountering
these terms used to describe a feature thereof, namely,
that they are intended to identify PF4 IGG immune
complexes. Material obtained from the Internet is
acceptable in ex parte proceedings as evidence of potential
Ser No. 77129308
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exposure to a term by the relevant public. See In re Fitch
IBCA, Inc., 64 USPQ2d 1058 (TTAB 2002).
We are not persuaded by applicant’s argument that its
mark is not merely descriptive because it could describe a
wide variety of goods. As noted above, we must consider
whether the applied-for mark is merely descriptive not in
the abstract, but rather in relation to the identified
goods for which registration is sought. See In re Bright-
Crest, Ltd., supra. The record evidence demonstrates that
PF4 IGG merely describes a feature or characteristic of the
identified diagnostic reagents and test kits that include
such reagents.
Nor are we persuaded that the mark is not merely
descriptive because it does not identify either heparin, or
the class of IgG antibodies and the particular PF4 complex
its kits are intended to detect. Applicant cites to no
authority for its apparent position that a mark must
identify all the underlying requirements necessary to use
its test kits and reagents or the specific antibodies or
proteins detected thereby in order for the mark to be found
merely descriptive as intended to be used therewith. As
further noted above, it is not necessary that a term
describe all of the properties of the identified goods in
order for it to be considered to be merely descriptive of
Ser No. 77129308
9
such goods; rather, it is sufficient if the term describes
a significant attribute or feature thereof. See Id.
Moreover, we note that even if applicant is the first
and/or at present the only intended user of the term PF4
IGG in connection with the identified goods, it is well
settled that such intended use does not entitle 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).
Finally, we note that applicant has not submitted any
evidence to rebut the examining attorney’s prima facie case
that applicant’s proposed mark merely describes its goods.
All applicant has provided is argument regarding what a
proposed purchaser would conclude when confronted with
applicant’s mark. See In re Vsesoyuzny Ordena Trudovogo
Krasnogo Znameni, 219 USPQ 69, 70 (TTAB 1983) (assertions
in briefs are not evidence). See also In re Minnetonka,
212 USPQ 772, 777 (TTAB 1981) (determining whether a mark
has acquired distinctiveness is based on the facts as they
exist and are revealed by the evidence in the record at the
time the application is acted upon).
Ser No. 77129308
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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.