Juvent Medical, Inc.

Trademark Trial and Appeal Board

Jul 23, 2008

No. 78873139 (T.T.A.B. Jul. 23, 2008)

Mailed:
23 July 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Juvent Medical, Inc.1
________

Serial No. 78873139
_______

David M. Carter of Carter, DeLuca, Farrell & Schmidt, LLP
for Juvent Medical, Inc.

Edward Fennessy, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Seeherman, Drost, and Ritchie de Larena,
Administrative Trademark Judges.

Opinion by Drost, Administrative Trademark Judge:

On May 1, 2006, applicant, Juvent Medical, Inc., filed
an intent-to-use application to register the mark OSTEO
PLATFORM, in standard character form, on the Principal
Register for goods identified as “medical apparatus,
namely, vibration plates for therapeutic purposes” in Class
10. Serial No. 78873139.

1 A change of name to Juvent Medical, Inc. from Juvent, Inc. was
recorded on March 26, 2008. Reel/Frame No. 3747/0167.
THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB
Ser. No. 78873139
2
The examining attorney2 refused to register applicant’s
mark on the ground that the mark would be merely
descriptive under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), if it were used with applicant’s
goods. The examining attorney argues that “the word
‘osteo’ is a well-known word of Greek origin which means
‘bone.’” Brief at unnumbered p. 3. Furthermore,
applicant’s “plates comprise a vibrating platform designed
and intended to treat bone conditions.” Id. at 9.
In response, applicant argues that: (1) inasmuch as
“the term OSTEO is derived from the Greek language, it is
not likely that all consumers are well versed in the Greek
language to instantaneously come to the conclusion that the
term OSTEO is a Greek term of or relating to bone;” (2)
several trademarks are registered for the term OSTEO
without a disclaimer of the term; and (3) “by doing
research of the goods on Applicant’s website … it is
evident that the descriptiveness of the mark is not being
determined on the basis of the goods or services as set
forth in the application and requires imagination, thought
and perception to reach a conclusion as to the nature of

2 The present examining attorney was not the original examining
attorney in the case.
Ser. No. 78873139
3
the goods.” Brief at 10.3 Applicant argues that “linking
‘OSTEO’ and ‘PLATFORM’ creates an impressive sounding
composite non-sequitur, which, by definition, cannot
‘describe’ the goods it is accused of describing.” Brief
at 12.
After the examining attorney made the refusal final,
applicant filed a request for reconsideration and appealed
to this board.
“A term is merely descriptive if it immediately
conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is
used.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82
USPQ2d 1828, 1831 (Fed. Cir. 2007). See also In re MBNA
America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780
(Fed. Cir. 2003). “Descriptiveness of a mark is not
considered in the abstract. Rather, it is considered in
relation to the particular goods for which registration is
sought, the context in which it is being used, and the
possible significance that the term would have to the
average purchaser of the goods because of the manner of
its use or intended use.” Bayer, 82 USPQ2d at 1831. See
also In re Abcor Development Corp., 588 F.2d 811, 200 USPQ

3 Applicant has apparently attached the entire record in this
application to its brief. This was unnecessary and confusing.
Ser. No. 78873139
4
215, 218 (CCPA 1978) (“Appellant’s abstract test is
deficient – not only in denying consideration of evidence
of the advertising materials directed to its goods, but in
failing to require consideration of its mark ‘when applied
to the goods’ as required by statute”).
We begin by looking at the evidence in this case. We
take judicial notice4 of the English meaning of the term
“Osteo-” as “a combining form meaning ‘bone’ used in the
formation of words.” The Random House Dictionary of the
English Language (unabridged) (2d ed. 1987). Inasmuch as
the term “osteo-” is a recognized term in English, the
determination here does not depend on how well versed in
Greek potential purchasers are.
Both applicant and registrant have submitted several
registrations to show how the Office has treated the term
“Osteo” in the past. Third-party registrations can be used
in the same manner as a dictionary definition to illustrate
how the term is perceived in the trade or industry. In re
Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006) (“As
shown by the examining attorney's evidence, the term
‘SOLUTIONS’ has been regarded as merely descriptive in a

4 University of Notre Dame du Lac v. J.C. Gourmet Food Imports
Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
Ser. No. 78873139
5
number of third-party marks, the registrations of which
include disclaimers of the term ‘SOLUTIONS.’ See General
Mills Inc. v. Health Valley Foods, 24 USPQ2d 1270, 1277
(TTAB 1972) (‘Although the registrations are not evidence
of use, the registrations show the sense in which the term
‘fiber’ is employed in the marketplace, similar to a
dictionary definition’).” Accord In re J.M. Originals
Inc., 6 USPQ2d 1393, 1394 (TTAB 1987) (“[T]hird party
registrations are of use only if they tend to demonstrate
that a mark or a portion thereof is suggestive or
descriptive of certain goods and hence is entitled to a
narrow scope of protection. Used in this proper, limited
manner, ‘third party registrations are similar to
dictionaries showing how language is generally used.’ 1
McCarthy, Trademarks and Unfair Competition, § 11:26 at p.
516 (2d ed. 1984)”).
The examining attorney’s registrations include:
Registration No. 2647420 (OSTEO RELIEF for herbal dietary
supplements, Supplemental Register, “Osteo” disclaimed);
No. 2458597 (OSTEO VITAL for supplements, “Osteo”
disclaimed); No. 2501441 (CLINICIAN’S CHOICE OSTEO GARD for
supplements, “Osteo” disclaimed); No. 3121063 (OSTEO MATRIX
for supplements, “Osteo” disclaimed); 2719413 (OSTEO PEAK
for supplements, “Osteo” disclaimed); No. 2911814 (OSTEO
Ser. No. 78873139
6
SYMMETRY for courses in the fields of physical and massage
therapy, “Osteo” disclaimed); and No. 3197532 (OSTEO FUSION
for supplements, “Osteo” disclaimed).
Applicant has similarly submitted third-party
registrations to support its position that its mark is not
merely descriptive. See Registration No. 2716560 (OSTEO-
EDGE for supplements); No. 2762662 (OSTEO-AIDE for
supplements); No. 2588169 (OSTEO-SIZE for supplements); No.
2450167 (OSTEO-SITE for a bone biopsy/infusion needle); No.
2621670 (OSTEO-PIN for bioresorbable pins used in oral
surgery and procedures); No. 2599865 (OSTEO PROTECT for
vitamins); No. 1405669 (OSTEOGRAF for syringes and
hydroxylapatite non-resorbable bone grafting materials);
No. 1593781 (OSTEOTECH for human bone and related tissue
for use in grafts); and Nos. 1557819 and 1556682 (OSTEOCURE
and OSTEOCARE for bone growth stimulation device).5
Interestingly, among applicant’s submitted
registrations is No. 3197532 for the mark OSTEO FUSION for
supplements and it contains a disclaimer of the word
“Osteo.”

5 We have not considered applicant’s submitted canceled
registrations because a “canceled registration does not provide
constructive notice of anything.” Action Temporary Services Inc.
v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed.
Cir. 1989).
Ser. No. 78873139
7
Both applicant’s and the examining attorney’s
registrations are not very persuasive. The examining
attorney’s registrations are mostly for dietary supplements
or vitamins, which are not the goods at issue here;
although they do provide at least some indication that the
term “osteo” would have some descriptive significance for
vitamins and supplements that apparently promote bone
health. Applicant’s registrations, on the other hand, are
mostly for hyphenated words or terms without spaces. In
these cases, a disclaimer of a descriptive term would not
be appropriate. TMEP § 1213.05(a) (5th ed. rev. September
2007)(“If a compound word mark consists of an unregistrable
component and a registrable component combined into a
single word, no disclaimer of the unregistrable component
of the compound word will be required”) and
§ 1213.05(a)(ii) (“When a compound word is formed by
hyphenating two words or terms, one of which would be
unregistrable alone, no disclaimer is necessary”). The
second word in most of these registrations is often not
necessarily descriptive so an amendment to the Supplemental
Register or a disclaimer would not be appropriate. We add
that, to the extent that there are some registrations that
could have been treated differently, these marks are not
Ser. No. 78873139
8
before us for adjudication. As the Federal Circuit has
explained:
The Board must decide each case on its own merits. In
re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1127,
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 prior registrations does not bind the Board or
this court.

Needless to say, this court encourages the PTO to
achieve a uniform standard for assessing
registrability of marks. Nonetheless, the Board (and
this court in its limited review) must assess each
mark on the record of public perception submitted with
the application. Accordingly, this court finds little
persuasive value in the registrations that Nett
Designs submitted to the examiner or in the list of
registered marks Nett Designs attempted to submit to
the Board.

In re Nett Designs Inc., 236 F.2d 1229, 57 USPQ2d 1564,
1566 (Fed. Cir. 2001). See also In re Hotels.com L.P., 87
USPQ2d 1100, 1108 (TTAB 2008) (“Nor do these third-party
registrations establish that there is an Office practice
holding such marks are generally registrable”).
The examining attorney has also submitted internet
evidence (emphasis added) to show that the term “platform”
is used in relation to various types of vibrating machines
that are used for medical and exercise purposes.
Take Charge of Your Bones
Renee Newman
Chapter 12 – Vibrating Platform Therapy
Promising Results for Lay People
Making Vibration Therapy Safe
http://avoidboneloss.com
Ser. No. 78873139
9

The Osteoporosis Research Group is currently
engaged in two interdisciplinary interventional
studies in the area of sports and health with focus on
osteoporosis research…
In a second study, the Erlanger Longitudinal
Vibrations Study (ELVIS), the impact of “whole body
vibrations” applied by a vibration platform is
analyzed. 50 women over 65 years old take part in a
defined rehab training program in which the
strengthening of the legs is done on vibration
platforms…
www.imp.uni-erlangen.de

Osteoporosis: Device may help prevent bone loss in
the frail
Weight-bearing exercise is one of the principal
recommendations for preventing and treating the loss
of bone density that can lead to osteoporosis.
However, exercise isn’t always possible, particularly
for the frail.
An experimental device may help solve this
problem, reports the October 2005 issue of the Harvard
Women’s Health Watch. Research strongly suggests that
a few minutes of standing on an oscillating platform
about the size of a bathroom scale, can do as much for
bone density as longer bouts of more typical weight-
bearing exercise.
Medicine & Law Weekly, September 14, 2007

Gentle Vibration Prevents Bone Loss…
With his co-workers, Rubin is already testing the
effects of a gentle vibration on bone loss in 64
postmenopausal women. Half of them stand on a
vibrating platform resembling a bathroom scale for 20
minutes daily… The forces involved are so gentle that
the women can’t tell whether or not the platform is
vibrating.
www.webmd.com

Whole Body Vibration (known as WBV) is actually
the latest frontier in building muscle. Users stand
on a vibrating platform and perform a series of stands
and squats while the machine jostles the body…
The machines were first developed in Russia in
the Sixties to help cosmonauts recover bone loss
depleted in space, but today’s manufacturers claim a
Ser. No. 78873139
10
litany of other benefits that fall just short of
miraculous. Besides treating osteoporosis, they say,
WBV can build muscle, reduce cellulite…
Beauty Flash, September 1, 2007

No less a physical specimen than Madonna herself
is said to step onto the $14,000 vibrating platform to
shape, sculpt and tone…
Proponents say the machine prevents arthritis and
improves osteoporosis…
New York Post, July 20, 2006

A new vibration-based fitness fad is sweeping into
Massachusetts targeting flabby boomers and weak-boned
senior citizens. The pitch this time: Just standing
on a vibrating platform can strengthen bone and
muscle, and exercising on the platform can boost
athletes’ performance… Boston scientists are about to
launch a large study to determine whether just 10
minutes a day can reduce osteoporosis.
Boston Globe, July 8, 2006

Vibration Machine – Vitality600 Exercise Platform…
Originally designed for international space
programs but now at home in any home gym, benefits
attributed to vibration exercise include:
… increased bone density…
A one minute workout on this vibration platform
burns more energy and creates strength improvements.
www.vitality4life.com.au

Also, the examining attorney included evidence from
applicant’s website showing that it uses the term
“platform” to describe similar devices from applicant.
- Is the Juvent 1000 Dynamic Motion Therapy (DHT)
Platform easy to use?
… You derive maximum therapeutic benefits simply by
standing on the Juvent Platform in an upright relaxed
stance…

- How does the cost of a Juvent 1000 compare to
ongoing drug therapy for osteoporosis?

Ser. No. 78873139
11
The cost is less than chronic osteoporosis drug
therapy. The durable Juvent Platform is designed to
last a lifetime and can be used safely and effectively
by all members of the family at risk of low bone
density.

In addition, applicant’s website (www.juvent.com/ie)
indicates that: “Juvent has created a new approach to
osteoporosis treatment and prevention. Juvent’s Dynamic
Motion Therapy (DMT) Platform transmits gentle, vertical
displacements (vibrations).”
Finally, applicant has submitted Google summary search
results for the searches “platform: define” and “osteo
platform.” Truncated internet search results are not
entitled to much weight. Bayer, 82 USPQ2d at 1833 (“Bayer
asserts that the list of GOOGLE search result summaries is
of lesser probative value than evidence that provides the
context within which a term is used. We agree. Search
engine results — which provide little context to discern
how a term is actually used on the webpage that can be
accessed through the search result link — may be
insufficient to determine the nature of the use of a term
or the relevance of the search results to registration
considerations”). Here, these search results merely show
that the term “platform” can have numerous meanings and
that there are few results for the term “osteo platform.”
Ser. No. 78873139
12
To the extent that applicant argues that others are not
using the term OSTEO PLATFORM, we point out that:
The fact that applicant may be the first and possibly
the only one to utilize this notation in connection
with its services cannot alone alter the basic
descriptive significance of the term and bestow
trademark rights therein.

In re Gould, 173 USPQ 243, 245 (TTAB 1972).

The evidence convinces us the term “Osteo” is merely
descriptive of a medical apparatus, namely, vibration
plates for therapeutic purposes. “Osteo” is defined as a
combining term meaning “Bone.” In addition to
osteoporosis, other English terms with “Osteo” include
“osteoanagenesis meaning “regeneration of bone” and
“osteoarthritis,” which is a “noninflammatory degenerative
joint disease occurring chiefly in older persons,
characterised by degeneration of the articular cartilage,
hypertrophy of bone at the margins and changes in the
synovial membrane.” Applicant’s therapeutic purposes would
include strengthening bones or dealing with bone-related
problems. In response to the examining attorney’s request
for information, applicant acknowledged that: “applicant’s
goods will be used for the treatment and prevention of
osteoporosis as well as for addressing the entire
musculoskeletal system…” Response dated February 22, 2007
at 5. “Applicant’s goods will also be used by astronauts
Ser. No. 78873139
13
to help prevent the bone and muscle loss.” Id. at 6.
Applicant identifies, inter alia, the following purposes of
its goods:
a. Prevent bone loss and improve bone density and
strength…

d. Prevents and reverses the loss of bone due to
osteoporosis

e. Reduces the possibility of spinal or hip fractures

f. Excellent option for those unable or unwilling to
take osteoporosis medication.

Id. at 5.

On its website, applicant’s Juvent Dynamic Motion
Therapy “The Non-Drug Treatment for Osteoporosis” is
described as follows:
Q. Is the Juvent 1000 Dynamic Motion Therapy (DMT)
Platform easy to use?

A. The Juvent 1000 is reasonably lightweight (20
lbs./9.4 kg) and portable…

Q. Are there clinical studies and research to support
that the Juvent 1000 not only stops osteoporosis but
actually helps grow new bones?

A. Clinical studies with the Juvent 1000 show an
increase in bone growth averaging 2% per year in the
spine and hip…

www.juvent.com/ie.
Considering the evidence of record, when prospective
purchasers encounter the term “Osteo” on goods that will be
used for therapeutic purposes that include preventing and
Ser. No. 78873139
14
reversing the loss of bone due to osteoporosis and to
improve bone density, they will immediately understand the
term to describe this feature.
With regard to the term “platform,” applicant has
acknowledged that its goods “do involve the use of a
platform area on which the users stand.” Response dated
February 22, 2007 at 5. Applicant uses the term “platform”
to refer to its Juvent 1000 medical apparatus. The
examining attorney’s evidence shows that similar devices
that are designed to fight osteoporosis, prevent bone loss,
or improve bone density are referred to as “platforms.”
See, e.g., “Vibrating Platform Therapy,” “vibration
platform,” “a few minutes of standing on an oscillating
platform,” and “Half of them stand on a vibrating platform
resembling a bathroom scale.”
In response, applicant argues that the term “platform”
“has different meanings depending on how the term is used…
The word platform in no way describes a medical apparatus
for therapeutic purposes.” Brief at 11. It is not a
surprise that a common English word can have many meaning
and still be merely descriptive of specific goods or
services. As a result, we are required to consider
descriptiveness in the context of how the term is used in
association with the goods or services. It is also not
Ser. No. 78873139
15
surprising that “the Examining Attorney has had to go
beyond the description of the goods, specifically, by
requesting further information ... and doing research on
the Appellant’s website.” Brief at 10. As we discussed
earlier, mere descriptiveness “of a mark is not considered
in the abstract.” Bayer, 82 USPQ2d at 1831. In addition,
there is nothing unusual about doing research on an
applicant’s website or with requesting applicant’s
literature. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009,
1010 (Fed. Cir. 1987) (“We discern no error or inequity in
the Board's use of appellant's catalog as evidence of what
it contains, or in the Board's finding that ‘apple pie’”
refers to the potpourri scent”). Here, applicant
acknowledges that its goods have a platform and the
evidence shows that similar goods that are designed to
prevent bone loss are described by the term platform.
Therefore, we cannot agree that the term “platform in no
way describes” its goods.
Ultimately, the test of mere descriptiveness is not
whether the individual terms describe the goods or
services, but rather whether the term as a whole is
descriptive. Individually descriptive terms, when
combined, may not be merely descriptive. When we view the
Ser. No. 78873139
16
term OSTEO PLATFORM, we must obviously consider the
combined term in the context in which it is used.
Similarly, that applicant can take the dictionary
definitions of the individual words in the term and
come up with a meaning that makes no sense in
connection with the services recited in the
application does not mandate a different conclusion on
the issue of mere descriptiveness. As stated above,
the determination of descriptiveness is made in the
context of the identified services, and the meaning of
“ETHNIC ACCENTS” in connection with applicant's
services is clearly that of home furnishings or
decorations relating to various ethnicities.

In re Ethnic Home Lifestyles Corp., 70 USPQ2d 1156, 1159
(TTAB 2003). See also In re Time Solutions Inc., 33 USPQ2d
1156, 1158 (TTAB 1994).
When consumers encounter applicant's mark, YOUR HEALTH
INSURANCE MANAGER, used in the context of applicant's
advertising, which describes applicant's goods as "new
PC software to manage your medical records and health
insurance" and lists the various tasks performed by
the software programs, as recited above, we have no
doubt that the mark will immediately convey to them
information concerning a significant feature or
function of applicant's programs, namely, that they
manage, i.e., handle with skill, personal health
insurance matters.

Applicant argues that as “applied to the goods, OSTEO
PLATFORM may suggest that the medical apparatus is a
‘medical system on which programs or operating systems
operate or software program’ or ‘a set of medical
principles or opinions’ and not merely a ‘raised level
surface on which people or things stand.’” Brief at 11-12.
However, we must consider the descriptiveness of the mark
Ser. No. 78873139
17
in connection with the identified goods. Applicant’s goods
are “medical apparatus, namely, vibration plates for
therapeutic purposes,” not computer programs or medical
opinions. Applicant has also stated that “the consumer or
a health professional may purchase the device.” Response
dated February 22, 2007 at 6. When these purchasers
encounter the mark OSTEO PLATFORM on medical apparatus for
therapeutic purpose that is designed to improve bone
density and prevent osteoporosis by using a vibrating
platform, they will immediately understand that the term
describes a feature of goods, i.e., they are platforms to
help with bone density problems such as osteoporosis.
Therefore, applicant’s mark is merely descriptive.
Decision: The refusal to register applicant’s mark
OSTEO PLATFORM under Section 2(e)(1) of the Trademark Act
is affirmed.