NeilMed Products, Inc.

Trademark Trial and Appeal Board

May 15, 2008

No. 78655908 (T.T.A.B. May. 15, 2008)

Hearing: April 14, 2009 Mailed: May 15, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re NeilMed Products, Inc.
________

Serial No. 78655908
_______

Lisa M. Martens of Fish & Richardson P.C. for NeilMed
Products, Inc.

Sean Crowley, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Hairston, Cataldo and Bergsman,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

NeilMed Products, Inc. filed an application to
register in standard characters on the Principal Register
the proposed mark SINUS RINSE for “pharmaceutical
preparations for treatment of nasal ailments” in
International Class 5.1

1 Serial No. 78655908 was filed on June 22, 2005, alleging first
use anywhere and in commerce as of May 1, 2000 and asserting a
claim of acquired distinctiveness under Section 2(f) of the
Trademark Act.

THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 78655908
2
The trademark examining attorney 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 highly
descriptive of applicant’s goods, and that applicant’s
showing that its proposed mark had acquired distinctiveness
under Section 2(f) was insufficient to overcome the refusal
to register. Applicant submitted additional evidence of
acquired distinctiveness under Section 2(f). The examining
attorney continued the refusal under Section 2(e)(1) and
also refused registration under Section 23 of the Trademark
Act, 15 U.S.C. §1091, on the ground that applicant’s mark
is incapable of identifying applicant’s goods and
distinguishing them from those of others. The examining
attorney rejected applicant’s subsequent offer to amend the
application to seek registration on the Supplemental
Register. When the refusals were made final, applicant
appealed. Applicant and the examining attorney filed
briefs on the issues under appeal, and applicant filed a
reply brief. In addition, the examining attorney and
counsel for applicant presented arguments at an oral
hearing held before this panel on April 14, 2009.
Applicant contends that its proposed mark is not
generic for its goods, but has acquired distinctiveness
under Section 2(f), or, in the alternative, at least is
Ser No. 78655908
3
appropriate for registration on the Supplemental Register.
First, applicant argues that prominent medical journals do
not make generic use of SINUS RINSE but rather use “several
alternative common generic terms for Applicant’s products,
namely, ‘nasal saline,’ ‘saline solution,’ or ‘nasal
irrigations,’ with the proper technical term expressed as
‘isotonic sodium chloride solution.’”2 Second, applicant
argues that the examining attorney’s evidence of
genericness is actually evidence of misuse of applicant’s
trademark, and that as a result of its efforts at
enforcement of its trademark rights and correction of
improper usage by third-parties, “the materials set forth
by the Examining Attorney fail to prove that ‘SINUS RINSE’
is used by the relevant public primarily to refer to the
applicable genus of goods”3 but rather is recognized as a
trademark. Applicant argues in addition that the evidence
of record fails to show “widespread and persistent generic
usage of Applicant’s mark by competitors.”4 Finally,
applicant argues that the examining attorney has failed to
meet the heavy burden of demonstrating that SINUS RINSE is
generic as applied to applicant’s goods.

2 Brief, p. 7.
3 Id. at 8, emphasis in original.
4 Id. at 10, emphasis in original.

Ser No. 78655908
4
In support of its position, applicant has made of
record articles from medical journals and the Internet as
well as third-party advertisements for its goods retrieved
from Internet web pages. Applicant submits these materials
to support its contention that SINUS RINSE points uniquely
to applicant as the source of its goods and that other
terms are used as the generic indicators therefor.
Representative samples from these articles and web pages
follow:

Got a runny nose? Flush it out!
… In order to keep his head free of congestion,
Malone has adopted a technique that singers use
called nasal irrigation. Some people refer to it
as nasal lavage or neti-potting. …
Saline irrigation has gone mainstream in recent
years. And there’s research to suggest it works.
In one small study at the University of
Wisconsin, Dr. David Rabago recruited two groups
of sinus sufferers. Half were trained to use
nasal irrigation daily. The others didn’t use it
[at] all. “The group that used the irrigation
improved a lot” compared to the group that
didn’t, Rabago says. …
(NPR Morning Edition, February 22, 2007);

Irrigating your sinuses can work wonders to
relieve stuffiness, sneezing and other symptoms
of the season. …
Call it spring cleaning for your nose. Nasal
rinsing – or sinus irrigation – is a simple,
ancient technique. …
(Herbs for Health, url not supplied); and

Sinus Irrigation Kit
Ser No. 78655908
5
The Sinus Rinse™ Kit from NeilMed Products, Inc.,
comes with 50 packets of preservative-free, easy-
to-dispense sodium chloride and sodium bicarbonate
mixture, an irrigation bottle, and a comprehensive
educational brochure on rhinitis, sinusitis and
nasal irrigation. …
Sinus Rinse helps alleviate nasal allergies,
chronic sinus disease, and nasal irritation from
occupational dust, fumes, animal dander, grass,
pollen, smoke, smog, and house dust. …
(ENT Product Marketplace).

The examining attorney maintains that applicant’s
proposed mark is a generic designation for its goods. In
particular, the examining attorney argues that applicant’s
goods are a “sinus rinse” and that the relevant consuming
public refers to applicant’s goods as such (brief
unnumbered p. 3-5). The examining attorney argues that, as
a result, applicant’s proposed mark is incapable of
functioning as a source identifier for its goods.
In support of the refusal, the examining attorney has
made of record dictionary definitions of “sinus” and
“rinse.” According to these definitions, “sinus” may be
defined as follows: “any of various air-filled cavities in
the bones of the skull, especially one communicating with
the nostrils.”5 “Rinse” may be defined as follows: “a
solution, such as water, used in rinsing.”6

5 The American Heritage Dictionary of the English Language, (4th
Ed. 2006).
6 Id.

Ser No. 78655908
6
The examining attorney further has made of record
articles and advertisements retrieved from the Lexis/Nexis
computer database as well as Internet web pages. The
following representative samples from such articles and web
pages are illustrative (emphasis added):

A very direct and affordable way to clear the
sinuses is to use a sinus rinse that can be
purchased at his office or other medical
suppliers, or made at home.
bartletexpress.com;

For more information on how to prepare and
perform a saline sinus rinse and for proper
dosages of the treatments listed above, check
with a doctor of natural medicine.
“Relief for Hay Fever,” International Examiner,
April 30, 2004;

“A sinus rinse can be very helpful,” (Dr.) Keslin
said, referring to a saltwater solution used to
rinse the sinuses and nasal passages.
“Plagued by Pollen? You’re Not Alone,”
Albuquerque Journal, March 2, 2006;

You’ve had allergy shots. You’ve used all the
drugstore stuff. You’ve tried the pills, the
potions, the inhalers, the eye drops, the nasal
sprays, the sinus rinses. Some of it helps, but
not much.
“A Sensitive Nose for News,” The Oregonian, April
14, 2006;

There are a number of ways to treat sinusitis.
Treatment approaches include sinus irrigation, in
which a sinus rinse is used to flush the sinuses
and nasal passages. …
allergychannel.net;
Ser No. 78655908
7

Some people with postnasal drip find relief with
decongestants, non-drowsy antihistamines, or
allergy medication. Doctors may also recommend
cleaning nasal passages with a sinus rinse.
“Medical Mailbox,” Saturday Evening Post, March
1, 2008; and

This ancient Indian practice helps wash the nose
and sinuses. It should be safe, though you can
accomplish much the same effect with a saline
sinus rinse found in most pharmacies.
“The People’s Pharmacy,” Newsday, January 29,
2008.

A mark is a generic name if it refers to the class,
genus or category of goods and/or services on or in
connection with which it is used. See In re Dial-A-
Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807
(Fed. Cir. 2001), citing H. Marvin Ginn Corp. v.
International Association of Fire Chiefs, Inc., 782 F.2d
987, 228 USPQ 528 (Fed. Cir. 1986). The test for
determining whether a mark is generic is its primary
significance to the relevant public. See Section 14(3) of
the Act. See also In re American Fertility Society, 188
F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic Wand Inc.
v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991);
and H. Marvin Ginn Corp. v. International Association of
Fire Chiefs, Inc., supra. The examining attorney has the
burden of establishing by clear evidence that a mark is
Ser No. 78655908
8
generic and thus unregistrable. See In re Merrill Lynch,
Pierce, Fenner and Smith, Inc., 828 F.2d 1567, 4 USPQ2d
1141 (Fed. Cir. 1987). Evidence of the relevant public’s
understanding of a term may be obtained from any competent
source, including testimony, surveys, dictionaries, trade
journals, newspapers, and other publications. See In re
Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ
961 (Fed. Cir. 1985).
In In re American Fertility Society, supra, our
primary reviewing court held that if the USPTO can prove
“(1) the public understands the individual terms to be
generic for a genus of goods and species; and (2) the
public understands the joining of the individual terms into
one compound word to lend no additional meaning to the
term, then the PTO has proven that the general public would
understand the compound term to refer primarily to the
genus of goods or services described by the individual
terms.” (Id. at 1837.)
The court further clarified the test in In re Dial-A-
Mattress Operating Corp., supra, 1-888-M-A-T-R-E-S-S for
“telephone shop-at-home retail services in the field of
mattresses,” (Id. at 1810):
Where a term is a “compound word” (such as
“Screenwipe”), the Director may satisfy his
burden of proving it generic by producing
Ser No. 78655908
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evidence that each of the constituent words is
generic, and that “the separate words joined to
form a compound have a meaning identical to the
meaning common usage would ascribe to those words
as a compound.” In re Gould Paper Corp., 834
F.2d 1017, 1018, 5 USPQ2d 1110, 1110(Fed. Cir.
1987). However, where the proposed mark is a
phrase (such as “Society for Reproductive
Medicine”), the board “cannot simply cite
definitions and generic uses of the constituent
terms of a mark”; it must conduct an inquiry into
“the meaning of the disputed phrase as a whole.”
In re The Am. Fertility Soc'y, 188 F.3d at 1347,
51 USPQ2d at 1836. The In re Gould test is
applicable only to “compound terms formed by the
union of words” where the public understands the
individual terms to be generic for a genus of
goods or services, and the joining of the
individual terms into one compound word lends “no
additional meaning to the term.” Id. at 1348-49,
51 USPQ2d at 1837.

The court concluded that “1-888-M-A-T-R-E-S-S,” as a
mnemonic formed by the union of a series of numbers and a
word, bears closer conceptual resemblance to a phrase than a
compound word, and the court reiterated that the PTO must
produce evidence of the meaning the relevant purchasing
public accords to the proposed mnemonic mark “as a whole.”
In concluding that there was not substantial evidence that
the term is generic, the court added that the term is not
literally a genus or class name nor does it “immediately and
unequivocally” describe the service at issue.
We find that, in this case, SINUS RINSE is more
analogous to the phrase considered by the court in American
Fertility than it is to the compound word considered in
Ser No. 78655908
10
Gould. That is to say, unlike the term SCREENWIPE
contemplated by the Federal Circuit in In re Gould, supra,
SINUS RINSE appears to be a phrase comprising its
constituent words, and not a compound word. Thus,
dictionary definitions alone cannot support a refusal to
register the proposed mark. However, we need not determine
whether definitions of the constituent terms would be
sufficient in view of the fact that evidence made of record
by the examining attorney establishes that the wording
“sinus rinse” is the name of a class of goods.
While we agree with applicant that the genus of the
goods at issue is “pharmaceutical preparations for
treatment of nasal ailments,” that is, the goods as
identified in the involved application, we also find that
SINUS RINSE is understood by the relevant public to refer
to that genus of goods. See H. Marvin Ginn, supra. A
product may have more than one generic name. In re Sun Oil
Co., 426 F.2d 401, 165 UPSQ 718, 719 (CCPA 1970) (Rich, J.,
concurring) (“All of the generic names for a product belong
in the public domain”) (emphasis in the original); Roselux
Chemical Co., Inc. v. Parsons Ammonia Company, Inc., 299
F.2d 855, 132 UPSQ 627, 632 (CCPA 1962) (a product may have
more than one common descriptive name). Specifically,
articles and advertisements made of record by the examining
Ser No. 78655908
11
attorney clearly establish that a “sinus rinse” is a saline
solution delivered into the nasal passages to rinse
allergens, mucous, and other irritants from the sinuses.
Furthermore, the materials made of record by the examining
attorney do not point to applicant, or to any other single
entity, as the source of the “sinus rinse” discussed
therein. Rather, it seems that a “sinus rinse” may be
obtained from any number of sources, or formulated at home
by the user.
In addition, applicant has failed to introduce
evidence sufficient to rebut the examining attorney’s
evidence of genericness. Instead, applicant merely relies
upon advertisements for its goods under its proposed SINUS
RINSE mark and evidence that other terms, such as “saline
solution,” are also generic as applied to its goods. Such
evidence submitted by applicant in this case is
insufficient to rebut the examining attorney’s strong prima
facie case of genericness. Cf. In re American Online,
Inc., 77 USPQ2d 1618 (TTAB 2006). We are not persuaded
that because advertisers and physicians observe SINUS RINSE
as a mark when directly referring to applicant’s goods, the
evidence made of record by the examining attorney somehow
fails to demonstrate that SINUS RINSE is used as a generic
term applied to nasal irrigation product emanating from a
Ser No. 78655908
12
variety of sources. Similarly, the fact that other terms,
such as “saline solution,” are also generic designators for
applicant’s goods does not diminish the genericness of
SINUS RINSE. Nor are we persuaded that the absence from
the record of uses of SINUS RINSE as a generic term in
medical journals is indicative that the term serves a
source-identifying function. The evidence of record
clearly establishes that SINUS RINSE is used as a generic
term in educational, informational and commercial Internet
websites as well as major circulation newspapers and
periodicals. With regard to applicant’s contention that
the record does not indicate use of SINUS RINSE as a
generic term by applicant’s competitors, we note that
applicant asserts that it has made strong efforts at
enforcement of SINUS RINSE as a trademark, and sent
numerous cease-and-desist letters to such users. Even if
we discount the examining attorney’s evidence that
applicant claims is misuse of its proposed SINUS RINSE
mark, the remaining evidence clearly establishes that
consumers of nasal irrigation products view SINUS RINSE as
a generic term therefor. We further note that there is no
evidence of record to indicate why the third-parties in
question ceased using SINUS RINSE as a generic term when
faced with applicant’s cease-and-desist letters. Thus, the
Ser No. 78655908
13
record in this case does not support a finding that the
third-parties who ceased using SINUS RINSE as a generic
term did so because they now recognize the term as a
trademark.
Accordingly, the record is sufficient to establish
that the relevant public would find SINUS RINSE a generic
term denoting applicant’s identified pharmaceutical
preparations that treat nasal ailments by rinsing irritants
from one’s sinuses.
Mere Descriptiveness
Implicit in our holding that the evidence before us
establishes that SINUS RINSE is generic for applicant’s
goods is a holding that SINUSE RINSE is at least merely
descriptive of applicant’s goods under Section 2(e)(1).
“The generic name of a thing is in fact the ultimate in
descriptiveness.” H. Marvin Ginn Corp., supra, at 530.
Acquired Distinctiveness
In finding that the designation SINUS RINSE is
incapable of being a source identifier for applicant’s
goods, we have considered, of course, all of the evidence
touching on the public perception of this designation,
including the evidence of acquired distinctiveness. As to
acquired distinctiveness, applicant has the burden to
establish a prima facie case of acquired distinctiveness.
Ser No. 78655908
14
See Yamaha International Corp. v. Hoshino Gakki Co., Ltd.,
840 F.2d 1572, 6 USPQ2d 1001, 1006 (Fed. Cir. 1988).
Applicant submitted the declaration under Trademark
Rule 2.20 of Nina Mehta, its Chief Executive Officer,
stating the following:
(1) applicant has made substantially exclusive and
continuous use of SINUS RINSE in commerce in connection
with the goods provided by applicant for over five years
prior to the date upon which the claim of distinctiveness
is made;
(2) applicant provides its goods in over 10,000
pharmacies and retail stores throughout the United States,
including Walgreens and Albertsons, as well as amazon.com,
drugstores.com and 100 catalog stores, and its users number
100,000 individuals, 20,000 doctors, and 12,000
pharmacists;
(3) applicant’s sales ranged from over $500,000 in
2001 to a projected 9,000,000 in 2006; and applicant’s
advertising figures ranged from $350,000 in 2001 to a
projected $6,000,000 in 2006;
(4) applicant advertises its goods under the SINUS
RINSE designation in brochures, pamphlets, printed
advertisements in newspapers and periodicals, its Internet
websites, radio and television; and
Ser No. 78655908
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(5) articles concerning applicant’s SINUS RINSE
products have appeared in major circulation newspapers as
well as trade publications.
Applicant submitted with its declaration representative
samples of its advertisements, packaging for its goods, and
orders from physicians.
Applicant’s long use and revenues suggest that
applicant has enjoyed a substantial degree of business
success. Nonetheless, this evidence demonstrates only the
popularity of applicant’s goods, not that the relevant
customers of such products have come to view the
designation SINUS RINSE as applicant’s source-identifying
trademark.7 See In re Bongrain International Corp., 894
F.2d 1316, 13 USPQ2d 1727 (Fed. Cir. 1990); and In re
Recorded Books Inc., 42 USPQ2d 1275 (TTAB 1997). The issue
here is the achievement of distinctiveness, and the
evidence falls far short of establishing this. Notably,
the record contains little direct evidence that the
relevant classes of purchasers of applicant’s goods view
SINUS RINSE as a distinctive source indicator for
applicant’s goods.

7 We note, in that regard, that much of the evidence submitted by
applicant in the form of orders from physicians do not make
reference to the applied-for mark, but rather request “NeilMed’s
Sinus Rinse.”

Ser No. 78655908
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Accordingly, even if the designation SINUS RINSE were
found to be not generic, but merely descriptive, given the
highly descriptive nature of the designation SINUS RINSE,
we would need to see a great deal more evidence (especially
in the form of direct evidence from customers) than what
applicant has submitted in order to find that the
designation has become distinctive of applicant’s goods.
That is to say, the greater the degree of descriptiveness,
the greater the evidentiary burden on the user to establish
acquired distinctiveness. See Yamaha Int'l. Corp. v.
Hoshino Gakki Co., supra; and In re Merrill Lynch, Pierce,
Fenner & Smith, Inc., supra. The sufficiency of the
evidence offered to prove secondary meaning should be
evaluated in light of the nature of the designation.
Highly descriptive terms, for example, are less likely to
be perceived as trademarks and more likely to be useful to
competing sellers than are less descriptive terms. More
substantial evidence of secondary meaning thus will
ordinarily be required to establish their distinctiveness.
Decision: The refusal under Section 2(e)(1) of the
Act on the ground that the proposed mark is generic is
affirmed; the refusal under Section 2(e)(1) of the Act on
the ground that the mark is merely descriptive and the
Section 2(f) showing is insufficient is likewise affirmed.