Superior Balance S.L.

Trademark Trial and Appeal Board

Jan 13, 2021

88632909 (T.T.A.B. Jan. 13, 2021)

Mailed: January 13, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Superior Balance S.L.
_____

Application Serial No. 88632909
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Avraham S.Z. Cohn of Cohn Legal, PLLC for Superior Balance S.L.

Dezmona J. Mizelle-Howard, Trademark Examining Attorney, Law Office 110,
Chris A. F. Pedersen, Managing Attorney.
_____

Before Bergsman, Wolfson and Pologeorgis, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Superior Balance, S.L. (Applicant) seeks registration on the Principal Register of
the mark Y-STRAP, in standard character form, for the goods listed below:
Physical exercise apparatus, for medical purposes; Posture
correction device, namely, an adjustable harness to correct
one's posture for medical purposes; Stretching machines
for therapeutic purposes; Traction apparatus for medical
use, in International Class 10.1

1 Serial No. 88632909 filed September 26, 2019, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), based on Applicant’s claim of first use of its mark anywhere as of August
12, 2019, and first use of its mark in commerce as of August 18, 2019.
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Serial No. 88632909.

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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 Y-STRAP
when used on the identified goods is merely descriptive because it “is a combination
of descriptive word, ‘Y’ that describes the shape and ‘STRAP’ that describes the
function.”2
Specifically, the wording Y-STRAP describes the shape
and function of the goods in that the goods presented are
essentially, a strap in the shape of a “y”. A term that
describes the shape or form of a product is merely
descriptive. In re Metcal Inc., 1 USPQ2d 1334 (TTAB 1986)
(holding SOLDER STRAP merely descriptive of self-
regulating heaters in the form of flexible bands or straps);
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982) (holding
TOOBS merely descriptive of bathroom and kitchen
fixtures in the shape of tubes). Finally, the “Y” in the mark
also refers to “y-axis traction strap” that is a common term
in the relevant field.3
We reproduce below an excerpt from Applicant’s specimen of use displaying
Applicant’s medical apparatus.

2 Examining Attorney’s Brief (6 TTABVUE 5).
3 Id. (6 TTABVUE 6).
Serial No. 88632909.

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I. Preliminary Issue
Both Applicant and the Examining Attorney attached exhibits to their briefs.
Trademark Rule 2.142(d) provides,
The record in the application should be complete prior to
the filing of an appeal. Evidence should not be filed with
the Board after the filing of a notice of appeal. If the
appellant or the examining attorney desires to introduce
additional evidence after an appeal is filed, the appellant
or the examining attorney should submit a request to the
Board to suspend the appeal and to remand the application
for further examination.
Because neither Applicant nor the Examining Attorney submitted a request to the
Board to suspend the appeal and remand the application for further examination, we
will not consider any of the new evidence attached to the briefs.
To the extent that the Examining Attorney previously submitted the evidence
attached to her brief during the prosecution of the application, resubmitting evidence
is unnecessary and it is not helpful. See Life Zone Inc. v. Middleman Grp., Inc.,
87 USPQ2d 1953, 1955 n.4 (TTAB 2008).
II. Whether Y-STRAP is merely descriptive.
A. Applicable Law
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,
Serial No. 88632909.

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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 [or
services], the PTO must also determine whether the mark
as a whole, i.e., the combination of the individual parts,
conveys any 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).
The issue before us is whether the mark Y-STRAP as a whole is merely descriptive
when used in connection with the identified goods. Alternatively, as stated above, the
issue is to determine how a consumer of the medical apparatus will perceive the term
Y-STRAP.
Serial No. 88632909.

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B. Relevant Evidence
The Examining Attorney submitted the evidence listed below to prove Y-STRAP
used in connection with medical apparatus is merely descriptive:4
● Tungate Chiropractic website (tungatechiropractic.com)
WHAT IS THE Y-STRAP ADJUSTMENT?
WHY THIS CHIROPRACTIC TOOL IS CALLED Y-
STRAP?
The “Y-Strap,” or ‘y-axis traction strap” to be more specific,
gets its name from characteristics that describe it:
A) The shape it has when used on the patient’s neck. The
lower part of the “y” is the part that is wrapped around the
patient’s neck and back of the head. After fastening the

4 Citations to the examination record are to the USPTO’s Trademark Status and Document
Retrieval system (TSDR) by page number in the downloadable .pdf format.
We did not consider the GOOGLE search results attached to the June 4, 2020 Office Action
(TSDR 3-5) or the July 16, 2020 Office Action (TSDR 43-49). A list of Internet search results
generally has little probative value, because such a list does not show the context in which
the term is used on the listed web pages. See In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828,
1833 (Fed. Cir. 2007) (Google® search results provide very little context of the use of
ASPIRINA and, therefore, are “of little value in assessing the consumer public perception of
the ASPIRINA mark”); In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1715 (TTAB 2011); In
re Tea and Sympathy, Inc., 88 USPQ2d 1062, 1064 n.3 (TTAB 2008) (finding truncated
Google® search results entitled to little probative weight without additional evidence of how
the searched term is used); In re Thomas, 79 USPQ2d 1021, 1026 (TTAB 2006) (rejecting an
applicant’s attempt to show weakness of a term in a mark through citation to a large number
of Google® “hits” because the “hits” lacked sufficient context); In re King Koil Licensing Co.,
79 USPQ2d 1048, 1050 (TTAB 2006) (noting that web page links “do little to show the context
within which a term is used on the web page that could be accessed by the link”); In re
Remacle, 66 USPQ2d 1222, 1223 n.2 (TTAB 2002) (finding the print-out of Internet search
results to be of little probative value due to insufficient text to determine the nature of the
information or its relevance); In re Fitch IBCA Inc., 64 USPQ2d 1058, 1060 (TTAB 2002)
(noting that “[e]vidence of actual use of a phrase by a website has far greater probative value”
than a search summary).
In addition, we do not consider the Well Being website (wellbeing365.com.au) because it is
an Australian website and the Examining Attorney did not submit any evidence to show that
U.S. consumers access this website. June 4, 2020 Office Action (TSDR 9-14).
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chiropractic Y-Strap to the patient’s head, the two “arms”
of the “y” lead to the handle bar.
B) The body axis (Y-Axis) where the force takes place. The
Y-Axis, also known as vertical axis is aligned with the
spine.

HOW DOES THE CHIROPRACTIC Y-STRAP
ADJUSTMENT WORK?
The Y-Strap adjustment works by stretching the spine
pulling the head in the Y-Axis of the body. This pulling
force generates decompression in the vertical discs.5

5 June 4, 2020 Office Action (TSDR 6). In its website Y-Strap.com, Applicant explains that
the Y-STRAP “is inspired by manual spine traction techniques in the Y-Axis to help reduce
the tension in the vertebrae along the spine.” July 16, Office Action (TSDR 5).
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● Kinetic Chiropractic website (kinetic-chiropractic.com)
Y-STRAP CHIROPRACTOR IN OMAHA
The Y-Axis Traction Strap or Y-Strap is a tool used in our
office to help with particularly stubborn necks and upper
backs. It works by decompressing the spine and correcting
compressed joints in the neck and upper back. Certain
joints can become very stuck and sometimes require a
different technique to get them moving properly. This is
why I became a Y-Strap Chiropractor in Omaha. The Y-
Strap also works as a form of decompression in our office.
…
___
This tool has become more known due to its popularity on
social networks such as YouTube and Facebook. Dr. Moran
is excited to bring this amazing tool that has improved the
lives of many people around the world and now as a Y-
Strap chiropractor in Omaha.
___
Give us a call to see if a Y-Strap adjustment at Kinetic
Chiropractic in Omaha will work for you.6
● Dr. Steven Shoshany’s NYC Chiropractic and Spinal Decompression Center
(drshoshany.com)
INDIVIDUALIZED INTEGRATED Y-STRAP
TREATMENT IN NYC
Dr. Steven Shoshany’s Individualized Integrated Y-Strap
Treatment in NYC
The Y-Strap has gained a lot of traction on social media and
youtube [sic] since 2017, also known by its original name,
the long axis traction treatment seems to be headed back
to its inception. Dr. Steven Shoshany recently announced
the integration of the lauded and seemingly rediscovered
treatment to his Manhattan practice.

6 July 4, 2020 Office Action (TSDR 15-16).
Serial No. 88632909.

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The Y-Strap is used to treat a number of neck ailments
stemming from neuromuscular and skeletal issues. … The
Y-Strap is a simple device consisting of high strength nylon
and soft foam padding. [W]hen affixed to the base of the
skull and forehead, the device allows for a secure and snug
harness for decompressing the cervical spine.
Unlike most of the popular Y-Strap adjustment procedures,
Dr. Shoshany prefers to use the original intention and
adhere to the founding intention of the Pettibon system
that first developed the long axis traction treatment.7
● Clean Spine Chiropractic website (cleanspine.com)
Y STRAP DECOMPRESSION TREATMENT
Dr. Tyler Bigenho is one of the only Chiropractors in
California who performs the Y Strap Adjustment. It is not
for everyone, so Dr. Bigenho must complete a thorough
evaluation beforehand. If we decide it is necessary to use
the Y Strap, we will. …
The Y Strap is a device that fits around the base of the
skull/chin that allows for the spine to be stretched. This
type of “stretch” is called spinal traction. In other words,

7 July 16, 2020 Office Action (TSDR 19-20). In Dr. Shoshany’s January 20, 2020 press release
posted on businessinsider.com, Dr. Shoshany explains that the Y-Strap adjustment
traditionally has been called the Y-axis adjustment and it is a Pettibon technique. Id. at
TSDR 25.
Pettibon appears to be a reference to Pettibon System Chiropractic Equipment & Products.
Id. at TSDR 55.
Serial No. 88632909.

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the Y Strap allows us to “pull apart” the segments in your
spine to release any tension in them.8

C. Analysis
The evidence shows that the Y-Strap is a medical device used by chiropractors as
an alternative to traction to stretch one’s spine and decompress the vertebras. The Y-
Strap device resembles the letter “Y” and it works on the vertical or Y-axis aligned
with the spine. A consumer or prospective consumer for a stretching machine or
traction apparatus will immediately know the nature of Applicant’s product (i.e., it is
a Y-shaped strap) without the need of thought, imagination or extrapolation. A term
or word that merely describes the form or shape of a product falls under the
proscription of Section 2(e)(1) of the Trademark Act. Scanwell Labs., Inc. v. Dep’t of
Transp., Fed. Aviation Admin., 181 F.2d 1385, 179 USPQ 238, 241 (CCPA 1973) (V-
RING is merely descriptive of directional antennas, the primary components of which

8 Id. at TSDR 50.
Serial No. 88632909.

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were shaped in the form of a “v” and a “ring”); In re Walker Mfg. Co., 359 F.2d 474,
149 USPQ 528 (CCPA 1966) (CHAMBERED PIPE is merely descriptive of an exhaust
system consisting of a series of small tuning chambers); J. Kohnstam, Ltd. v. Louis
Marx & Co., 280 F.2d 437, 126 USPQ 362 (CCPA 1960) (MATCHBOX SERIES is
merely descriptive of toys sold in boxes having the size and appearance of
matchboxes); In re Gagliardi Bros., Inc., 218 USPQ 181 (TTAB 1983) (BEEFLAKES
is merely descriptive of frozen, thinly sliced beef); H.U.D.D.L.E, 216 USPQ at 358
(TOOBS, the phonetic equivalent of the word “tubes,” is merely descriptive of
bathroom and kitchen fixtures in the shape of tubes); Levi Strauss & Co. v.
Plushbottom & Peabody, Ltd., 212 USPQ 296 (TTAB 1981) (STRAIGHTS is merely
descriptive of straight legged jeans); In re Ideal Indus., Inc., 134 USPQ 416 (TTAB
1962) (WING NUT apt descriptive term for electrical connectors having winged
projections for leverage while screwing); In re Zephyr Am. Corp., 124 USPQ 464
(TTAB 1960) (V-FILE is merely descriptive of card filing device in which the opening
between the cards was in the form of a “v”). Likewise, the mark Y-STRAP used in
connection with the identified goods is merely descriptive of the shape of the goods.
Applicant contends “this analysis is fundamentally flawed as it erroneously takes
for granted that ‘Y-Axis Traction Strap’, and as a derivative, ‘Y-Strap’, is a
meaningful and significant term of art within the physical therapy space, to justify
the conclusion that the Mark is Descriptive of the Goods.”9 We did not take anything
for granted, nor did we make any assumptions. The above-noted evidence shows

9 Applicant’s Brief, p. 5 (4 TTABVUE 6).
Serial No. 88632909.

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chiropractors referring to either Applicant’s medical apparatus products or similar
apparatus as Y-Straps and that chiropractors use those products to make Y-Strap
adjustments.
Applicant asserts, without any evidence, that the above-noted websites refer to
Applicant’s products “or seemingly Applicant’s product.”10 “Attorney argument is no
substitute for evidence.” Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76
USPQ2d 1616, 1622 (Fed. Cir. 2005). See also Martahus v. Video Duplication Servs.
Inc., 3 F.3d 417, 27 USPQ2d 1846, 1849 (Fed. Cir. 1993) (“mere attorney arguments
unsubstantiated by record evidence are suspect at best”). It is preferable for an
applicant to submit information of this nature by means of sworn testimony. See In
re U.S. Tsubaki, Inc., 109 USPQ2d 2002, 2006-07 (TTAB 2014) (it is critical that
Examining Attorneys be provided with detailed information with sufficient
evidentiary support). See also Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir.
1980) (“Statements by counsel in briefs are not evidence.”); Markowitz Jewelry Co. v.
Chapal/Zenray Inc., 988 F.Supp. 44, 45 USPQ2d 1530, 1532 (S.D.N.Y. 1997)
(“Unsworn statements by counsel simply will not do.”).
Even if we consider counsel’s unsubstantiated statement, the third parties
referring to the Y-Strap and Y-Strap adjustments use those terms descriptively, not
as trademarks. Cf. In re Empire Tech. Dev. LLC, 123 USPQ2d 1544, 1564 (TTAB
2017) (“The relevant question is how the proposed mark COFFEE FLOUR is used the
articles.”) There is no indication anywhere in these websites that website owners are

10 Applicant’s Brief, p. 6 (4 TTABVUE 7).
Serial No. 88632909.

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using Y-Strap in a trademark sense to refer to the source of Applicant’s medical
apparatus. None of the third parties identifies Y-Strap as a trademark of Applicant.
None of the evidence of record suggests in any way that the term Y-Strap acts as
trademark identifying medical apparatus originating from Applicant.11
Finally, Applicant contends that the above-noted websites
… merely demonstrate the increasing ubiquity of
Applicant’s product and brand which Applicant has worked
hard to build. Applicant’s product is well known in the
industry and to this end, Applicant has obtained FDA
approval on its product, which is listed in the FDA
database under its proprietary name, Y-Strap. See
Attached Exhibit A.12 Applicant’s website has developed
the phrase Y-Axis Traction Strap and certain
informational articles on errant websites reference
Applicant’s product in conjunction with Applicant’s phrase
does not render the term, Y-Axis Traction Strap inherently
common and/or descriptive in this domain of inquiry.13
The renown of Applicant’s product in the industry is not relevant to whether Y-
STRAP is merely descriptive. First, the issue before us is whether Applicant’s mark
is merely descriptive, not whether Applicant’s medical apparatus is well known.
Second, the renown of Applicant’s mark Y-STRAP for medical apparatus is relevant
for determining whether that mark has acquired distinctiveness, not whether it is

11 As noted above, Dr. Steven Shoshany in Manhattan explains that the Y-Strap adjustment
is a Pettibon technique. However, there is nothing in the record that explains the Pettibon
technique or whether it has any connection to Applicant.
12 As discussed above, we do not consider Exhibit A because Applicant did not timely file it.
In any event, the fact that Applicant identified Y-STRAP as the “proprietary name” of its
medical apparatus in its FDA application does not ipso facto mean that it is not merely
descriptive. Applicant has not provided any evidence that the FDA makes a determination
regarding the validity of the purported proprietary name an applicant uses to identify its
product in an FDA application.
13 Applicant’s Brief, p. 6 (4 TTABVUE 7).
Serial No. 88632909.

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merely descriptive. With respect to whether a mark is inherently distinctive or merely
descriptive, we analyze where it lies along the generic-descriptive-suggestive-
arbitrary-fanciful continuum of words. Word marks that are arbitrary, fanciful, or
suggestive are “held to be inherently distinctive” because by their intrinsic nature
they identify a particular source. Wal-Mart Stores, Inc. v. Samara Bros., Inc.,
529 U.S. 205, 54 USPQ2d 1065, 1068 (2000). See also In re Chippendales USA, Inc.,
622 F.3d 1346, 96 USPQ2d 1681, 1684 (Fed. Cir. 2010) (“In general, trademarks are
assessed according to a scale formulated by Judge Friendly in Abercrombie & Fitch
Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ 759, 764 (2d Cir. 1976), which
evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’ ‘suggestive,’ ‘descriptive,’
or ‘generic.’”). Even if a mark is not inherently distinctive, it may acquire
distinctiveness if “in the minds of the public, the primary significance of a [mark] is
to identify the source of the product rather than the product itself.” Wal-Mart Stores,
54 USPQ2d at 1068.14
Finally, the fact that Applicant may have been the first user of the term Y-STRAP
does not justify registration if the evidence shows that the term is merely descriptive.
See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,
72 USPQ2d 1833, 1838 (2004) (trademark law does not countenance someone
obtaining “a complete monopoly on use of a descriptive term simply by grabbing it

14 Because Applicant is not seeking to register its mark under the provisions of Section 2(f)
of the Trademark Act, 15 U.S.C. § 1052(f) (acquired distinctiveness), the renown of the mark
Y-STRAP is irrelevant.
Serial No. 88632909.

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first”) (citation omitted); In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1514
(TTAB 2016).
Decision: The Section 2(e)(1) refusal to register Applicant’s mark Y-STRAP is
affirmed.