The Kay Medical Group for Cardiac, Vascular & Pulmonary Surgery

Trademark Trial and Appeal Board

Dec 28, 2001

No. 75726335 (T.T.A.B. Dec. 28, 2001)

12/28/01 Paper No. 9
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re The Kay Medical Group For Cardiac,
Vascular & Pulmonary Surgery
________

Serial No. 75/726,335
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Thomas I. Rozsa of Rozsa & Chen LLP for The Kay Medical
Group For Cardiac, Vascular & Pulmonary Surgery.

Maria-Victoria Suarez, Trademark Examining Attorney, Law
Office 102 (Thomas V. Shaw, Managing Attorney).
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Before Hohein, Hairston and Holtzman, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

The Kay Medical Group For Cardiac, Vascular &
Pulmonary Surgery seeks registration of the matter shown
below,

for “health care services, namely, diagnosis and treatment
of diseases of the heart and vascular system and the
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/726,335
2
pulmonary system, cardiovascular and thoracic surgery, and
pulmonary surgery.”1
The Trademark Examining Attorney has finally refused
registration on the ground that the drawing filed with the
application is not a substantially exact representation of
applicant’s mark as used in connection with applicant’s
services, as illustrated by the specimens of record. A
copy of the top portion of applicant’s web page, which was
submitted as a specimen, is reproduced below.

Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We affirm the refusal to register.
The Examining Attorney has set forth what appear to be
alternative arguments in support of the refusal to

1 Serial No. 75/726,335, filed June 10, 1999, based on use of the
mark in commerce, alleging first use and first use in commerce on
Ser No. 75/726,335
3
register. First, the Examining Attorney argues that the
specimens display two distinct marks, one being the
fanciful heart design and the other being the wording “THE
ART AND SCIENCE OF HEART CARE.” Thus, according to the
Examining Attorney, applicant seeks to register two marks
in a single application. Second, the Examining Attorney
argues that the mark in the drawing, which consists of the
fanciful heart design and the wording “THE ART AND SCIENCE
OF HEART CARE,” is an incomplete representation, i.e., a
mutilation, of the mark as used on the specimens.
According to the Examining Attorney, the applied-for mark
differs from the display of the mark on the specimens which
consists of the fanciful heart design, the wording “THE ART
AND SCIENCE OF HEART CARE” and the wording “THE KAY MEDICAL
GROUP FOR CARDIAC, VASCULAR & PULMONARY SURGERY.”
Applicant, in urging reversal of the refusal to
register, argues that the fanciful heart design is
sufficiently close to the wording “THE ART AND SCIENCE OF
HEART CARE” so as to constitute “one overall commercial
impression.” (Brief, p. 7). In particular, applicant
maintains that these elements appear at the top of its web
page in a horizontal line with each other. Further,

May 21, 1999. The words “HEART CARE” have been disclaimed apart
from the mark as shown.
Ser No. 75/726,335
4
applicant maintains that it “is not required to include its
business name [THE KAY MEDICAL GROUP FOR CARDIAC, VASCULAR
& PULMONARY SURGERY] as part of the overall service mark
sought to be registered in the application.” (Brief, page
7).
Trademark Rule 2.51(a)(1) provides, in part, that “the
drawing of the trademark shall be a substantially exact
representation of the mark as used on or in connection with
the goods[.]” As noted by the Board in In re Audi NSU Auto
Union AG, 197 USPQ 649, 651 (TTAB 1977), “[t]he words ‘the
trademark’ imply that there shall be one trademark shown in
the drawing.”
In this case, it is our view that as used on the
specimens of record, the fanciful heart design and the
wording “THE ART AND SCIENCE OF HEART CARE” do not create a
single or unitary commercial impression and therefore do
not constitute a single trademark. On the specimens, the
fanciful heart design appears in the top left portion of
applicant’s home page and the wording “THE ART AND SCIENCE
OF HEART CARE” appears in the top center thereof, directly
above the wording “THE KAY MEDICAL GROUP FOR CARDIAC,
VASCULAR & PULMONARY SURGERY.” Contrary to applicant’s
argument, we do not believe the fanciful heart design and
the wording “THE ART AND SCIENCE OF HEART CARE”, as used on
Ser No. 75/726,335
5
the specimens of record, are in sufficient proximity to
form a single mark. When “THE ART AND SCIENCE OF HEART
CARE” is observed by the average customer on applicant’s
home page, it is seen as part of the overall expression
“THE ART AND SCIENCE OF HEART CARE THE KAY MEDICAL GROUP
FOR CARDIAC, VASCULAR & PULMONARY SURGERY.” This case is
akin to In re Audi NSU Auto Union AG, supra, where the
applicant sought to be register AUDI FOX and design for
automobiles. In that case, there was space between AUDI
and FOX and design on the lid of the car’s trunk, and the
Board found that the matter sought to be registered did not
create one commercial impression.
Having found that the fanciful heart design and the
wording “THE ART AND SCIENCE OF HEART CARE” do not create a
single or unitary commercial impression, it is not
necessary to determine whether each of these elements is a
separate mark or whether the wording “THE KAY MEDICAL GROUP
FOR CARDIAC, VASCULAR & PULMONARY SURGERY” forms part of
the matter sought to be registered. Thus, we have not
considered the arguments of the Examining Attorney and
applicant with respect to these questions in reaching our
decision herein.
Decision: The refusal to register is affirmed.