TriarQ Health, LLC

Trademark Trial and Appeal Board

Nov 3, 2020

88149951 (T.T.A.B. Nov. 3, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 3, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re TriarQ Health, LLC
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Serial No. 88149951
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Christopher A. Mitchell, Dickinson Wright PLLC,
for Fetal Life, LLC.
Karen Severson, Staff Attorney, Law Office 100,
Robert Lavache, Supervising Attorney.
_____

Before Cataldo, Lykos and Johnson,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:
Applicant, TriarQ Health, LLC, seeks registration on the Principal Register of the
mark ONE TEAM CARE (in standard characters), identifying “providing temporary
use of online non-downloadable cloud computing software for coordinating the
provision of healthcare among caregivers and patients,” in International Class 42.1

1 Application Serial No. 88149951 was filed on October 10, 2018, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intent
to use the mark in commerce.

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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that
ONE TEAM CARE merely describes a function or purpose of the identified services.
Applicant and the Examining Attorney filed briefs.
I. Mere Descriptiveness
In the absence of acquired distinctiveness,2 Section 2(e)(1) of the Trademark Act
prohibits registration on the Principal Register of “a mark which, (1) when used on
or in connection with the goods [or services] of the applicant is merely descriptive . . .
of them.” 15 U.S.C. § 1052(e)(1). A term is “merely descriptive” within the meaning
of Section 2(e)(1) if it “immediately conveys knowledge of a quality, feature, function,
or characteristic of the goods or services with which it is used.” In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)
(quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); see
also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015); In re
Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987). “On the other hand, if
one must exercise mature thought or follow a multi-stage reasoning process in order
to determine what product or service characteristics the term indicates, the term is
suggestive rather than merely descriptive.” In re Tennis in the Round, Inc., 199 USPQ
496, 498 (TTAB 1978); see also In re Gyulay, 3 USPQ2d at 1009.

2 Applicant has not made a claim of acquired distinctiveness. Accordingly, the question of
whether Applicant’s ONE TEAM CARE mark has acquired distinctiveness under Trademark
Act Section 2(f), 15 U.S.C. § 1052(f), is not before us.
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A term need only describe a single feature or attribute of the identified goods or
services to be descriptive. In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57
USPQ2d 1807, 1812 (Fed. Cir. 2001). Whether a mark is merely descriptive cannot
be determined in the abstract or on the basis of guesswork. Descriptiveness must be
evaluated “in relation to the particular goods [or services] 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 [or services] because of the
manner of its use or intended use.” Chamber of Commerce of the U.S., 102 USPQ2d
at 1219 (quoting In re Bayer AG, 82 USPQ2d at 1831). The question is not whether a
purchaser could guess the nature of the goods or services from the mark alone.
Rather, we evaluate whether someone who knows what the goods or services are will
understand the mark to convey information about them. DuoProSS Meditech Corp.
v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012);
In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002). To be merely
descriptive, a term must forthwith convey an immediate idea of a quality, feature,
function, or characteristic of the relevant goods or services with a “degree of
particularity.” The Goodyear Tire & Rubber Co. v. Cont’l Gen. Tire, Inc., 70 USPQ2d
1067, 1069 (TTAB 2008) (citing In re TMS Corp. of the Americas, 200 USPQ 57, 59
(TTAB 1978) and In re Entenmann’s Inc., 15 USPQ2d 1750, 1751 (TTAB 1990)).
In her brief,3 the Examining Attorney argues:

3 6 TTABVUE 4.
All citations to documents contained in the Trademark Status and Document Retrieval
(TSDR) database are to the downloadable .pdf versions of the documents in the USPTO TSDR
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The proposed mark is a combination of descriptive terms that
immediately conveys a feature of applicant’s services, namely, software
services that coordinate a “one team” method or strategy of care for
patients.

In support of this contention, the Examining Attorney introduced into the record
with her January 22, 2019 First Office Action4 dictionary definitions, including the
following, of the terms comprising the mark:
ONE – “being a single unit or thing; constituting a unified entity of two or more
components;”
TEAM – “a number of persons associated together in work or activity;”
CARE – “charge; supervision (under a doctor’s care); to give care (care for the
sick.)”
In further support of her contention, the Examining Attorney introduced into the
record with her January 22, 2019 First Office Action5 and November 1, 2019 Final
Office Action6 screenshots from the following seven websites from healthcare
providers and medical trade journals utilizing the term “one team” in the context of
various aspects of health care: (emphasis added)
industry-era.com/vendor-2017-healthcare-changing-healthcare-with-
tripleaim.php – A healthcare industry article discussing Applicant TRIARQ
HEALTH, and information provided by its Chairman, Mike Sappington. The
article states in part:

Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB
2018). References to the briefs on appeal refer to the Board’s TTABVUE docket system.
Before the TTABVUE designation is the docket entry number; and after this designation are
the page references, if applicable.
4 At 5-32.
5 At 33-41.
6 At 7-30.
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TRIARQ’s value-based services help [medical] practices leverage current
payer value based programming by working directly with payers and
providers to create unique value programs, by building patient-centered
engagement and care coordination solutions. On the other hand, TRIARQ’s
Transformations provides advisory and informatics services and is a strategic
catalyst for changing the way health care is paid and delivered. This is
achieved by inspired thought leaders and the application of their expertise
using One Team Care approach. Their holistic approach includes
performance management, technology and everything a practice needs to be
successful on the road to value-based care. “We offer an all-inclusive
partnership that includes expertise, software, services, and technologies that
enables practices to not only survive, but thrive in the transition to value-
based care. One complete Solution, One expert Partner, One simple Price,”
says Mike Sappington, Chairman, Managing Partner of TRIARQ.

thieme-connect.com – A healthcare industry article titled “One Team-Patient,
Family, and Health Care Providers: An Interprofessional Education Activity
Providing Collaborative and Palliative Care” discusses an approach to
building inter-professional education and practice opportunities in palliative
and hospice care.

modernhealthcare.com – In an article titled, “A ‘One Team’ Culture Makes
This Hospital a Success,” Steve Allen, MD, CEO of Nationwide Children’s
Hospital in Columbus, Ohio discusses the hospital’s listing on the U.S. News
and World Report Honor Roll of best children’s hospitals as a reflection of the
hospital’s “One Team” values.

nationwidechildrens.org – The same hospital describes its values by noting
that, as “one team,” members of the hospital staff:
Do the right thing
Create a Safe Day Every Day
Promote Health and Well Being
Are Agile and Innovative
Get Results

allonehealth.com/one-team
ONE TEAM
We bring together a team of doctors, nurses, health coaches, mental health
counselors, IT professionals, HR experts and wellness experts to ensure your
workforce is ready and able to perform. An experienced team of occupational
health certified physicians and nurses, in house MRO’s and master’s level
counselors; your AllOne Health® team consists of experts in the field of
occupational medicine, emergency medicine, public health and well-being.
Our physicians have expertise in all pertinent regulatory areas including:
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DOT, OSHA, PHSMSA, and HIPAA and take great pride in making a
difference to the employees and organizations we serve. Our dedication is
rewarded with many long-term relationships we’ve maintained with our
clients – some that date back to our founding in 1971.

nam.edu/wp-content/uploads/2018/09/Implementing-Optimal-Team-Based-
Care-to-Reduce-Clinician-Burnout.pdf 1 – a healthcare industry article that
states in part:
Team-based health care has been linked to improved patient outcomes and
may also be a means to improve clinician well-being. The increasingly
fragmented and complex health care landscape adds urgency to the need to
foster effective team-based care to improve both the patient and team’s
experience of care delivery. This paper describes key features of successful
health care teams, reviews existing evidence that links high-functioning
teams to increased clinician well-being, and recommends strategies to
overcome key environmental and organizational barriers to optimal team-
based care in order to promote clinician and patient well-being.

careoneteam.com
We are a clinical contact center providing Virtual Team Based Care: virtual
clinical staff using telehealth technology and unified communications in
partnership with traditional on-site healthcare delivery services.

Applicant essentially argues that its ONE TEAM CARE mark is ambiguous and
only suggests a function, feature or characteristic of its services. In support of its
position, Applicant introduced into the record with its July 22, 2020 Response to
Office Action7 copies of nine third-party registrations for ONE TEAM and ONE
TEAM formative marks issued to different entities and identifying a variety of goods
and services, including the following registrations identifying services most closely
related to Applicant’s services:
ONE TEAM. ONE FOCUS. LIFE identifying “medical
diagnosis and treatment of cancer;”

7 At 9-24.
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ONE CENTER. ONE FOCUS. ONE TEAM. identifying
“medical services, namely, medical imaging, surgery and
treatment services;” and
ONETEAM.BUILD identifying “providing temporary use
of on-line, non-downloadable software for use…in the field
of residential and commercial design and construction” and
related activities.
The Examining Attorney’s evidence, excerpted above, includes only four third-
party uses of the term “one team” in medical journals or journals discussing medical
practice and training, and use of ONE TEAM CARE as a mark in a trade journal
article about Applicant. The website excerpts from the Modern HealthCare and
Nationwide Children’s Hospital uses the term “one team” in the context of a
particular hospital’s culture and approach to pediatric care, which suggests the term
has some significance in connection with medical services. The excerpt from the
AllOne Health article uses the term “one team” in the context of occupational health
and employee assistance services provided by a range of healthcare professionals to
healthcare employees and organizations. The excerpt from the National Academy of
Medicine discussion paper mentions “team-based healthcare” in the context of
improved patient outcomes and also the well-being of healthcare providers. The
excerpt from the medical journal article from Thieme Seminars in Speech and
Language discusses training and coaching provided to nursing, medical and
communications sciences students in the field of end-of-life care. Finally, the Care
One Team article discusses a clinical contact center offering virtual team based care
in addition to on-site healthcare. This evidence shows limited use of the term “one
team” in connection with various services related to providing a multidisciplinary
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approach to medical and health related services and training. We observe that
Applicant’s services may be used, inter alia, to coordinate the provision of healthcare
among a “team” of caregivers to patients.
However, the evidence of record, consisting of dictionary definitions of the terms
comprising the mark and pages from seven medical and scientific internet websites,
falls short of demonstrating that ONE TEAM CARE merely describes a function,
feature or characteristic of Applicant’s software services in the field of healthcare
with the required degree of particularity. We acknowledge that the evidence shows
four instances of various aspects of health care and training being referred to
generally as provided by “one team.” However, we agree with Applicant that the
Examining Attorney’s evidence is insufficient to show that ONE TEAM CARE merely
describes a particular function or feature of Applicant’s services. At least three of the
journal articles are technical in nature and there is no indication regarding the extent
of their circulation or readership, even among medical or healthcare professionals
who might be the purchasers or end users of the identified services. “One team” is a
nebulous or, at worst, suggestive term in all of the articles in which it appears. The
only use of ONE TEAM CARE is as a mark in a trade journal article discussing
Applicant and its services. Such evidence certainly does not support a finding that
“one term care” is merely descriptive of the identified services. It is impossible from
the evidentiary record to determine whether use of “one team” or “one team care”
simply represents use of the term in context, or indicates use of the term to describe
some particular aspect of Applicant’s medical software services. As a result, the
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Examining Attorney’s slim record evidence fails to demonstrate that “one team care”
describes a significant feature, aspect or characteristic of the recited services or their
purpose such that the mark ONE TEAM CARE as a whole may be merely descriptive
of thereof. To the extent that Applicant’s software services may be used, inter alia, to
facilitate a “one team” approach to medical care, imagination or additional thought is
required to reach that conclusion. See, e.g., In re George Weston Ltd., 228 USPQ 57
(TTAB 1985) (SPEEDI BAKE for frozen dough found to fall within the category of
suggestive marks because it only vaguely suggests a desirable characteristic of frozen
dough, namely, that it quickly and easily may be baked into bread)
With regard to the third-party registrations introduced into the record by
Applicant, as is often noted by the Board and the courts, each case must be decided
on its own merits. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001); see also In re Kent-Gamebore Corp., 59 USPQ2d 1373 (TTAB 2001);
In re Wilson, 57 USPQ2d 1863 (TTAB 2001). This evidence nonetheless suggests that,
based upon the evidentiary records presented in the underlying applications, the
marks and services identified thereby were allowed to register. However, these
registrations are not dispositive on the issue under appeal herein.
Finally, to the extent that any “doubts exist as to whether [the] term is descriptive
as applied to the . . . [services] for which registration is sought, it is the practice of
this Board to resolve doubts in favor of the applicant and pass the mark to publication
with the knowledge that a competitor of applicant can come forth and initiate an
opposition proceeding in which a more complete record can be established.” In re
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Stroh Brewery Co., 34 USPQ2d 1796, 1797 (TTAB 1994); see also In re Merrill Lynch,
Pierce, Fenner, and Smith Inc., 828 F.3d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir.
1987) (citing In re Gourmet Bakers, Inc., 173 USPQ 565 (TTAB 1972)).”
Decision: The refusal to register Applicant’s mark under Section 2(e)(1) on the
basis that the mark ONE TEAM CARE is merely descriptive of the identified services
is reversed.