Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov

ESTTA Tracking number: ESTTA1078878

Filing date: 09/01/2020

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 88632909

Applicant Superior Balance S.L.

Applied for Mark Y-STRAP

CorrespondenceAddress

AVRAHAM S.Z. COHNCOHN LEGAL, PLLC325 W 38TH ST., SUITE 711NEW YORK, NY 10018UNITED STATESPrimary Email: abe@cohnlg.com212-203-0957

Submission Appeal Brief

Attachments Y-STRAP EX PARTE APPEAL BRIEF FINAL.pdf(1125192 bytes )

Filer's Name Avraham S.Z. Cohn

Filer's email abe@cohnlg.com

Signature /Avraham S.Z. Cohn/

Date 09/01/2020

Application Serial No. 88632909 Appeal Brief

1

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

__________________________________

Applicant: SUPERIOR BALANCE S.L.

Mark: Y-STRAP

Serial No.: 88632909

Filing Date: September 26, 2019

Examining Attorney: Dezmona Mizelle-Howard

Law Office: 110

APPLICANT’S EX PARTE APPEAL BRIEF

Application Serial No. 88632909

Appeal Brief

2

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………….… 3

STATEMENT OF THE CASE…………………………………….…. 4

THE TRADEMARK

APPLICATION………......……………………………………....….… 4

ARGUMENT…………………………………………..…………….… 4

A. The Link Between the TM and the Goods/Services is

Ambiguous, Limited, and Non-Descriptive…………………………….. 4

B. Applicant’s Mark is Suggestive and Not Descriptive…………... 7

CONCLUSION……………………………………………………….…8

EXHIBITS

Application Serial No. 88632909

Appeal Brief

3

TABLE OF AUTHORITIES

Cases

In re Bayer, 488 F.3d at 964, 82 USPQ2d at 1831………………………….………… 5,7

In re Chamber of Commerce, 675 F.3d at 1300, 102 USPQ2d at 1219…………...….. 5,7

In re Geo. A. Hormel & Co., 218 USPQ 286, 287 (TTAB 1983) ……………………….8

In re Grand Metropolitan Foodservices, 30 USPQ2d at 1976…………………………..8

In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987)…….……….… 5,7

In re MBNA America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir.

2003)……………………………………………………………………………………..5

In re Microsoft Corp., 68 USPQ2d 1195, 1200-1 (TTAB 2003) ………………...……..8

In re Plus Products v. Medical Modalities Associates, Inc., 211 USPQ 1199, 1204-1205 (TTAB

1981) ………………………….…………………………………………………………5

In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983)………………………………..……7

In re Tennis in the Round, Inc., 199 USPQ 496, 498 (TTAB 1978)……………………7,8

In re TMS Corp. of the Americas, 200 USPQ 57, 59 (TTAB 1978) ………………...….8

In re Universal Water Sys., Inc., 209 USPQ 165, 166 (TTAB 1980)………………...…7

Other Authorities

15 U.S.C. §1052(e)(1)……………………………………………………………….…..4

TMEP § 1209.01(b)…………………………………………………………….…….………..4

Exhibits

Exhibit A

Exhibit B

Application Serial No. 88632909

Appeal Brief

4

STATEMENT OF THE CASE

The present brief is in response to the Final Office Action dated July 16, 2020, issued for

U.S. Serial No. 88632909 (“Application”) for the Mark Y-STRAP (“Mark”). The Examining

Attorney (EA) has refused registration under Section 2(e) on the grounds that the applied-for mark

purportedly merely describes a feature/purpose/function of applicant’s goods. 15 U.S.C.

§1052(e)(1); see TMEP §1209.01(b). For the reasons discussed below, Applicant respectfully

disagrees with EA’s refusal of the applied for mark on the basis of Section 2(e) and requests

reconsideration of the Merely Descriptive objection.

THE TRADEMARK APPLICATION

Applicant applied for the trademark, Y-STRAP, in relation to a physical exercise device.

Specifically, the application covered the following;

CL 010 for “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”

ARGUMENTS

A. The Link Between the TM and the Goods is Ambiguous, Ill-Defined, and Non-Descriptive

The Examining Attorney (EA) has refused registration under Section 2(e) on the grounds

that applied-for mark merely describes a feature/purpose/function of applicant’s goods. A term is

“merely descriptive” within the meaning of Section 2(e)(1) if it “immediately conveys knowledge

Application Serial No. 88632909

Appeal Brief

5

of a quality, feature, function, or characteristic of the goods or services with which it is used.”

Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (quoting Bayer AG, 82 USPQ2d at 1831).

The thrust of the inquiry as to whether or not a mark is viewed as descriptive is the extent to which

the mark describes, with a “degree of particularity”, an ingredient, quality, characteristic, function,

feature, purpose of the specific good. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir.

1987); Plus Products v. Medical Modalities Associates, Inc., 211 USPQ 1199, 1204-1205 (TTAB

1981). Conversely, when the given mark requires imagination and perception in order to understand

the specific qualities and characteristics of the goods, the mark is suggestive. In re MBNA America

Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780 (Fed. Cir. 2003).

Presently, Applicant seeks registration of the mark Y-STRAP in standard characters for use

in connection with a physical exercise apparatus in CL 010. The Examining Attorney has alleged

that Applicant’s mark is merely descriptive because of a few pieces of Internet evidence which

purport to show that, “Y Strap refers to a chiropractic technique which features a ‘Y-Axis Traction

strap’ which is ‘used to stretch the neck by putting a long-axis stretch/movement (distraction force

through the spinal joints associated ligaments and muscles.’ See Office Action of July 20, 2020, p.

2. Because the mark, so the theory goes, describes the nature of the Goods sold, the trademark is

Descriptive.

However, 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. This conclusion is both ill conceived and woefully insufficient to justify a Section 2(e)

Descriptiveness refusal.

The Examining Attorney has effectively manufactured and relied upon the following false

syllogism:

Application Serial No. 88632909

Appeal Brief

6

1. Y-Axis Traction Strap is a common and well-understood term of art in the domain of

physical therapy

2. Y-Strap is a derivative of the commonly understood and used term of art, Y-Axis Traction

Strap

3. Because Y-Axis Traction Strap is Descriptive of the Goods sold, Y-Strap must also be

considered Descriptive of the Goods sold

Of course, the moment one understands that Y-Axis Traction Strap is not an inherently descriptive,

clinical, and accepted term of art within this space, the syllogism falls apart and “Y-Strap”, as a

derivative formulation of Y-Axis Traction Strap, cannot be considered Descriptive.

What evidence does the Examining Attorney invoke to demonstrate the commonality of Y-

Axis Traction Strap? The Examining Attorney in her Final Office Action has cited to several

websites, which make use of this terminology and show images of products that are either

Applicant’s product or seemingly Applicant’s product, but this does not in any way substantiate the

proposition that Y-Axis Traction Strap is an inherently common and/or Descriptive term in the

physical therapy space; certainly, none of the evidence proves that Y-Axis Traction Strap is a

clinical term by any stretch of the imagination and the referenced 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 this 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. Applicant’s website has developed the phrase Y-Axis Traction Strap and

that 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. Because Y-Axis Traction Strap is not inherently descriptive,

it would be wrong to suggest that it’s derivation, Y-Strap, is inherently descriptive.

Finally, it worth briefly noting that the Examining Attorney’s inclusion of screenshots of

the Amazon results page for the search, “Y Strap Neck Chiropractor” works against, rather than in

Application Serial No. 88632909

Appeal Brief

7

favor, of the Examining Attorney’s position that “Y Strap” is somehow a common and descriptive

term in the context of this industry. The results of the search, as demonstrated by the products

proposed by Amazon in the evidence file, represent a clumsy but ineffectual attempt by Amazon’s

search algorithms to find products that match the search description. Of course, there are no exact

matches and indeed none of the items represented in the Examining Attorney’s evidence even show

“Y Strap” mentioned in the descriptions of these represented products. And yet, if “Y-Strap” is

simply a common term of art which is ubiquitous and standard to the industry, surely at least some

of the products recovered by the Amazon search result would show these words. They don’t. Why?

Because Y-Strap is not a common term of art in this industry and for Applicant’s product in

particular.

B. Applicant’s Mark is Suggestive and Not Descriptive

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.” Chamber of Commerce of the U.S., 102 USPQ2d at 1219 (quoting Bayer AG, 82

USPQ2d at 1831). “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, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.

1987); In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983); In re Universal Water Sys., Inc., 209

USPQ 165, 166 (TTAB 1980).

Can it seriously be argued that Y-Strap immediately conveys knowledge of a quality,

feature, function or characteristic of the applied for Goods?

Even assuming for the moment that Y-Axis Traction Strap is Descriptive vis-à-vis the

Application Serial No. 88632909

Appeal Brief

8

Goods (which for the foregoing reasons Applicant argues would be a mistake to conclude), it does

not stand to reason that Y-Strap, which is a severe and reductionist variation of Y-Axis Traction

Strap, is Descriptive. Instead, Y-Strap is surely the sort of name which requires one to exercise

mature thought or follow a multi-stage reasoning process of the sort contemplated in In re Tennis

to understand what product is sold under the banner of the trademark. The applied-for-mark, “Y-

STRAP”, is simply, far too ambiguous and nebulous to reasonably claim that it immediately

describes the significant features and characteristics of its product with the requisite degree of

particularity to satisfy a Descriptiveness refusal. See In re TMS Corp. of the Americas, 200 USPQ

57, 59 (TTAB 1978). Given this accepted standard, Applicant respectfully submits that a sufficient

amount of thought and imagination is required to understand the nature of Applicant’s goods and

therefore the mark should be viewed as suggestive and not descriptive.

CONCLUSION

Trademark law demands that the burden is on the Office to marshal a prima facie case of

descriptiveness under Section 2(e). In re Microsoft Corp., 68 USPQ2d 1195, 1200-1 (TTAB 2003).

To meet this enormous burden, the Examining Attorney must present substantial evidence that the

mark is merely descriptive. Id. Critically, a “mere scintilla” of evidence of descriptive use is not

sufficient. Id. “[A]ny doubt with respect to the issue of descriptiveness should be resolved in

applicant’s behalf.” In re Grand Metropolitan Foodservices, 30 USPQ2d at 1976; see also In re

Geo. A. Hormel & Co., 218 USPQ 286, 287 (TTAB 1983). Given the lack of evidence submitted

by the Examining Attorney regarding the descriptiveness of Applicant’s trademark and the

foregoing arguments to the contrary, there is at the very least some doubt whether Applicant’s Y-

Strap mark is suggestive or merely descriptive. Trademark jurisprudence holds that doubts must be

resolved in Applicant’s favor. Applicant respectfully requests that its mark be approved for

Application Serial No. 88632909

Appeal Brief

9

publication without further delay.

Respectfully submitted,

Date: August 11, 2020 By: /Avraham S.Z. Cohn/

Avraham S.Z. Cohn

Cohn Legal, PLLC

325 w. 38th St., Suite 711 New York, NY 10018

EXHIBIT A

8/11/2020 Establishment Registration & Device Listing

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfRL/rl.cfm?lid=642073&lpcd=HST 1/2

New Search Back To Search Results

Proprietary Name: Y-StrapClassification Name: APPARATUS, TRACTION, NON-POWEREDProduct Code: HST6

Device Class: 1Regulation Number: 888.58507

Medical Specialty: OrthopedicRegistered Establishment Name: SUPERIOR BALANCE SL8

Registered Establishment Number: 3016445625 Owner/Operator: Superior Balance SL9

Owner/Operator Number: 10062384 Establishment Operations: Manufacturer

Links on this page:1й http:ккwwwйaddthisйcomкbookmarkйphp?u508=true&v=152&username=fdamain

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5й https:ккwwwйfdaйgovкmedicalиdevicesкdeviceиadviceиcomprehensiveиregulatoryиassistanceкmedicalиdeviceиdatabases

6й кscriptsкcdrhкcfdocsкcfPCDкclassificationйcfm?ID=3899

7й кscriptsкcdrhкcfdocsкcfCFRкCFRsearchйcfm?FR=888й5850

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9й кscriptsкcdrhкcfdocsкcfRLкrlйcfm?start_search=1&OwnerOperatorNumber=10062384

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8/11/2020 Establishment Registration & Device Listing

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfRL/rl.cfm?lid=642073&lpcd=HST 2/2

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5й https:ккwwwйfdaйgovкmedicalиdevicesкdeviceиadviceиcomprehensiveиregulatoryиassistanceкmedicalиdeviceиdatabases

6й кscriptsкcdrhкcfdocsкcfPCDкclassificationйcfm?ID=3899

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8й кscriptsкcdrhкcfdocsкcfRLкrlйcfm?rid=237918

9й кscriptsкcdrhкcfdocsкcfRLкrlйcfm?start_search=1&OwnerOperatorNumber=10062384

EXHIBIT B

8/11/2020 What is the Y-Strap tool? - Y-Strap

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COVID-19 Update: All orders are shipped on same or next business day with freecomplimentary Express Shipping. Read more

What is the Y-Strap tool? November 24, 2019 One Comment

Introduction: What is the Y-Strap tool?The Y-Strap tool is a stretching tool to perform manual spine decompression.

This spine stretching tool allows spine stretching by supporting the sub-occipital region of the skull to decompress the cervical, dorsal and lumber partsof the spine.

In this blog post we will talk about the Y-Strap and other tools used for spineand cervical decompression.

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Why is this stretching tool called a Y-Strap?The Y-Strap, or y-axis traction strap to be more specific, gets its name from thebody axis (Y-Axis) where the force takes place.

The Y-Axis, also known as vertical axis is aligned with the spine, head andlegs.

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After fastening the Y-Strap to the user’s head size with the small adjuster, thetwo “arms” lead to the handle bar of the y-strap that is used to perform the ystrap stretch in the y-axis of the user’s body.

 

Inversion spinal stretching by Teeter (EZ-UP INVERSION)

Spinal traction and decompressionPrivacy & Cookies Policy

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Spinal traction is a technique used to stretch the spine, by stretching it thediscs between the vertebrae get decompressed. The main goal of stretchingthe spine is relaxing muscles, increasing the intervertebral foramina gap (thespace between vertebrae) and reduce pressure on the nerves that exist in thespine.

There are many ways to decompress the spine, some of them are:

Gravity streching: hanging from the feet, inverted, to stretch the lowerand upper spine.Fully manual decompression: Using the hands to grip the back of thehead and the forehead to pull the head in the Y-Axis.Manual tool-aided decompression: Many tools are available to helpstretch the spine. To apply force they use rubber bands, weights, gravityor human strength to decompress the spine.Mechanical/powered spine decompression: Machines that are designedto execute spine decompression automatically and use electric power.

Manual vs Motorized mechanical tractionManual traction has been chosen for decades as it is simple to perform,requires no expensive equipment, and the person practicing the stretch can getcontinuous verbal and tactile feedback. It can, however, be physicallydemanding and it requires focusing on the task, while motorized solutions donot need human interaction during while stretching motion happens.

Motorized solutions use a harness to hold the hip or the head and generatecontinuous or intermittent traction. These options are usually significantly moreexpensive than manual alternatives.

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What is a chin strap and what is it neededfor?The Y-Strap  works on its own with most users but, as the anatomic differencesbetween humans are significant, some users with less-pronounced occipitalbone may find the Y-Strap to slip.

This is when the chin strap comes into play. The chin strap allows ourcustomers to be able to perform the Y-strap stretch on any occipital anatomy.

The chin strap is an extra piece of padded strap that is attached to the main Y-Strap via a reusable velcro system over the user’s chin to firmly stabilize theuser’s head within the Y-Strap.

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Buy Y-Strap

1 thought on “What is the Y-Strap tool?”

Dr. Joseph ArevaloJune 18, 2020

Great product!!!My patients love the Y-strap!!!Makes it so much easier on my hands as well.

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