To:
`
`Subject:
`
`Sent:
`
`Sent As:
`
`Attachments:
`
`Med-Aesthetic Solutions, Inc. (ndg@techmark.com)
`
`U.S. TRADEMARK APPLICATION NO. 87440645 - SALTFACIAL L'AVANTAGE - N/A - Request for
`Reconsideration Denied - Return to TTAB
`
`2/25/2019 10:36:10 AM
`
`ECOM116@USPTO.GOV
`
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`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`
`OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
`
`U.S. APPLICATION
`SERIAL NO. 87440645
`
`           
`
`MARK: SALTFACIAL
`L'AVANTAGE
`
`*87440645*
`
` 
` 
`

`

`GENERAL TRADEMARK
`INFORMATION:
`http://www.uspto.gov/trademarks/index.jsp
`
`VIEW YOUR APPLICATION FILE
`
`CORRESPONDENT
`ADDRESS:
`      
`NEIL D
`GREENSTEIN
`      
`TECHMARK
`      
`1968 S COAST
`HWY#1636
`      
`LAGUNA BEACH,
`CA 92651
`      
`APPLICANT: Med-
`Aesthetic Solutions, Inc.
`
`    
`
`CORRESPONDENT’S
`REFERENCE/DOCKET
`
`   
`
`NO:       
`
`  N/A     
`CORRESPONDENT
`
`E-MAIL ADDRESS:       
`
`ndg@techmark.com
`
`ISSUE/MAILING DATE: 2/25/2019
`
`REQUEST FOR RECONSIDERATION DENIED
`
`The trademark examining attorney has carefully reviewed applicant’s request for reconsideration and is denying the request for the reasons
`stated below.  See 37 C.F.R. §2.63(b)(3); TMEP §§715.03(a)(ii)(B), 715.04(a).  The following requirement made final in the Office action dated
`
`March 8, 2018, is maintained and continue to be final:  Disclaimer.  See TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`In the present case, applicant’s request has not resolved all the outstanding issue(s), nor does it raise a new issue or provide any new or
`compelling evidence with regard to the outstanding issue(s) in the final Office action.  In addition, applicant’s analysis and arguments are not
`persuasive nor do they shed new light on the issues.  Accordingly, the request is denied.
`
`EXAMINING ATTORNEY’S RESPONSE TO NEW ARGUMENTS AND EVIDENCE
`
`In an attempt to overcome this requirement, the applicant has amended its identification of goods to the following (additional limiting language
`bolded and underlined):
`            
`
`Class 10: Medical apparatus and instruments for abrading, peeling and resurfacing tissue, sold exclusively to licensed medical
`professionals; Medical apparatus, namely, light based devices for performing medical and aesthetic skin treatment procedures;
`phototherapeutic apparatus for medical purposes, namely, a LED (light emitting diode) light source for medical and aesthetic skin treatments,
`sold exclusively to licensed medical professionals; medical apparatus using ultrasound for performing medical and aesthetic skin treatment
`procedures, sold exclusively to licensed medical professionals
`
`Although the amendment does not limit the sale of every good in the identification of services to licensed medical professionals (Medical
`apparatus, namely, light based devices for performing medical and aesthetic skin treatment procedures), even if it had, this amendment would
`
`not overcome the disclaimer requirement.  
`
`In arguing that the “SALTFACIAL” portion of the mark is not merely descriptive, the applicant focuses on three themes: the proper consumers
`for determining descriptiveness are licensed medical professionals; two third-party registrations negate the disclaimer requirement and control
`
`the registrability of this mark; and the applicant’s goods do not perform beauty treatments for the face.    
`Proper Consumer to Determine Descriptiveness
`A.
`
`The applicant argues medical professionals are the proper consumer to determine descriptiveness based on the Federal Circuit’s holding in In re
`Bayer Aktiengesellschaft, 488 F.3d 960, 963-964; 67 U.S.P.Q. 2D (BNA) 1778, (Fed. Cir., 2007)(citing In re MBNA A, Bank N.A., 340 F.3d
`1328 (Fed. Cir. 2003)).  In MBNA, the court held, “a mark is merely descriptive if the ultimate consumers immediately associate it with a quality
`or characteristic of the product.”   Id. at 1332.  Additionally, the court held in MBNA that, “it is the perception of the ultimate consumer that sets
`the standards for determining mere descriptiveness.” Id at 1335 (citing Nett Designs, 236 F.3d at 1341 (Fed. Cir. 2001).  Contrary to the
`holdings in these cases, the applicant has conflated “purchaser” with “consumer.”   In MBNA, the Federal Circuit established the consumer, not
`the purchaser, determines descriptiveness.  In addition to the evidence provided in the previous Office Actions, the evidence attached here,
`
` 
`  
` 
` 
`  
` 
` 
` 
` 
`

`

`comprised of YouTube videos, videos posted on Facebook, third-party websites, or articles written by third-parties, further demonstrates the
`average person is the ultimate consumer of the applicant’s goods because the goods are used to perform beautifying face treatments on them.  
`Because the average person uses the applicant’s goods, the average person is the proper consumer to determine whether the “SALTFACIAL”
`portion of the proposed mark is merely descriptive when used in connection with the applicant’s goods.   Assuming arguendo that medical
`professionals are the relevant consumers to determine whether the “SALTFACIAL” portion of the proposed mark is merely descriptive, the
`applicant has not demonstrated medical professionals will not immediately know the applicant’s goods are for beautifying the face with salt.   A
`single declaration from an allegedly unbiased medial professional unaffiliated with the applicant does not establish medical professionals will
`not immediately know the purpose of the applicant’s goods from the proposed mark.   Conversely, on his LinkedIn post, Dr. Jason Emer clearly
`understands the applicant’s goods are for providing facials.   See attached evidence.
`
`“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).  The question is not whether someone presented only with the mark could guess what the goods are, but
`“whether someone who knows what the goods are will understand the mark to convey information about them.”   DuoProSS Meditech Corp. v.
`Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (quoting In re Tower Tech, Inc., 64 USPQ2d 1314,
`1316-17 (TTAB 2002)); In re Mueller Sports. Med., Inc., 126 USPQ2d 1584, 1587 (TTAB 2018).  In this case, the proper consumer is the
`average person because of the manner in which the applicant’s goods are used.   See  In re The Chamber of Commerce of the U.S., 675 F.3d
`1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing  In re Bayer Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d 1828, 1831
`(Fed. Cir. 2007)); TMEP §1209.01(b).  The evidence referenced above demonstrates consumers will understand the purpose of the applicant’s
`goods is to beautify the face using salt because the applicant or third-parties extoll the benefits of using the applicant’s goods to perform
`beautifying facial treatments with salt.  Since consumers will understand the purpose of the applicant’s goods when encountering the proposed
`
`mark, the “SALTFACIAL” portion of the proposed mark is merely descriptive.   
`Lastly, the applicant has cited the holding in Astra Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F. 2d 1201, 220 U.S.P.Q.
`786 (1st Cir. 1983) as a basis for claiming the “SALTFACIAL” portion of the proposed mark is not descriptive because medical professionals
`are sophisticated.  This case is not analogous to the case at bar because the analysis of sophisticated purchasers revolves around a likelihood of
`confusion inter partes dispute, not an ex parte merely descriptive refusal.  Essentially, the District Court in this case found that sophisticated
`consumers would not be confused as to the source of the parties’ goods; the case does not address descriptiveness.   Because Astra does not
`address descriptiveness, the applicant’s reliance on this case is misplaced.
`
`B.
`
`Third-party Registrations
`
`The applicant argues because the Office has permitted the registration of Registration Nos. 4317059, “HYDRAFACIAL” and 3341027,
`“HYDRAFACIAL MD” used in connection with medical instruments for peeling and resurfacing tissue, demonstrates “FACIAL” is not a
`descriptive term when used in connection with the applicant’s goods.   As already articulated in the Final Office Action, neither the examining
`attorney nor the Board are bound by prior decisions involving different records.  Even if the examining attorney or the Board were bound by
`
`previous decisions, the third-party registrations cited by the applicant are not analogous to the applicant’s mark.   
`
`First, third-party registrations featuring goods the same as or similar to applicant’s goods are probative evidence on the issue of descriptiveness
`where the relevant word or term is disclaimed, registered under Trademark Act Section 2(f) based on acquired distinctiveness, or registered on
`the Supplemental Register.  E.g., In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016) (quoting Inst. Nat’l des
`, 958 F.2d 1574, 1581-82, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992)); In re Box Solutions Corp., 79
`Appellations D’Origine v. Vintners Int’l Co.
`USPQ2d 1953, 1955 (TTAB 2006).  The attached third-party registrations use the term “FACIAL” in connection with goods that are the same
`as or similar to the applicant’s goods and all of these third-party registrants have disclaimed “FACIAL” or have registered their marks on the
`Supplemental Register.  Even though the applicant has pejoratively characterized the examining attorney’s actions as clearly substituting his own
`personal beliefs for evidence of what is perceived in the marketplace, what is clear from the attached third-party registrations is the applicant’s
`industry has acknowledged “FACIAL” is descriptive when used in connection with the applicant’s goods.
`
`  See TMEP 1213.05.  Obviously, the
`Second, the applicant’s citation of the “HYDRAFACIAL” marks are examples of unitary marks.
`applicant is already aware of this concept: why else would the applicant choose to display its mark as a compound word, rather than as two
`separate words?  See TMEP 1213.05(a).   Of the remaining marks on the register that have not disclaimed “FACIAL” when used in connection
`with goods that are the same or similar to the applicant’s goods, all of the marks have not disclaimed “FACIAL” because the wording is
`included in a non-descriptive unitary phrase. See attached third-party registrations.  Because the “HYRDAFACIAL” marks are non-descriptive
`unitary marks and the applicant’s mark is not, the applicant’s reliance on these marks as a basis for the registration of its mark is misplaced.
`
`Third, of the marks on the register that use “HYDRA” in connection with goods that are the same as or similar to the applicant’s goods, the
`registrants have not disclaimed “HYDRA” nor have they registered their marks on the Supplemental Register.   See attached third-party
`registrations.  Additionally, the Office has not required the disclaimer of “HYDRA” in Application No. 88108594.   Because the Office has not
`held “HYDRA” descriptive when used in connection with goods the same as or similar to applicant’s goods, “HYDRA” is distinctive and at
`least suggestive.  Since the “SALTFACIAL” portion of the applicant’s mark is descriptive and “HYDRA” is distinctive, the applicant’s
`reliance on any registration with the wording “HYDRA” used in connection with goods the same as or similar to the applicant’s goods as a
`rationale for overcoming the disclaimer requirement is wrong. 
`
` 
` 
` 
` 
` 
`

`

`C.
`
`Applicant’s Goods Do Not Perform Facials
`
`In addition to relying on the “HYDRAFACIAL” registrations to argue “FACIAL” is not descriptive, the applicant asserts its goods do not
`perform facials and its goods are operated by and under the direction of doctors and physicians.  In addition to the evidence in the previous
`Office Actions that establishes a “facial” is a beauty treatment of the face and the evidence attached in this Action already referenced above, the
`articles from Dermastore, High Style Life, LiveStrong.com, Threads Beauty Bar & Spa, and Trip Savvy all show a facial is a beatifying
`treatment of the face.  See attached evidence.  Moreover, the attached evidence from Amazingly Ageless, Henry Ford, Patient Pop, SLMA, and
`
`Very Well Health establishes allegedly specialized medi-spas provide beautifying treatments of the face.  
`
`The applicant argues that this evidence is not relevant because its goods perform deeper sophisticated medical procedures.  To advance this
`argument, the applicant provides an example of a person receiving an IV (intravenous) during a colonoscopy or brain surgery.  This example is a
`red herring or strawman argument as patients do not enter the hospital for the purpose of receiving an IV and a colonoscopy or brain surgery;
`patients enter the hospital to treat an illness that requires a colonoscopy or brain surgery.   The administration of an IV during a colonoscopy or
`during brain surgery is an ancillary procedure to support the intensive treatment.  Simply stated, unlike the consumers using the applicant’s
`goods for a beautifying treatment of the face, colonoscopy or brain surgery patients do not enter the hospital for the purpose of receiving an IV.  
`
`For these reasons, the applicant’s analogy is fallacious.    
`The applicant further argues its goods do not perform beautifying treatments of the face because the machine is operated by and under the
`direction of doctors and physicians.  While it is unclear whether the people operating the applicant’s goods in medi-spas or other office space
`in the cited evidence are all doctors or physicians, according to the American Med Spa Association instruments at medi-spas are not always
`operated by doctors or physicians.  See attached evidence.  Moreover, doctors or physicians are not always on-site in medi-spas.  Id.  Because the
`applicant’s goods will be used in medi-spas or the people operating the goods in the evidence do not hold themselves out as doctors or
`physicians, the applicant’s goods will not solely be operated by doctors or physicians.   Thus, limiting its identification of goods to doctors or
`
`physicians does not overcome this requirement.  
`Applicant’s Declarations Submitted as Exhibits
`D.
`
`i.                
`
`Declaration of Allan Danto, entity applicant’s CEO (Exhibit B)
`
`Mr. Danto claims the goods do not perform beatifying treatments of the face because its goods are for therapeutic purposes or treating the
`underlying causes of skin disorder symptoms, while facials are symptomatic treatments or only treat the symptoms of skin disorders.  In the last
`sentence of point 15 while opining on legal questions, Danto states, “it is perplexing to see how the “SALTFACIAL” mark, which requires
`several steps to understand a claimed reference medical procedures, on the dermal (not epidermal) skin layer (which is not considered a facial
`in the industry) is descriptive. [sic]  However, according to the patent application filed by Danto with WIPO, treating the epidermis is expressly
`claimed as a provision of Danto’s invention.   See attached cover pages from Google Patent showing patent applications with WIPO
`(WO2018022517A1), Taiwan (TW201808156A), and Canada (CA3031801A1) with priority claimed to US 62/494,005 or US 201662494005P,
`excerpts selected by the examining attorney from the WIPO patent, and full patent application with WIPO.   Figure 1 in the patent application
`next to the abstract matches the image of the goods on the applicant’s website.   See attached evidence.  As the abstract of Danto’s invention
`clearly states and as elaborated by Danto’s patent claims in the referenced excerpts, the applicant’s goods are for treating the epidermis and
`symptoms of skin disorders.  Because Danto has filed a utility patent application explicitly claiming its goods are used to treat the epidermis and
`symptoms of skin disorders, the statements proffered by Danto in his declaration that the applicant’s goods are not descriptive or that its goods
`do not treat the epidermis are not credible.  Thus, these statements should be given little weight when determining whether the “SALTFACIAL”
`portion of the proposed mark is merely descriptive.
`
`  In re Oppedahl &
`“A mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the applicant’s goods.”
`Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (citing In re Dial-A-Mattress Operating Corp., 240 F.3d 1341,
`1346, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)); TMEP §1209.01(b).  It is enough if a mark describes only one significant function, attribute, or
`property.  In re The Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); TMEP §1209.01(b); see
`In re Oppedahl & Larson LLP, 373 F.3d at 1173, 71 USPQ2d at 1371.  As the attached patent evidence demonstrates, the applicant’s goods are
`explicitly used to treat the epidermis and symptoms of skin disorders.  Because it is unnecessary to describe the full scope and extent of the
`applicant’s goods and “SALTFACIAL” describes a significant function or the applicant’s goods, “SALTFACIAL” is merely descriptive.
`
`Moreover, while applicant’s counsel has not officially amended the applicant’s dates-of-use in the application, Danto has clearly indicated the
`applicant “has been selling these goods to licensed medical professionals since 2015 2007.”   Danto’s statement is corroborated by Richard
`Asarch who claims he has used the applicant’s products for years.   See Asarch’s declaration (Exhibit A) at point 7.   The examining attorney
`presumes Danto has amended its use dates in anticipation of asserting a Section 2(f) claim of acquired distinctiveness should the Board
`determine the “SALTFACIAL” portion of the proposed mark is merely descriptive.   However, amending the use dates has had a corollary
`affect: by declaring the goods in the identification have been sold since 2007, Danto may have subjected any patents rights secured or sought in
`the United States or foreign jurisdiction to an invalidity proceeding or Office refusal.  See 35 C.F.R. §§102(a)(1), (b)(1); Paris Convention for the
`Protection of Industrial Property, Article 4.  The evidence from the applicant’s website and Danto’s LinkedIn profile, attached here, indicates
`
` 
` 
` 
` 
` 
` 
`

`

`the applicant intends to leverage its intellectual property portfolio to “capture significant market share in the exfoliation/non-invasive skin
`rejuvenation segment of the multi-billion dollar aesthetic medical market.”   By stating its goods have been sold since 2007, Danto has
`
`jeopardized the applicant’s domestic and international IP portfolio and strategy.   
`
`ii.              
`
`Declaration of Richard Asarch, MD (Exhibit A)
`
`Much of what Mr. Asarch contributes has already been addressed above: “SALTFACIAL” describes a significant function of the applicant’s
`goods.  However, some of Asarch’s contributions must be addressed.   First, it seems apparent Asarch, at a minimum, is unaware of Danto’s
`patent applications that explicitly claim the goods are for treating the epidermis.  Otherwise, it is incomprehensible that Asarch would risk his
`distinguished reputation or credibility with statements such as, “[applicant’s] device is clearly designed for and have features for treatments that
`are NOT facials but rather address other skin layers, I do not see how [the applicant’s] mark can merely describe something for which the
`device is not suitable” when Danto’s patent applications explicitly claim the applicant’s goods are for treating the epidermis.
`  Because Asarch
`does not appear aware of Danto’s patent application that explicitly claims the purpose of the goods is to treat the epidermis, Asarch’s
`
`statements regarding the function of the applicant’s goods should be given little weight.   
`Second, Asarch confirms that doctors and physicians are not the sole operators of the applicant’s goods as he states, “ My staff and I have
`use[d] the “SALTFACIAL” skin renewlal therapy device for medical procedures on a large number of patients….”  This statement controverts
`
`the applicant’s claim and identification amendment that its goods are only used by doctors and physicians.   
`
`Lastly, like applicant’s counsel, Asarch submits the same red herring or strawman argument.   Asarch states, “injections can be given for a
`number of reasons—an injection can be used to administer Botox or an injection can be given as a start to anesthesia for brain surgery.   But, that
`does not mean that Botox treatments are the equivalent of brain surgery.”   Like discussed above, patients do not seek Botox or brain surgery for
`how the good is administered or service is  accomplished; any injections used in administering Botox or performing brain surgery are ancillary
`to the procedure a patient is seeking.  Simply put, patients do not present themselves for injections, they present themselves for the application of
`
`the goods or the medical treatment itself, regardless of the administering method.  For these reasons, Asarch’s analogies are fallacious.   
`
`iii.            
`
`Declaration of Jessica Relyea, Customer Experience Manager for Applicant (Exhibit C)
`
`Ms. Relyea claims, “the market for therapeutic treatments from licensed medical professionals is very different from superficial symptomatic
`treatment such as facials.”   She continues by stating, “I currently train people about the “SALTFACIAL” device” and “work with…Medical
`Spas.”   Given the attached evidence demonstrates medi-spas commonly perform cosmetic treatments that overlap with traditional spas, such as
`
`facials, it is uncertain how Relyea arrived at the conclusion that medi-spa services are in a different market than traditional spa services.  
`
`Further, while Relyea may train plastic surgeons and dermatologists on how to use the applicant’s goods, Relyea trains people at medical spas,
`which do not necessarily employ physicians.  Her statement is qualified by stating medical spas have medical directors and these directors are
`typically physicians.  This statement has two implications.  First, it does not state medical directors are the only people at medi-spas that operate
`the applicant’s goods, and second, it does not state all medical directors are physicians.   Because this language allows for people other than the
`medical directors to operate the applicant’s goods or indicates that not all medical directors are physicians, the applicant’s goods are not limited
`
`to use by doctors or physicians.  
`
`Because the evidence of the record demonstrates the applicant’s goods perform beautifying treatments on the face and the ultimate consumer is
`the average person, “SALTFACIAL” is merely descriptive of the applicant’s goods.
`  Thus, the requirement for a disclaimer is continued and
`maintained under Section 2(e)(1) of the Trademark Act.
`
`If applicant has already filed a timely notice of appeal with the Trademark Trial and Appeal Board, the Board will be notified to resume the
`appeal.  See TMEP §715.04(a).
`
`If no appeal has been filed and time remains in the six-month response period to the final Office action, applicant has the remainder of the
`response period to (1) comply with and/or overcome any outstanding final requirement(s) and/or refusal(s), and/or (2) file a notice of appeal to
`the Board.  TMEP §715.03(a)(ii)(B); see 37 C.F.R. §2.63(b)(1)-(3).  The filing of a request for reconsideration does not stay or extend the time
`
`for filing an appeal.  37 C.F.R. §2.63(b)(3); see TMEP §§715.03, 715.03(a)(ii)(B), (c).   
`
`/Ryan Cianci/
`Ryan Cianci
`Trademark Examining Attorney
`Law Office 116
`571-270-3721
`ryan.cianci@uspto.gov
`
` 
` 
` 
` 
`  
`

`

` 
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`Med-Aesthetic Solutions, Inc.
`Published on Jan 17, 2017
`
`1111+1ifr"'
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`Complete Anti-Aging Facial
`Treatment
`TryHealthier
`Recommended for you
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`httpsJfwww_youtube_com/watch?v=dGLZ2YzJVSQ
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`11:42:11 AM 212012019
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`'The goal of any dermabrasion is to rub off that outer
`layer of dead skin_"
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`Dr Steven Jepson Macrodermabrasion - The SaltFacial
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`228 views
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`11:50:48 AM 212012019
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`https:l/www_youtube .comtwatch?v= 1 ss _a 7 cpgp8
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`11:53:44 AM 212012019
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`"sound waves are used to drive
`vitamins into the more receptive
`skin. Consequently, not only
`getting rid of t he dead layer, but
`also adding a bunch of vitamins
`into the skin_ The end result is,
`soft, subtle, brig hter, beautiful
`skin_"
`
`Dr Steven Jepson Macrodermabrasion - The SaltFacial
`
`228 views
`
`1ilt 1
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`411 0
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`Med-Aesthetic Solutions, Inc.
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`https:l/www_youtube .comtwatch?v= 1 ss _a 7 cpgp8
`
`11:55:08 AM 212012019
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`The SaltFacial Skin Renew Treatment by Med-Aesthet ic Solutions, Inc.
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`864 views
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`WE Will GUESS YOUF 1 37
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`Med-Aesthet