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`THIS OPINION IS NOT A
`PRECEDENT OF THE TTAB
`
`Mailed: January 17, 2024
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`In re Mark Beveridge
`_____
`
`Serial No. 90647376
`_____
`
`
`Richard S. Ross, Esq.
`for Mark Beveridge.
`
`Nelson Snyder, Trademark Examining Attorney, Law Office 107,
`Leslie Bishop, Managing Attorney.
`
`_____
`
`
`
`Before Cataldo, Coggins, and Elgin,
`Administrative Trademark Judges.
`
`Opinion by Elgin, Administrative Trademark Judge:
`
`Mark Beveridge (“Applicant”) seeks registration on the Principal Register of the
`
`mark CUESZ (in standard characters) for the following services, as amended:
`
`Real time personal fitness training services including
`performance, nutritional, medical
`restorative and
`mindfulness personal
`fitness
`training and
`further
`
`
`
`

`

`Serial No. 90647376
`
`including conditioning and recovery strategies therefor to
`individual clients in International Class 41.1
`
`The Examining Attorney refused registration of the subject mark under
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`Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that it is merely
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`descriptive of the identified services.2 In response to the refusal, Applicant
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`represented: “The Applicant has no intention to provide prompting or reminders from
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`the instructor/trainer, now or in the future. The Applicant’s intention is to provide
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`physical fitness training services to clients to improve their athletic abilities.”3
`
`Thereafter, the Examining Attorney issued a refusal under Section 2(e)(1) on the
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`ground that the subject mark is deceptively misdescriptive of Applicant’s services and
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`maintained the ground of mere descriptiveness as an alternative ground for refusal.4
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`When the alternative refusals were made
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`final, Applicant requested
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`reconsideration. After the Examining Attorney issued a subsequent final office action,
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`Applicant again requested reconsideration.5 The Examining Attorney denied the
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`
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`1 Application Serial No. 90647376 was filed on April 15, 2021, under Section 1(b) of the
`Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
`intention to use the mark in commerce.
`
`2 Dec. 14, 2021 Office Action at TSDR 4-5. The concurrently issued refusal under Trademark
`Act Section 2(d), 15 U.S.C. § 1052(d), was later withdrawn based on cancellation of the cited
`mark. Feb. 5, 2022 Office Action at TSDR 3.
`
`Citations to the prosecution record refer to the downloadable .pdf version of the TSDR
`system. See In re Integra Biosciences Corp., 2022 USPQ2d 93, at *7 (TTAB 2022). Citations
`to the briefs in the appeal record refer to the Board’s TTABVUE docket system. See New Era
`Cap Co. v. Pro Era, LLC, 2020 USPQ2d 10596, at *2 n.1 (TTAB 2020).
`
`3 Jan. 7, 2022 Response to Office Action at TSDR 1.
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`4 Feb. 5, 2022 Office Action at TSDR 1.
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`5 Dec. 9, 2022 Subsequent Final Office Action; March 1, 2023 Request for Reconsideration.
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`Serial No. 90647376
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`second request for reconsideration in part as to the alternative refusals;6 Applicant
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`then appealed to the Board. The appeal is fully briefed.7
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`We affirm the refusal to register on the basis of deceptive misdescriptiveness, and
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`do not reach the alternative refusal based on mere descriptiveness.
`
`I. Deceptive Misdescriptiveness Applicable Law
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`Trademark Act Section 2(e)(1) prohibits registration on the Principal Register of
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`designations that are deceptively misdescriptive of the goods or services to which they
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`are applied, absent a showing of acquired distinctiveness under Trademark Act
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`Section 2(f), 15 U.S.C. § 1052(f).8 See, e.g., In re Hinton, 116 USPQ2d 1051, 1051-52
`
`(TTAB 2015) (finding “THCTea” deceptively misdescriptive of “tea-based beverages”
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`not containing THC); In re Shniberg, 79 USPQ2d 1309, 1312 (TTAB 2006) (finding
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`“SEPTEMBER 11, 2001” deceptively misdescriptive of history books and
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`entertainment services not pertaining to the events of September 11, 2001).
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`A term is considered deceptively misdescriptive if (1) the term misdescribes a
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`quality, feature, function, or characteristic of the goods or services with which it is
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`used; and (2) consumers would be likely to believe the misrepresentation. In re Dolce
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`Vita Footwear, Inc., 2021 USPQ2d 479, at *9 (TTAB 2021) (citations omitted); Hinton,
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`116 USPQ2d at 1052.
`
`
`
`6 Apr. 3, 2023 Denial of Request for Reconsideration.
`
`7 Applicant’s Brief and operative Reply Brief are at 6 TTABVUE and 11 TTABVUE,
`respectively. The Examining Attorney’s Brief is at 8 TTABVUE. We have given no
`consideration to Applicant’s original Reply Brief, at 9 TTABVUE, which exceeded the page
`limitation.
`
`8 Applicant does not seek registration under Trademark Act Section 2(f).
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`Serial No. 90647376
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`II. Discussion
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`A. Does the Proposed Mark Misdescribe the Identified Services?
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`“As to the first part of the test, a mark is misdescriptive when it is merely
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`descriptive, rather than suggestive, of a significant aspect of the [services] . . . which
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`the [services] . . . plausibly possess but in fact do not.” Dolce Vita Footwear, 2021
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`USPQ2d 479, at *9 (citing Hinton, 116 USPQ2d at 1052); In re Phillips-Van Heusen,
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`63 USPQ2d 1047, 1051 (TTAB 2005)).
`
`The test to determine whether a mark is merely descriptive is whether it
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`immediately conveys information concerning a significant quality, characteristic,
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`function, ingredient, attribute or feature of the product or service in connection with
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`which it is used, or intended to be used. See, e.g., In re Chamber of Com. of the U.S.,
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`675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) ((quoting In re Bayer AG,
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`488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); see also In re Oppedahl &
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`Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (quoting Est. of
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`P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920) (“A mark is merely
`
`descriptive if it ‘consist[s] merely of words descriptive of the qualities, ingredients or
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`characteristics of the goods or services related to the mark.”)). A mark need not
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`immediately convey an idea of each and every specific feature of the goods or services
`
`in order to be considered merely descriptive; rather, it is sufficient that the mark
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`describes one significant attribute, function or property of the goods or services.
`
`Chamber of Com., 102 USPQ2d at 1219 (citing In re Dial-A-Mattress Operating Corp.,
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`240 F.3d 1341, 1346 (Fed. Cir. 2001)); In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB
`
`1982) (citing In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973)).
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`Serial No. 90647376
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`The determination of whether a mark is merely descriptive must be made in
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`relation to the goods or services for which registration is sought. Chamber of Com.,
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`102 USPQ2d at 1219. In other words, we ask “whether someone who knows what the
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`goods and services are will understand the mark to convey information about them.”
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`Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374
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`(Fed. Cir. 2018) (quoting DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695
`
`F.3d 1252, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (internal quotation omitted)).
`
`We consider whether the mark CUESZ is merely descriptive of at least one service
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`listed in the class. In re Analog Devices, Inc., 6 USPQ2d 1808, 1810 (TTAB 1988),
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`aff’d, 871 F.2d 1097, 10 USPQ2d 1879 (Fed. Cir. 1989) (“[I]t is a well settled legal
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`principle that where a mark may be merely descriptive of one or more items of goods
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`[or services] in an application but may be suggestive or even arbitrary as applied to
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`other items, registration is properly refused if the subject matter for registration is
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`descriptive of any of the goods [or services] for which registration is sought.” (citations
`
`omitted)).9
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`A novel or misspelling of a word will not turn a descriptive word into a non-
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`descriptive mark. See, e.g., In re Quik-Print Copy Shops, Inc., 616 F.2d 523, 205 USPQ
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`505, 507 n.9 (CCPA 1980) (holding QUIK-PRINT, the phonetic spelling of “quick
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`print,” merely descriptive of printing and photocopying services because “[t]here is no
`
`
`
`9 Thus, Applicant’s argument that the Examining Attorney did not make any evidence of
`record showing that CUESZ (cues) describes Applicant’s other services, namely
`“performance, nutritional, medical restorative or mindfulness fitness training,” 6 TTABVUE
`11, is immaterial to our analysis.
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`Serial No. 90647376
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`legally significant difference here between “quik” and “quick.”); In re Hercules
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`Fasteners, Inc., 203 F.2d 753, 97 USPQ 355, 358 (CCPA 1953) (holding FASTIE,
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`phonetic spelling of “fast tie,” merely descriptive of tube sealing machines); In re
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`Calphalon Corp., 122 USPQ2d 1153, 1164-65 (TTAB 2017) (holding SHARPIN, the
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`phonetic equivalent of “sharpen,” merely descriptive of knife blocks with built-in
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`sharpeners). Here, Applicant does not dispute the Examining Attorney’s contention
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`that the subject mark CUESZ is a deliberate misspelling of the word “cues.”
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`“Evidence of the public’s understanding of [a] term . . . may be obtained from any
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`competent source, such as purchaser testimony, consumer surveys, listings in
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`dictionaries, trade journals, newspapers[,] and other publications.” In re Fallon, 2020
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`USPQ2d 11249, at *7 (TTAB 2020) (quoting Real Foods, 128 USPQ2d at 1374). “These
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`sources may include [w]ebsites, publications and use in labels, packages, or in
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`advertising materials directed to the goods [or services].” Id. at *7-8 (quoting In re
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`N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1710 (Fed. Cir. 2017) (internal
`
`quotation omitted)). “Evidence that a term is merely descriptive similarly may come
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`from an applicant’s own usage other than that found on its labels, packaging or
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`advertising materials.” In re Omniome, Inc., 2020 USPQ2d 3222, at *4 (TTAB 2019).
`
`To show that CUESZ (i.e., a novel or misspelling and aural equivalent of “cues”)
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`merely describes a significant aspect that Applicant’s identified services could
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`plausibly possess, the Examining Attorney submitted dictionary definitions of
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`Serial No. 90647376
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`“fitness” as “the state of being physically healthy or strong”10 and “conditioning” as
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`“the process of training that results in physical fitness.”11 He also relied on online
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`articles regarding the role of a fitness trainer in helping clients achieve physical
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`fitness.12 Finally, the Examining Attorney pointed to the promotional video made of
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`record by Applicant which uses Applicant’s subject mark in the advertising of
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`Applicant’s identified services, pronounces the marks as the word “cues,” and shows
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`individuals participating in various fitness activities.13 Based on this evidence, the
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`Examining Attorney argued the plain language meaning of Applicant’s services “real
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`time personal fitness training services including . . . conditioning . . . strategies
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`therefor to individual clients” encompasses physical fitness training and instruction
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`for such clients.14
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`Indeed, Applicant’s evidence of record confirms that the full scope of the recited
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`services includes physical fitness training. First, a printed brochure states that
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`Applicant provides
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`“precision-based approach
`
`to optimizing your
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`fitness
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`performance” featuring evaluations, blood tests, customized coaching through virtual
`
`
`
`10 August 24, 2022 Final Office Action at TSDR 4-5, from MACMILLAN DICTIONARY
`(macmillandictonary.com).
`
`11 Id. at TSDR 8, from THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
`(ahdictionary.com).
`
`12 Aug. 24, 2022 Office Action at TSDR 10-17.
`
`13 Dec. 9, 2022 Subsequent Final Office Action at TSDR 6-24 (screenshots from Applicant’s
`video).
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`14 8 TTABVUE 5-6.
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`

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`Serial No. 90647376
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`training sessions, nutrition consultations, and customized performance, mindful, and
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`other consultations.15 Second, a promotional video describes Applicant’s services as
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`a custom human fitness program, including four disciplines
`comprising performance, nutritional, medical restorative,
`and mindfulness fitness training, resulting in a well-
`rounded fitness program tailored to individual clients. As
`a member, you’ll be assigned a team of world-class fitness
`professionals, including medical professionals, all of whom
`will work cohesively for and with you. We remove the
`guesswork and provide a precision-based approach to
`optimizing fitness health. After we conduct a personal
`interview with you to learn your lifestyle, habits, and goals,
`we craft a personalized program to help you achieve those
`goals. CUESZ – providing a multidisciplinary custom
`human fitness program designed just for you to optimize
`your overall personal fitness health.16
`
`We turn next to the evidence of descriptiveness of “cues” in relation to these
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`services. The Examining Attorney made of record dictionary definitions of “cue” as “A
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`reminder or prompting” or “A hint or suggestion.”17 He argued that “cues” or “cueing”
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`is a feature of various types of physical fitness training, based on various online
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`articles and blog posts, some directed to consumers and some to professionals,
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`including those listed below (emphasis added):
`
`Cueing is a vital skill that every fitness professional
`should master. It
`is essential for coaching proper
`technique, and it creates a connection between you and
`your client, conveying how in tune you are to their
`
`15 July 26, 2022 Response to Office Action at TSDR 2.
`
`
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`16 See Nov. 9, 2022 Request for Reconsideration (video file). We have transcribed the video.
`
`17 Dec. 14, 2021 Office Action at TSDR 58-60, from THE AMERICAN HERITAGE DICTIONARY OF
`THE ENGLISH LANGUAGE (ahdictionary.com).
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`Serial No. 90647376
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`movement and performance . . . Here are five tips to
`improve your cues.18
`
`Square your hips. Tuck your tailbone. Zip your navel to
`your spine. Listening to your trainers is much like playing
`a game of “Simon Says.” But if you’re new to exercise or
`trying a workout for the first time, it’s not uncommon to get
`tangled in a trainer’s cues . . . Trainer cues . . . create
`awareness to movement . . . these prompts are intended to
`help you get the most out of your workout and prevent
`injury. Read on to learn the most common trainer cues and
`how to decode them.19
`
`The top ten corrective exercise cues that we give daily,
`while not exhaustive because there are dozens of cues for
`every exercise, are essential for just about every exercise
`possible.20
`
`A trainer can offer cues to help you get your body into the
`right position to ensure you are doing each move correctly
`(and safely).21
`
`Cueing for Different Learning Styles . . . Raising the arm
`or pointing
`to
`the
`foot are examples of visual
`cueing . . . The instructor is still required to explain what
`is expected of the participant while the visual cue is being
`given . . . It is advisable that the instructor cues the ‘move’
`first . . . it’s also called tactile or physical cueing and is
`used to teach proper movement patterns, as it trains their
`kinesthetic awareness. This is more often used in personal
`training . . . .22
`
`Modifications and alignment cues for the [yoga] poses will
`be provided throughout . . . .23
`
`
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`18 Id. at 72, from National Academy of Sports Medicine (nasm.org).
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`19 Id. at 61-62, from Daily Burn (dailyburn.com).
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`20 Id. at 65, from Mountain Life Fitness (mtnlifefitness.com).
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`21 Feb. 5, 2022 Office Action at TSDR 15, from Verywell (verywellfit.com).
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`22 Id. at TSDR 26-28, from NESTA (nestacertified.com).
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`23 Id. at TSDR 42, from Northern Michigan University (nmu.edu).
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`Serial No. 90647376
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`Your coach analyzes your results and communicates
`coaching cues and advice [remotely].24
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`7 Most Effective Personal Training Cues to Improve Client
`Movement . . . One of the aspects of “personal trainer
`language” aimed at modifying your client’s position, muscle
`activation, or movement is body cues . . . The four main
`reasons personal trainers use cues are to: Prevent injury,
`Activate key muscles, Improve position, Make the most of
`an exercise . . . In this article, we list some of the most
`common and effective movement cues and suggest when to
`use them with your clients.25
`
`Get Stronger Now with These Powerful Weightlifting Cues
`. . . A weightlifting cue is a simple reminder, usually in the
`form of a phrase, that directs your attention to a particular
`aspect of your exercise technique . . . Cues like this may
`seem obvious, trivial, or boring, but when used properly
`they can immediately boost your strength, fix seemingly
`intractable problems with
`your
`technique, and
`significantly reduce your risk of injury.26
`
`Thus, the Examining Attorney argued, “the mark’s sole term (properly spelled as
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`CUES) identifies a characteristic or feature of the identified services, namely, that
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`they
`
`involve
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`‘reminder[s], prompting, hint[s], or suggestion[s]’
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`from
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`the
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`trainer/instructor.”27 We find the evidence makes a prima facie case that “cues” is
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`merely descriptive of an aspect of Applicant’s physical fitness training services.
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`On the other hand, we find Applicant’s arguments and supporting evidence
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`traversing the refusal unpersuasive. Applicant argued the definition of “cue” has
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`
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`24 Id. at TSDR 51, from Crafted Coaching (crafted.coach).
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`25 Id. at TSDR 57-58, from AFPA (afpafitness.com).
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`26 Id. at TSDR 66-69, from Legion (legionathletics.com).
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`27 8 TTABVUE 6.
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`Serial No. 90647376
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`multiple meanings that do not describe the services at issue.28 However, “[I]t is well
`
`settled that so long as any one of the meanings of a term is descriptive . . . the term
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`may be considered to be merely descriptive . . . .” Dolce Vita Footwear, 2021 USPQ2d
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`478, at *13-14 (quoting In re Mueller Sports Med., Inc., 126 USPQ2d 1584, 1590
`
`(TTAB 2018)).
`
`We also do not find convincing Applicant’s argument that the USPTO does not
`
`view the term “cues” in educational contexts as descriptive. Applicant made of record
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`various online articles utilizing the term “cues” in connection with instruction in
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`various settings, such as the following (bolded for emphasis):
`
`A teacher’s overall instructional effectiveness depends
`heavily on how that teacher uses instructional cues. A cue
`consists of a word, phrase, or sentence that describes a
`particular aspect of a concept or skill. While cues most
`often focus on motor skills development in physical
`education, they may also target fitness, strategy, character
`development, or any other aspect of lessons teachers deem
`appropriate.29
`
`Using cues
`is one of many effective classroom
`management techniques. To initiate directions or signal for
`students to shift their focus from one state of attention to
`100% attention, it is necessary to use some attention cues.
`We can use any word, signal, or sound to signify that we
`need our students to be 100% attentive. However, over
`time, the cue comes to represent all that is involved within
`the expectation, related to what it means to demonstrate
`quality attention, and to take on the demeanor of a
`participant within a culture of listening.30
`
`28 6 TTABVUE 11 and n.3.
`
`
`
`29 Nov. 9, 2022 Request for Reconsideration at TSDR 25.
`
`30 Id. at TSDR 28.
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`Serial No. 90647376
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`Nonverbal cues are used to communicate with and
`ultimately educate students with disabilities.31
`
`Below are helpful cues teachers can share with children,
`so they are more successful at completing the skills that
`comprise the PE Central Skills Challenge.32
`
`I wrote recently, that good coaches, and managers also
`believe in the power of purposeful language. They use
`basic cues to reinforce their standards. Cues are
`short, meaning-rich words that convey meaning while
`imposing simplicity.33
`
`Against this background, Applicant also made of record the TESS records for five
`
`live registrations without disclaimers of the formative term “cue”:
`
`Reg. No. 3754186 for CUE for “Educational publications,
`namely, books, [ ] in the field of human resources”;
`
`Reg. No. 5113596 for CUE and design for “Educational
`services, namely, providing training to educators in the use
`of technology to advance student learning”;
`
`Reg. No. 5862496 for CUE for “Energy brokerage services;
`Brokerage of energy, namely, gas and electricity;
`Consultancy concerning financing of energy projects;
`Electronic payment services by which utility customers
`may apply money from various sources for payment of
`energy costs”;
`
`Reg. No. 4843936 for CUES for “consulting in the field of
`maintenance and repair of utility and industrial pipelines”;
`and
`
`Reg. No. 783373 for CUES for “services rendered to credit
`union organizations and their managing personnel in such
`
`
`
`31 Id. at 32.
`
`32 Id. at 36.
`
`33 Id. at 39 (emphasis in original).
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`Serial No. 90647376
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`areas as research, promotion, management, and public
`relations.”34
`
`These registrations are for goods and services far afield of Applicant’s physical
`
`fitness training services and have little probative value as to the meaning of “cue” as
`
`applied to these services. In any event, prior decisions and actions of other trademark
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`examining attorneys in registering other marks or approving marks for registration
`
`have little evidentiary value and are not binding upon the USPTO or the Board. See
`
`In re Cordua Rest. Inc., 823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed. Cir.
`
`2016) (existence of a registration for a standard character mark does not preclude a
`
`finding that the stylized form of the same mark is generic) (citing In re Nett Designs,
`
`Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior
`
`registrations had some characteristics similar to Nett Designs’ application, the PTO’s
`
`allowance of such prior registrations does not bind the Board or this court.”)). Each
`
`case is decided on its own facts, and each mark stands on its own merits. See In re
`
`Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221 (Fed. Cir.
`
`2009) (“Applicant’s allegations regarding similar marks are irrelevant because each
`
`
`
`34 Id. at TSDR 10-20. Applicant also made of record six cancelled registrations. A cancelled
`registration generally is evidence only of the fact that that registration issued, and therefore
`is not evidence that a mark is not descriptive. Cf. Bond v. Taylor, 119 USPQ2d 1049, 1054-
`55 (TTAB 2016) (cancelled registration does not establish that mark is weak); In re Kysela
`Pere et Fils Ltd., 98 USPQ2d 1261, 1264 (TTAB 2011) (“‘[D]ead’ or cancelled registrations
`have no probative value at all”). Thus, we accord the cancelled registrations submitted by
`Applicant little, if any, probative value. In addition, Applicant submitted two live
`registrations that we find even less relevant than those listed above because they bear no
`similarity to Applicant’s services, even broadly interpreted. See Nov. 9, 2022 Request for
`Reconsideration at 21, 24 (Reg. Nos. 5951803 (“Downloadable mobile applications for
`personal calendar management”) and 4576610 (“pagers”)).
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`Serial No. 90647376
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`application must be considered on its own merits.”); In re Binion, 93 USPQ2d 1531,
`
`1536 (TTAB 2009).
`
`Applicant also contended that we should find the mark CUESZ to be suggestive
`
`because it requires “some imagination, thought, and perception are required to arrive
`
`at the qualities or characteristics of the [services] . . . .”35 See In re Abcor Dev. Corp.,
`
`588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978) (discussing analysis of descriptive
`
`versus suggestive marks). We find that the unrebutted evidence submitted by the
`
`Examining Attorney shows that the relevant public will immediately understand the
`
`term CUESZ to refer to a feature or characteristic of Applicant’s recited physical
`
`fitness training services. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed.
`
`Cir. 1987) (the burden of coming forward with evidence in support of the applicant’s
`
`argument of suggestiveness was upon the applicant). In particular, the evidence
`
`demonstrates that no imaginative step is required for consumers to understand
`
`CUESZ (i.e., “cues”) as a feature of “Real time personal fitness training services
`
`including performance . . . and further including conditioning . . . strategies therefor
`
`to individual clients.”
`
`In view of the evidence of record as a whole, we find it plausible that that physical
`
`fitness training services could feature cues, rendering the mark CUESZ merely
`
`descriptive for Applicant’s “real time personal fitness training services including
`
`. . . conditioning . . . strategies therefor to individual clients.” Because Applicant
`
`35 6 TTABVUE 9.
`
`
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`Serial No. 90647376
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`represents that his training services do not involve cues,36 the misspelled term
`
`CUESZ misdescribes Applicant’s services under the first factor of the test. See
`
`Hinton, 116 USPQ2d 1053 (where applicant admitted its beverages did not include
`
`THC, mark THCTea misdescribes the goods).
`
`B. Would Consumers Likely Believe the Misrepresentation?
`
`For the second prong of the test under Section 2(e)(1), “[t]he Board [applies] the
`
`reasonably prudent consumer test in assessing whether a proposed mark determined
`
`to be misdescriptive involves a misrepresentation consumers would be likely to
`
`believe.” Id. at 1052 (citing R.J. Reynolds Tobacco Co. v. Brown & Williamson Tobacco
`
`Corp., 226 USPQ 169, 179 (TTAB 1985)); accord, Dolce Vita Footwear, 2021 USPQ2d
`
`479, at *9-10. The Examining Attorney contended the articles and blog posts
`
`discussed above also demonstrate
`
`that
`
`consumers would believe
`
`the
`
`misrepresentation because they show that “personal fitness training and conditioning
`
`services commonly involve reminders, prompting, hints, or suggestions from the
`
`instructor/trainer.”37 Applicant did not address this factor of the test.
`
` The uncontroverted evidence of record demonstrates that consumers are
`
`accustomed to encountering cues in personal fitness training and conditioning. It is
`
`likely, therefore, that the reasonably prudent consumer (i.e., someone who receives
`
`personal fitness training services) would believe that Applicant’s services, promoted
`
`
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`36 Applicant does not address in this appeal his representation during prosecution that his
`services will not
`involve providing prompting or reminders
`from
`the
`fitness
`instructor/trainer.
`
`37 Id. at 7-8.
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`

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`Serial No. 90647376
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`under the proposed CUESZ mark, would feature corrective exercise cues. The second
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`part of the test is satisfied.
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`III. Conclusion
`
`Having reviewed the evidence of record, we find that both parts of the deceptive
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`misdescriptive test have been satisfied. Accordingly, we find Applicant’s proposed
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`mark to be deceptively misdescriptive of the identified services within the meaning of
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`Trademark Act Section 2(e)(1).
`
`Because we affirm the refusal on this basis, we do not reach the alternative basis
`
`of refusal asserted by the Examining Attorney, i.e., that the mark is merely
`
`descriptive under Section 2(e)(1).
`
`
`
`Decision: The refusal to register Applicant’s proposed mark CUESZ on the ground
`
`that it is deceptively misdescriptive under Trademark Act Section 2(e)(1) is
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`affirmed.
`
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`