NOWDiagnostics, Inc.

This Opinion is Not a
Precedent of the TTAB

Mailed: March 22, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re NOWDiagnostics, Inc.
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Serial No. 87450474
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Bryan P. Stanley of Kutak Rock LLP,
for NOWDiagnostics, Inc.

Kim Teresa Moninghoff, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.

_____

Before Kuhlke, Kuczma and Pologeorgis,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

NOWDiagnostics, Inc. (“Applicant”) seeks registration on the Principal Register

of the standard character mark QUICK DETECT for “Diagnostic test kits consisting

primarily of medical diagnostic immunoassays and complement diagnostic reagents

for testing of bodily fluids, primarily whole capillary blood, for medical testing of a

variety of conditions, ailments and diseases, namely, skin and food allergies,

sexually transmitted diseases, for use as a screening for thyroid dysfunction, human

chorionic gonadotropin, staph infection, malaria, autoimmune diseases, alpha fetal

protein dengue, and for testing common infectious conditions such as strep throat,
Serial No. 87450474

influenza, respiratory syncytial virus, mononucleosis, and pink eye, and for use in

diagnosing cardiovascular conditions,” in International Class 5.1

The Trademark Examining Attorney has refused registration of Applicant’s

mark on the ground that QUICK DETECT is merely descriptive of Applicant’s

goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1).

When the refusal was made final, Applicant appealed. The Examining Attorney

and Applicant filed briefs. We affirm the refusal to register.

Mere Descriptiveness

A mark is deemed to be merely descriptive of goods or services, within the

meaning of Section 2(e)(1), if it immediately conveys information of a quality,

feature, function, or characteristic of the goods or services in connection with which

it is used, or intended to be used. In re Chamber of Commerce of the U.S., 675 F.3d

1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); see also In re TriVita, Inc., 783 F.3d

872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015). The determination of whether a mark

is merely descriptive must be made “in relation to the goods 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 because of the manner of

its use or intended use.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d

1828, 1831 (Fed. Cir. 2007) (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ

215, 218 (CCPA 1978)). It is not necessary, in order to find a mark merely

1Application Serial No. 87450474, filed on May 15, 2017, based upon Applicant’s allegation
of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b).

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Serial No. 87450474

descriptive, that the mark describe each feature of the goods or services, only that it

describe a “single feature or attribute” of the goods or services. Chamber of

Commerce of the U.S., 102 USPQ2d at 1219; In re Gyulay, 820 F.2d 1216, 3 USPQ2d

1009, 1010 (Fed. Cir. 1987).

The Examining Attorney asserts that the proposed mark QUICK DETECT

merely describes “the applicant’s medical test kits as ascertaining the presence of

indicators for a variety of conditions, ailments, and diseases in blood tested by the

kits, within a short period of time.” 6 TTABVUE 8.

In support of her position, the Examining Attorney relies on third-party website

excerpts showing use of the terms “quick” and “detect” (emphasis added) to describe

characterics of blood tests. 6 TTABVUE 8-13. A few examples are shown below:

A simple quick test at home avoids a trip to the doctor’s
office, which can take a large chunk of time. . . . [T]he
increasing desire of consumers to detect potential health
problems early is making the home testing trend more
desirable. . . . The test shows whether you have ever
contracted the hepatitis C virus, unless you were exposed
in the previous 6 months, in which case it may be too
early to detect the virus. . . . In fact, up to 1 in 12 infected
people may test negative at first, meaning that the test
did not detect the antibody when it was present. . . .
Home testing for HIV provides fairly quick and
anonymous results.2

This test uses a blood sample to detect an allergic
reaction to 15 basic food allergens that are common. . . .
Our quick blood test allows us to use your blood sample

2 February 23, 2018 Office Action at 5-7, Michael Woods, MD, The Benefits and Drawbacks
of Home Test Kits, (https://medicalcitysurgeryfortworth.com/hl/?/14169/Home-
testkits&com.dotmarketing.htmlpage.language=1). References to the record are to the
Trademark Status and Document Retrieval system (TSDR).

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Serial No. 87450474

to test for allergic reactions externally, rather than
causing unnecessary and painful reactions by introducing
potential allergens to your system.3

Home use tests allow you to test for some diseases and
conditions at home. These tests are cost-effective, quick,
and confidential. Home use tests can help: detect
possible health conditions when you have no symptoms,
so you can get early treatment.4

The boy was one of 79 children tested . . . to detect and
prevent lead poisoning in local neighborhoods. . . . To
date, the program has tested 542 children at seven events
since 2010, detecting elevated lead levels in 10 children
using a quick blood test that requires a quick prick on
each child’s finger.5

A quick blood test, the exam measures the level of
prostate-specific antigen, a protein produced by cells of
the prostate gland. . . . A PSA test is one of the only ways
to detect prostate cancer in its early stages.6

A test that soon could be available to help millions of
people worldwide determine whether they have the Zika
virus could rely on research done at a small lab in a
Westbrook industrial park. Unlike current tests that take
weeks to process, the new tests would give patients quick
results, potentially within 20 minutes. . . . Aside from the
length of time to get results, an antibody test would be
better than the current tests that use ribonucleic acid, or
RNA, to detect the Zika virus in blood, [Meghan] May,
[an associate professor of biomedical sciences at the

3 February 23, 2018 Office Action at 12-13, 22, HealthLabs.com, Allergy Testing
(https://www.healthlabs.com/allergy-testing); and HealthLabs.com, Basic Food Allergy Test
Panel (https://www.healthlabs.com/basic-food-allergytesting? coupon=10offorder) February
23, 2018 Office Action at 12-13, 22.
4 February 23, 2018 Office Action at 4, U.S. Food and Drug Administration, Home Use
Tests,(https://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/InVitroDiagnost
ics/Home UseTests/).
5February 23, 2018 Office Action at 1, Screening Detects High Lead Level in Boy, SAN
DIEGO UNION-TRIB., Feb. 28, 2018, at B2.
6February 23, 2018 Office Action at 1, Lillian Rizzo, News Fight vs. Cancer of Prostate 11
Yrs. Strong, N.Y. DAILY NEWS, July 3, 2011, at Sports 25.

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Serial No. 87450474

University of New England,] said. She said the RNA tests
for Zika result in too many false negatives, in which the
test came back negative when the patient actually had
the virus. That’s partly because the Zika virus is
constantly evolving, making it difficult to detect with the
RNA tests, she said.7

The common use of the words “quick” and “detect” in connection with diagnostic

tests is not surprising. The definitions of “quick” as “done or happening in a short

time”8 and “detect” as “[t]o discover or ascertain the existence, presence, or fact of”9

are both desirable attributes of medical diagnostic kits. Even Applicant’s website

uses a form of the word “detect” to describe attributes of its other diagnostic kits, as

shown below:

The ADEXUSDx hCG Test is an immunoassay used for
the qualitative detection of human chorionic
gonadotropin in human whole blood, plasma, or serum
and is indicated as an aid for health care professionals in
the diagnosis of early pregnancy.10

This record clearly shows that QUICK DETECT immediately, without doubt,

describes a feature of the diagnostic kits, namely, that they quickly detect the

indicators for various diseases and conditions.

Applicant’s arguments do not persuade us of a different result. First, the

Examining Attorney did not inappropriately dissect the mark in her analysis. It is

7February 23, 2018 Office Action at 1, Joe Lawlor, Westbrook Lab Conducts Zika Research,
MORNING SENTINEL, Sep. 30, 2016.
8 August 17, 2017 Office Action at 2, MACMILLAN DICTIONARY (2017)
(http://www.macmillanditionary.com).
9August 17, 2017 Office Action at 3, THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (5th ed. 2018) (https://wwww.ahdictionary.com).
10August 17, 2017 Office Action at 5, NOWDiagnostics (http://nowdx.com/adexusdx-h-fabp-
test).

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Serial No. 87450474

well-settled that it is appropriate to consider the significance of each element

separately as part of the process of evaluating the mark as a whole. DuoProSS

Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753,

1756-57 (Fed. Cir. 2012). Moreover, the combination of the two words does not

create a new and unique commercial impression. There is nothing incongruous or

unique by combining the words “quick” and “detect” in the context of medical

diagnostic test kits. Id. (SNAP SIMPLY SAFER merely descriptive for “medical

devices, namely, cannulae; medical hypodermic, aspiration and injection needles;

medical, hypodermic, aspiration and injection syringes”). We also see no error in the

Examining Attorney’s reference to Applicant’s website and the use of a different

form of the word “detect” namely “detection.” It simply adds to the weight of the

evidence showing use of the word “detect” in its various forms to convey the same

meaning in relation to Applicant’s goods.

Applicant’s argument that “consumers would not immediately know that QUICK

DETECT identifies medical diagnostic tests” is misplaced. As noted above, in our

analysis of the proposed phrase QUICK DETECT we must consider “the context in

which it is being used, and the possible significance that the term would have to the

average purchaser of the goods because of the manner of its use or intended use.”

Chamber of Commerce of the U.S., 102 USPQ2d at 1219. Thus, we must consider

the perception of the consumers, who know what Applicant’s goods are. That is the

context in which we determine the meaning of QUICK DETECT: in relation to

“Diagnostic test kits consisting primarily of medical diagnostic immunoassays and

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Serial No. 87450474

complement diagnostic reagents for testing of bodily fluids, primarily whole

capillary blood, for medical testing of a variety of conditions, ailments and diseases,

namely, skin and food allergies, sexually transmitted diseases, for use as a

screening for thyroid dysfunction, human chorionic gonadotropin, staph infection,

malaria, autoimmune diseases, alpha fetal protein dengue, and for testing common

infectious conditions such as strep throat, influenza, respiratory syncytial virus,

mononucleosis, and pink eye, and for use in diagnosing cardiovascular conditions.”

Moreover, the fact that “a term may have other meanings in different contexts is

not controlling.” In re Franklin Cnty. Historical Soc’y, 104 USPQ2d 1085, 1087

(TTAB 2012); see also In re RiseSmart Inc., 104 USPQ2d 1931, 1933 (TTAB 2012);

In re Chopper Indus., 222 USPQ 258, 259 (TTAB 1984). Here, consumers would

immediately know that Applicant’s medical diagnostic tests are quick to detect

indicators for diseases or conditions.

Applicant argues that “mental gymnastics” are needed to understand the

meaning because QUICK DETECT is not in a grammatically correct form; however,

we do not perceive such an incongruous or unique arrangement by the words

QUICK DETECT to require multi-step reasoning to understand the direct meaning.

Words do not have to be in their correct form to be merely descriptive. In re ING

Direct Bancorp, 100 USPQ2d 1681, 1690 (TTAB 2011) (PERSON2PERSON

PAYMENT generic for direct electronic funds transfers); In re Carlson, 91 USPQ2d

1198, 1203 (TTAB 2009) (URBANHOUZING, in standard character form, would be

perceived by consumers as the equivalent of the descriptive term URBAN

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Serial No. 87450474

HOUSING, rather than as including the separate word ZING); In re Ginc UK Ltd.,

90 USPQ2d 1472, 1475 (TTAB 2007) (“The generic meaning of ‘togs’ not overcome

by the misspelling of the term as TOGGS. . .”); and In re Hubbard Milling Co., 6

USPQ2d 1239 (TTAB 1987) (holding MINERAL-LYX generic for mineral licks for

feeding livestock); see also In re Quik-Print Copy Shop, Inc, 616 F.2d 523, 205 USPQ

505, 507 n.9 (CCPA 1980) (QUIK in QUIK-PRINT phonetic equivalent for

“QUICK”); In re Hercules Fasteners, Inc., 203 F.2d 753, 97 USPQ 355 (CCPA 1953)

(FASTIE merely descriptive of tube sealing machines).

Applicant asserts that competitors “do not need to use the term ‘QUICK

DETECT’ as a composite mark to describe similar or competitive services” and the

“Examining Attorney even states that ‘[t]he applicant may be the first user of the

composite wording QUICK DETECT.’” 4 TTABVUE 10. As the Examining Attorney

explained, “[t]here is no requirement that the Office prove actual competitor use or

need; it is well established that even if an applicant is the only user of a merely

descriptive term, this does not justify registration of that term.” In re Carlson, 91

USPQ2d at 1203 (competitor need is not the test for descriptiveness); see also In re

Phoseon Tech., Inc., 103 USPQ2d 1822, 1826 (TTAB 2012); In re Sun Microsystems

Inc., 59 USPQ2d 1084, 1086 (TTAB 2001); In re Nat’l Shooting Sports Found., Inc.,

219 USPQ 1018, 1020 (TTAB 1983).

Finally, Applicant points to other cases in support of its position that QUICK

DETECT is suggestive, requiring imagination, thought, or perception to understand

the nature of the goods. The question of whether a mark is merely descriptive must

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Serial No. 87450474

be determined based on the evidence of record at the time registration is sought. See

In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (holding

ULTIMATE BIKE RACK merely descriptive of “bicycle racks” despite the presence

of “ultimate” without a disclaimer in other marks on the Principal Register); In re

Sun Microsystems Inc., 59 USPQ2d at 1084 (holding AGENTBEANS merely

descriptive of computer software for use in software development and deployment

where the Board found that changes in the vocabulary of the field reduced the

relevance of third-party registrations). In addition, the cases cited by Applicant

present clear differences in the marks and the goods at issue. For example, in In re

George Weston Ltd., 228 USPQ 57 (TTAB 1985) where the mark was SPEEDI

BAKE for frozen dough, the Board found the term “SPEEDI” to be vague. There is

nothing vague about the term “QUICK.” We find this case closer to the

circumstances presented in In re Quik-Print Copy Shop, Inc., 205 USPQ at 507 n. 9

(QUIK-PRINT merely descriptive of printing and photocopying services where the

term “QUIK” describes a quality or characteristic of the service).

In the context of these goods, the meaning of QUICK DETECT is clear: the

diagnostic kits are quick at detecting indicators for various diseases and conditions.

Decision: The refusal to register Applicant’s mark QUICK DETECT as merely

descriptive under Section 2(e)(1) is affirmed.

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