Airescue International

Trademark Trial and Appeal BoardFeb 6, 2012

No. 77256390 (T.T.A.B. Feb. 6, 2012)

Mailed: February 6, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Airescue International ________ Serial No. 77256390 _______ Kristen M. Walsh of Nixon Peabody LLP for Airescue International. Barney L. Charlon, Trademark Examining Attorney, Law Office 104 (Chris Doninger, Managing Attorney). _______ Before Kuhlke, Taylor and Ritchie, Administrative Trademark Judges. Opinion by Kuhlke, Administrative Trademark Judge: On August 15, 2007, Airescue International filed an application to register AIRESCUE in standard characters on the Principal Register for “fixed wing aircraft medical service transport anywhere in the world” in International Class 32. Applicant filed the application under Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a), alleging July 1, 1992, as the date of first use and first use in commerce. In addition, applicant claims ownership of prior THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 77256390 2 Registration No. 2092983 for the mark for the same services. This registration includes a disclaimer for the wording “AIR RESCUE.” On May 6, 2008, in response to a refusal based on mere descriptiveness under Section 2(e)(1) of the Trademark Act, Trademark Act, 15 U.S.C. §1052(e), applicant amended the application to seek registration under Section 2(f) of the Trademark Act, 15 U.S.C. §1052(f), based on a claim of acquired distinctiveness. Initially, the examining attorney issued a final refusal based on mere descriptiveness and applicant filed an appeal to the Board on that ground alone. On August 24, 2009, the Board remanded the case to the examining attorney for consideration of a request for reconsideration. On September 15, 2009, the examining attorney, based on a conversation with applicant’s prior counsel, issued a priority action, indicating he would accept the showing of acquired distinctiveness upon applicant’s approval of a disclaimer of the wording AIR RESCUE. On March 16, 2010, applicant, through new counsel, responded that the requirement of a disclaimer was improper.1 Thereafter, the examining attorney refused registration on the additional 1 As applicant notes this issue is not before the Board. Serial No. 77256390 3 ground that the proposed mark is generic for the applied- for services.2 The examining attorney has now made final the refusal of the application under Section 2(e)(1) on the grounds that (1) the proposed mark AIRESCUE is generic for the applied-for services, or, in the alternative, (2) the proposed mark AIRESCUE is highly descriptive and applicant’s showing of acquired distinctiveness is not sufficient to allow registration under Section 2(f) of the Trademark Act. GENERICNESS REFUSAL Generic terms are terms that the relevant purchasing public understands primarily as the common or class name for the goods and/or services. TMEP 1209.01(c). Generic terms are by definition incapable of indicating a particular source of the goods and/or services, and cannot be registered as trademarks and/or service marks; doing so “would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.” 2 Where an applicant responds to a mere descriptiveness refusal under Section 2(e)(1) by asserting acquired distinctiveness and the examining attorney determines the designation is generic, the examining attorney must issue a new nonfinal action refusing registration under Section 2(e)(1). TMEP §1209.02(a)(ii) (8th ed. 2011). Serial No. 77256390 4 In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987). When a proposed mark is refused registration as generic, the examining attorney has the burden of proving genericness by "clear evidence." Merrill Lynch, 4 USPQ2d at 1143; see also In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed. Cir. 1987); In re Wm. B. Coleman Co., 93 USPQ2d 2019 (TTAB 2010). The critical issue is to determine whether the record shows that members of the relevant public primarily use or understand the term sought to be registered to refer to the category or class of goods or services in question. H. Marvin Ginn Corp. v. International Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986); In re Women's Publishing Co. Inc., 23 USPQ2d 1876, 1877 (TTAB 1992). Making this determination “involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered ... understood by the relevant public primarily to refer to that genus of goods or services?” Ginn, 228 USPQ at 530. Evidence of the public’s understanding of a term may be obtained from any competent source, including testimony, surveys, dictionaries, trade journals, newspapers and other publications. Merrill Lynch, 4 USPQ2d at 1143, and In re Serial No. 77256390 5 Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985). Turning to the first inquiry, the examining attorney describes the genus as “air ambulance services” or “aeromedical transport services.” The examining attorney explains: [T]he word AIR is defined as “Aircraft.” The word “aircraft,” moreover, is defined as “an airplane, helicopter, or other machine capable of flight.” The word RESCUE is defined as “To set free, as from danger or imprisonment; save.” The term AIRESCUE, or “air rescue,” then, when considered in connection with applicant’s “fixed wing aircraft medical service transport anywhere in the world,” denotes services in which aircraft are used to save or free a person or persons from medical danger, or, in other words, to rescue a person or persons by air. Accordingly, by the plain meaning of the designation AIRESCUE, or “air rescue,” the class or genus of applicant’s services, in that these services use aircraft to provide emergency medical assistance, can be defined as air ambulance or aeromedical transport services, and these services may be performed with the use of an airplane, helicopter or any other machine capable of flight. ... Moreover, two online directories categorize applicant’s services as air ambulance services ... by virtue of the plain meaning of the term AIRESCUE, or “air rescue,” as well as applicant’s own definition of its services and the definition of applicant’s services in third-party business directories, the class or genus of applicant’s services can be defined as air ambulance or aeromedical transport services. Ex. Br. pp. 6-7. Applicant argues that the examining attorney “fails to acknowledge that within the aeromedical transport industry Serial No. 77256390 6 the fixed wing business is separate and distinct from the rotor-wing (i.e., helicopter) scene response business.” Reply Br. p. 1. Thus, the examining attorney’s description of the genus is “improper because it is overly broad and would include medevac rescue operations using helicopters, ‘search and recover’ (SAR) missions, and military missions, none of which are services provided by Applicant or claimed in the Application.” Br. p. 7. Applicant does not dispute that it operates in the aeromedical transport industry and that it is listed in directories as an air ambulance provider; however, applicant contends that there is no legal basis for defining “the genus of services for purposes of a genericness analysis to be the name of the general industry in which a trademark applicant operates.” Reply Br. p. 2. Rather, applicant contends that “the genus of services at issue is properly determined by reference to the identification of services set out in the application.” Br. p. 6. In general, the genus is adequately defined by the identification in the application. Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991). See also In re Country Music Association Inc., 100 USPQ2d 1828 (TTAB 2011). The problem with the examining attorney’s approach is that he defines the genus by the Serial No. 77256390 7 proposed mark, rather than the recited services. The examining attorney relies on Park ‘N Fly v. Dollar Park & Fly, Inc., 469 US 189, 224 USPQ 327, 329 (1985), in support of this approach. Specifically, the examining attorney points to the statement that “A generic term is one that refers to the genus of which the particular product is a species.” The Park ‘N Fly decision concerned the issue of the incontestability provisions in the Trademark Act and did not address the question of how to define the genus in considering whether a term is capable or incapable for purposes of registration. Park ‘N Fly, 224 USPQ at 329. (“This case requires us to consider the effect of the incontestability provisions of the Lanham Act in the context of an infringement action defended on the grounds that the mark is merely descriptive.”) That is not the issue at hand here, however, and we find it more appropriate to follow the standard set forth in Magic Wand, a case issued in 1991, six years after Park ‘N Fly. There, the Court stated: The description in the registration certificate identifies the services in connection with which the registrant uses the mark. The Lanham Act permits cancellation when a “registered mark becomes the generic name for the goods or services ... for which it is registered ...” Thus, a proper genericness inquiry focuses on the Serial No. 77256390 8 description of services set forth in the certificate of registration. Id. at 1552 (citations omitted). Thus, we find that the genus of services at issue in this case is adequately defined by applicant’s identification of services, specifically, “fixed wing aircraft medical service transport anywhere in the world.” The evidence of record provides further clarification that the genus includes “fixed-wing air ambulances” provided on an “emergency” basis to “evacuate” and transport patients. In re Reed Elsevier Properties Inc., 77 USPQ2d 1649, 1655 (TTAB 2005)(the Board may look to the record to interpret the nature of an applicant’s goods or services), aff’d, 482 F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007). See also In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir. 2005) The description of applicant’s services in its brochure includes the provision of “air ambulance jets,” “emergency operations” and “air evacuation.” Applicant’s brochure attached to the October 7, 2010 Applicant Response. See also Copies of webpages from applicant’s website attached to the November 4, 2010 Office Action which reference the services of “emergency transports”. These aspects of the services are encompassed by the identification “fixed wing aircraft medical service Serial No. 77256390 9 transport anywhere in the world.” But, as applicant points out, it does not include “medevac rescue operations using helicopters, ‘search and recover’ (SAR) missions, and military missions.” The record shows that the relevant purchasers would be institutions (e.g., university medical centers), corporations (e.g., insurance companies), the U.S. military, and individuals and families. Turning to the second inquiry, the examining attorney argues that AIRESCUE or air rescue, is understood by the relevant public primarily to refer to air ambulance or aeromedical transport services. We will proceed in our analysis of the evidence of record as it pertains to the genus identified above. In support of his assertion that the mark is generic the examining attorney submitted the following dictionary definitions: Air: 4. Aircraft: send troops to Europe by air. The American Heritage Dictionary of the English Language (3rd 1992), attached to November 24, 2007 Office Action p. 1; Rescue: to set free, as from danger or imprisonment; save. The American Heritage Dictionary of the English Language (3rd 1992), attached to November 24, 2007 Office Action p. 1; and Serial No. 77256390 10 Evacuate: remove (someone) from a place of danger to a safe place. Oxford University Press (2011).3 He also submitted printouts from a variety of third- party websites. Below are representative samples organized according to the examining attorney’s categorization (emphasis added): i. Business AirMed Air Ambulance In the News ... but as the leading air rescue company, we do tend to get attention near and abroad. Whether it’s for missions to exotic locations, procedures rarely done in the air, or for being pioneers in the industry, we’re always grateful for the recognition. After all, it allows us to cast an even larger safety net across the world. Latest news: Leading travel company, AVS, endorses AirMed memberships to its clients. (www.airmed.com, attached to May 21, 2008 Office Action); Air-Rescuetek.com ... Welcome to Air- Rescuetek.com – your one-stop guide to worldwide news, safety and product/technology development today’s emergency aeromedical and air rescue professionals. (www.air-rescuetek.com attached to April 7, 2010 Office Action); Urgent Communications ... Air Methods Corp. is among several North American air-ambulance and medical-transportation fleets that have switched to Iridium Satellite of Bethesda, Md., for mobile-satellite communication services. In addition, the California Shock and Trauma Air Rescue fleet of helicopters and fixed-wing 3 We take judicial notice of this dictionary definition. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). See also University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). Serial No. 77256390 11 aircrafts have deployed the company’s voice, automated-tracking and text-messaging services. (http://urgentcomm.com attached to November 4, 2010 Office Action); ii. Government SBUH members flying air rescue soar through certification exam ... The team provides emergency medical scene response and transfers critical-care patients between facilities. The air response is provided in cooperation with the Suffolk County Police Department aviation section. (http://www.thecommunicator.org attached to November 4, 2010 Office Action); Air Rescue ... [Broward Sheriff’s Office] Air Rescue Unit provides emergency medical helicopter transport for all Broward County municipalities and unincorporated areas.” (sheriff.org attached to May 21, 2008 Office Action); Air Rescue Team Formed In Brevard County (cfnews13.com attached to December 16, 2008 Office Action); iii. Media Hondo new home to air rescue base ... Air Evac Lifeteam is expanding Texas operations with a new base in Hondo for air rescue in rural areas of Southwest Texas. This is the air ambulance service’s 83rd base and will serve rural hospitals within a 70-mile radius of Hondo. Each crew has a pilot, registered nurse and paramedic. While most air ambulance services are based in large cities at major hospital systems or public hospitals, the private Air Evac locates in rural areas and sells annual memberships ranging from $50 to $60 per household and makes the pricey flight free if the service is used. (San Antonio-Express News (December 8, 2008) attached to December 16, 2008 Office Action); Another air-rescue for snake bite victim ... A 48-year-old man was airlifted to the University of Virginia Medical Center in Charlottesville Serial No. 77256390 12 yesterday afternoon after suffering multiple snake bites on the Blue Ridge Parkway. (http://hikinginthesmokys.blogspot.com, attached to April 7, 2010 Office Action); CNN ... Tough air rescue launched for ailing Arctic doctor … A rescue mission was under way Thursday to evacuate a doctor who has been treating herself for a lump in her breast while on duty at the South Pole. Two LC130 cargo planes left Travis Air Force Base on Thursday morning en route to Hickam Air Force Base, Hawaii, for the long trip to McMurdo Station in Antarctica, then on to AmundsenScott Research Station, where Jerri Nielsen is the bases only doctor. ... If approved, one plane could fly as early as Monday to AdmundsenScott. (http://articles.cnn.com attached to November 4, 2010 Office Action); DPS air rescues hurting ... If an injured hiker on the San Francisco Peaks needs a state rescue helicopter or a motorist crashes on I-40 late at night, will DPS be there to answer the call? ... confirms that 50 percent of all air rescue calls go unanswered and that there are 61 fewer patrol officers than in December 2008. (azdailysun.com attached to November 4, 2010 Office Action); and Air-rescue safety stressed ... More than 10 percent of the air ambulance helicopters designed to assist emergency situations have crashed in the past five years, according to USA Today. (www.highbeam.com attached to November 4, 2010 Office Action). In addition, the examining attorney points to applicant’s specimen of use wherein the services are described as “logistically difficult medical evacuations” and that it has the “most experienced medical team in the international air evacuation industry.” The examining Serial No. 77256390 13 notes that the words evacuate and rescue have similar meanings. He argues that: [The] distinction, then, between the words ‘evacuate’ and ‘rescue’ in the present case is largely a semantic one in that both words are intended to convey the notion of removing or setting free from danger. ... Thus, applicant’s own specimen of use clearly indicates that applicant’s services can properly be defined as using aircraft to evacuate or rescue someone from danger. And as the evidence of record amply demonstrates, the term AIRESCUE, or “air rescue,” is understood by the relevant public to refer to such services. Br. p. 13. In traversing the refusal, applicant states that it “is a commercial entity that transports people who need medical assistance while in transit. Applicant does not rescue people in emergency situations or engage in so- called ‘search and rescue’ missions.” Br. p. 1. Applicant argues that the examining attorney’s evidence does not support the refusal. Applicant observes that none of the “Internet references” uses AIRESCUE or air rescue as the common commercial name for “fixed wing aircraft medical services transport anywhere in the world” and most of the references are to emergency medical helicopter transport or military and civilian search and rescue missions. Applicant acknowledges that three examples use the term air rescue in the context of air Serial No. 77256390 14 ambulance companies and one reference uses air rescue to refer to medical evacuation services and a variety of emergency and non-emergency services offered to members by a travel insurer. Applicant contends this last reference “appears to be an infringement of Applicant’s AIRESCUE mark.” Br. p. 9. Applicant argues that: [The] Internet references provided by the Trademark Examining Attorney establish that the term ‘air rescue’ is understood by consumers to refer primarily to emergency medical helicopter transport services – services not within the correct “genus” of services for purposes of this genericness analysis and, indeed, services not even covered by the Application or provided by Applicant under the AIRESCUE mark. Br. p. 10. In addition, applicant argues that the evidence is “insufficient with regard to how relevant consumers understand AIRESCUE, as opposed to the separate words ‘air rescue.’” Noting, that when the term is a compound word, “particular consideration would be given to whether the compound word has a meaning that is different from the meaning of the separate words.” Br. p. 10. Specifically, applicant argues that there is no evidence “that the general public or the relevant consumers, that is, the medical transport community, would attribute the same meaning to AIRESCUE and ‘air rescue.’ Indeed, such a Serial No. 77256390 15 conclusion is belied by the thirty-two Customer’s Statements previously submitted by Applicant.” Br. p. 11. In support of its position, applicant submitted (1) excerpts from Webster’s Third New International Dictionary (Unabridged) and Merriam-Webster’s online dictionary showing an absence of an entry for the term “air rescue,” and (2) a search result listing based on the search of the term “AIRESCUE” retrieved from the search engine Google, that brings up applicant in the first 40 hits. In addition, applicant submitted the declaration with exhibits of Francine Vogler, MD, applicant’s founder, President and Medical Director. The exhibits attached to Dr. Vogler’s declaration include, applicant’s brochures, awards received by applicant and its founder, media references to applicant (print and television), and thirty- two customer statements. Dr. Vogler explains that applicant is a “global aeromedical service which transports critical adult, neonatal, and pediatric patients, including by fixed wing aircraft.” Applicant’s October 7, 2010 Response, Vogler Decl. She states that applicant has used the “name and mark AIRESCUE” in connection with its services since 1992 and from that time “has made prominent use of Applicant’s Mark on its airplanes, uniforms of in-flight physicians, Serial No. 77256390 16 nurses, and other medical personnel, medical equipment, and in marketing and promotional materials.” Id. It is not clear from the declaration if AIRESCUE was ever used prominently by itself or always in the manner depicted in the specimen of use and the advertising brochures submitted with her declaration, i.e., with additional wording and designs. She states further that applicant transports an average of 10-15 patients a month and in 2002 generated gross revenues of $2.5 million. Applicant and the founder have received numerous awards. She asserts that applicant does not engage in rescue operations “as that term is widely understood in the area of emergency medical response. Such activity is performed by 911 ‘first responders’ – and when aviation assets are employed – it is specially-equipped rotor wing aircraft (helicopters), not fixed-wing aircraft, that are involved. Applicant does not engage in ‘search and recovery’ (SAR) missions for lost aircraft or persons, or in military missions.” Id. The customer statements are presented as form statements. The most pertinent paragraphs read as follows: 3. I am familiar with AIRescue International’s trademark AIRESCUE which is used on AIRescue International’s airplanes, on the uniforms of AIRescue International in-flight physicians, nurses, and other medical personnel, on AIRescue International medical equipment, and in AIRescue Serial No. 77256390 17 International marketing and promotional materials. 4. I have been a customer of AIRescue International for ___ years and have used AIRescue International to provide medical air transport of patients, or air ambulance services, by fixed wing aircraft. 5. I regard AIRESCUE as identifying the services of AIRescue International only, and not of any other company providing similar services, and immediately associate AIRESCUE with AIRescue International. 6. I am not aware of any other company using the AIRESCUE mark in connection with similar services. 7. Within the medical transport industry, use of the mark AIRESCUE in connection with medical air transport services indicates that such services come from AIRescue International, and not from any other company providing similar services. 8. AIRESCUE does not refer to a particular class, or genus, of services, and is not a generic term for “fixed wing aircraft medical service transport anywhere in the world.” Applicant’s October 7, 2010 Response, Vogler Decl. Exh. D. The examining attorney contends that these statements are of lesser probative value because “they are in the nature of standard form declarations that have been completed by customers and parties who otherwise have a relationship with applicant rather than by competitors of applicant.” Ex. Br. pp. 21-22. Applicant contends that the statements are highly probative because they include industry experts, for Serial No. 77256390 18 example, a past senior executive of a global leader in emergency travel insurance, the Chief of Emergency Medicine at UCLA Medical Center, a leading author in the field of air medicine, emergency physicians and nurses, medical air transport directors and administrators for leading hospitals, and members of ground ambulance crews. Further, applicant argues that it “is unfair and inappropriate to question the veracity of these highly qualified individuals, merely because they also happen to have a relationship with Applicant, and there is absolutely no reason to believe that any of them failed to tell the truth to help Applicant in this case. ... as leaders in the medical air transport services industry, these individuals are the most knowledgeable and best positioned to speak to the meaning of AIRESCUE in the marketplace.” Br. pp. 18- 19. “[F]orm statements may be used to show acquired distinctiveness, and ... it is not necessary that the forms include a declaration as provided in Trademark Rule 2.20.” In re Lorillard Licensing Co., LLC, 99 USPQ2d 1312 (TTAB 2011), citing, In re EBSCO Industries Inc., 41 USPQ2d 1913, 116 (TTAB 1996). However, there are some limitations to the probative value of such declarations. Where such declarations or affidavits are sought and collected by an Serial No. 77256390 19 applicant “from its customers who have dealt with applicant for many years, [the] evidence is not altogether persuasive on the issue of how the average customer” for applicant’s medical transport services by fixed-wing aircraft would perceive the term AIRESCUE in connection with an air medical evacuation on an emergency basis. In re The Paint Products Co., 8 USPQ2d 1863, 1866 (TTAB 1988) (PAINT PRODUCTS CO. so highly descriptive for paints it cannot function as a mark). In In re Petersen Manufacturing Co., Inc., 229 USPQ 466, 468 (TTAB 1986), the Board specifically stated that “a more persuasive case could by made if each declaration filed was written in the declarant’s own words and more clearly showed the declarant’s perception of the function of each designation sought to be registered.” Further, one reason that the Board found it reasonable in that case for the applicant to have submitted form declarations was because they were the only practical format due to the large number of applications applicant had filed (16), and the large number of declarations for each one. In In re Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991), the Board expressed concern about whether the people signing the form declarations, which were presumably drafted by applicant’s counsel, understood the legal Serial No. 77256390 20 concepts recited in the declarations. And in Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 31 USPQ2d 1481, 1487 (8th Cir. 1994), the Court found that thirty-two letters were unacceptable to prove secondary meaning, in part because “the letters are merely copies; in some cases simply photocopies with the blank spaces filled in, of a form letter provided by Aromatique” and that “in substance, they amounted to hardly more than a carte blanche approval of that which had been formulated by a party naturally and understandably desirous of serving its own interest.” We find the customer statements here, although restricted by the same limitations discussed above, are more probative than those presented in cases involving less sophisticated consumer goods. Here, the customer statements represent a good cross section of applicant’s consumer base. They do not, however, cover future consumers, both institutions and individuals, and are not dispositive on the issue. They simply add to the mix of evidence we must weigh and balance. Certainly, the evidence of record establishes that the term AIR RESCUE is generic for first responder rescue helicopter operations and search and rescue missions. See, e.g., sheriff.org and highbeam.com. Applicant does not dispute this; rather, it is applicant’s contention that its Serial No. 77256390 21 services are distinctly different from these rescue services and, as such, AIR RESCUE would not be understood by the relevant consumer as the generic term for its “fixed wing aircraft medical” service. However, other examples in the record show a broader use of the term AIR RESCUE, including ones that incorporate applicant’s services. See www.airmed.com (“AirMed Air Ambulance ... as the leading air rescue company”). In addition, applicant’s fixed-wing medical transport services can and sometimes are performed in tandem with the first responder air rescue service. One of the articles submitted by applicant illustrates this relationship. The article describes an air rescue by helicopter of a mountain climber who had fallen 1000 feet while climbing. After the helicopter brought him to a hospital in Patagonia, applicant provided the air medical transport needed to fly the patient from Patagonia to Long Island, New York. “Rescue in the Mountains” Newsday (February 24, 1995) attached to Request for Remand (August 17, 2009). In addition, a Certificate of Recognition from the California State Assembly was presented to AIRESCUE INTERNATIONAL / Los Angeles Fire Department Air Operations, which underscores the relationship between applicant’s and first responder’s services. Request for Reconsideration Serial No. 77256390 22 (August 17, 2009). The commendation from the City of Los Angeles describes applicant as “a leading emergency, global, aeromedical company that evacuates and repatriates critically-ill or injured patients aboard medical aircraft.” Id. In an interview on a CNN segment titled “Business Unusual,” Dr. Vogler explains that “You may have to organize local response units, depending upon how critically ill the patient is and whether or not they can wait. You may have to organize a local helicopter. And we’ve done all of that.” Id. The article titled “Rescue from the air” from the Malibu Times includes the following excerpts: Rescuing and fighting for her patients in extreme physical emergencies worldwide is Fran Vogler’s passion. ... AIRescue International, a worldwide medical air ambulance and air evacuation service company ... [Dr. Vogler’s] work in medical air transport began with UCLA’s clinical faculty and its helicopter MedStar program, until it closed down. “It was an integrated transfer program involving helicopters, ground ambulance and fixed-wing air ambulance. ... Vogler said “[Dr. Vogler] wanted to find a way to provide continuity in the fixed-wing area to transport patients who were ill or injured that needed to be moved in or out of the United States” said David Percelay, husband and spokesperson for Vogler. In response to the gap in these services, Vogler created AIRescue, a 24/7 emergency air medical company, based at Van Nuys Airport. It’s a first-responder for a number of university medical programs, including Stanford University’s Lucile Packard Children’s Hospital. Serial No. 77256390 23 “...I don’t let go until I get it done, whether that be plucking someone off a coral atoll in the middle of the Pacific Ocean, when all you get are longitude, latitude and the coordinates and you don’t actually know where someone is located and you have to figure out how to get them out- a combination of maybe a boat, a helicopter, and a jet- or rescuing a young man who fell 1,000 feet while ice climbing in Patagonia,” Vogler said. As the record demonstrates, first responder helicopter rescue is often closely integrated with fixed-wing evacuation. In addition, the common meanings of the individual terms “air,” aircraft or by air, and “rescue,” to set free from danger or save, precisely name what applicant does. Even applicant’s founder refers to its services as “rescuing” a patient. The fact that applicant may be the first fixed wing medical transport service to use this term also does not obviate the refusal. In re Nat’l Shooting Sports Found., Inc., 219 USPQ 1018 (TTAB 1983). Moreover, the separate words retain their generic significance in applicant’s telescoped compound term AIRESCUE. AIRESCUE has “a meaning identical to the meaning common usage would ascribe to those words as a compound.” In re Gould Paper Corp., 834 F.2d 1017, 1018, 5 USPQ2d 1110, 1111-1112. The specific use of the term AIR RESCUE with the integrated first responder services, the more general use of this term in the air medical transport industry, Serial No. 77256390 24 including for fixed wing air ambulance services, and the common meanings of the individual terms “air” and “rescue” clearly show that AIR RESCUE would be understood by relevant consumers as referring to what the service is. The fact that AIR RESCUE is generic for first responder helicopters does not foreclose it from being generic for other AIR RESCUE services. While the record does not reveal widespread use of the term AIR RESCUE for applicant’s specific services it does support a finding that the relevant public (beyond applicant’s current customers) would primarily understand it to refer to applicant’s services. Ginn, 228 USPQ at 530. Finally, as the examining attorney notes, a novel spelling or an intentional misspelling that is the phonetic equivalent of a generic term is also generic if purchasers would perceive the different spelling as the equivalent of the generic term. In re Greenliant Systems Ltd., 97 USPQ2d 1078, 1083 (TTAB 2010) (NANDRIVE equivalent to NAND DRIVE and the telescoping of the terms is immaterial in genericness analysis). See also Micro Motion Inc. v. Danfoss A/S, 49 USPQ2d 1628, 1631 (TTAB 1998) (holding MASSFLO generic for mass flow meters). Here, applicant’s telescoped mark AIRESCUE is the phonetic equivalent of AIR Serial No. 77256390 25 RESCUE. Further, in view of our finding regarding the meaning of AIRESCUE in the context of applicant’s services, the argument that the relevant public would not attribute the same meaning to AIRESCUE as to the individual terms air rescue is not persuasive. ACQUIRED DISTINCTIVENESS For completeness we address the alternative refusal that AIRESCUE is merely descriptive and the showing under Section 2(f) is insufficient to establish acquired distinctiveness. Inasmuch as applicant has amended its application to seek registration under Section 2(f) based on acquired distinctiveness, applicant has conceded that AIRESCUE is merely descriptive, and the only issue before us is applicant’s assertion of acquired distinctiveness. Yamaha Int’l Corp. v. Hoshino Gakki Co. Ltd., 840 F.2d 1572, 6 USPQ2d 1001, 1005 (Fed. Cir. 1988); In re Cabot Corp., 15 USPQ2d 1224, 1229 (TTAB 1990). We note, in any event, that the examining attorney has submitted ample evidence to establish that AIRESCUE is merely descriptive, as discussed above, in relation to the refusal based on genericness. It is applicant’s burden to prove acquired distinctiveness. Yamaha, supra, 6 USPQ2d at 1006; In re Hollywood Brands, Inc., 214 F.2d 139, 102 USPQ 294, 295 Serial No. 77256390 26 (CCPA 1954) (“[T]here is no doubt that Congress intended that the burden of proof [under Section 2(f)] should rest upon the applicant”). “[L]ogically that standard becomes more difficult as the mark’s descriptiveness increases.” Yamaha, supra, 6 USPQ2d at 1008. A claim that applicant has been using the subject matter for a long period of substantially exclusive use may not be sufficient to demonstrate that the mark has acquired distinctiveness. See In re Gibson Guitar Corp., 61 USPQ2d 1948, 1952 (TTAB 2001) (66 years of use). The amount and character of evidence required to establish acquired distinctiveness depends on the facts of each case, Roux Laboratories, Inc. v. Clairol Inc., 427 F.2d 823, 166 USPQ 34 (CCPA 1970), and more evidence is required where a mark is so highly descriptive that purchasers seeing the matter in relation to the goods or services would be less likely to believe that it indicates source in any one party. See In re Bongrain International Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed. Cir. 1990). Evidence of acquired distinctiveness can include the length of use of the mark, advertising expenditures, sales, survey evidence, and affidavits asserting source-indicating recognition. However, a successful advertising campaign is not in itself necessarily enough to prove secondary meaning. In re Serial No. 77256390 27 Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999) (claim based on annual sales under the mark of approximately eighty-five million dollars, and annual advertising expenditures in excess of ten million dollars, not sufficient to establish acquired distinctiveness in view of highly descriptive nature of mark). It is the examining attorney’s position that AIRESCUE is highly descriptive and applicant’s evidence is not sufficient to establish acquired distinctiveness. As discussed above in relation to the genericness refusal, we are persuaded by the evidence of record that the term AIRESCUE is highly descriptive of applicant’s services. As proof of acquired distinctiveness, applicant relies on the same evidence which includes advertising materials, print and broadcast news coverage of applicant and its services, inclusion of applicant’s mark in the ER television series, and awards received by applicant and its founder. As to the print and broadcast news coverage, for the most part the references are to applicant’s entire name AIRescue International, rather than simply AIRESCUE. More, importantly, the record does not reflect a widespread reference to it in the press, either by submission or declaration attesting to how frequently they appear in the Serial No. 77256390 28 press and how widely the various publications are distributed. The few examples of brochures do not provide information as to how much they have been distributed or how often potential customers are exposed to the proposed mark, in particular, simply the word AIRESCUE without other wording, e.g., INTERNATIONAL or design elements. With regard to the television show, there is no information as to how frequently the word AIRESCUE actually appeared in connection with the air medical transport services on the show and whether it appeared by itself or closely associated with other wording and design elements. Based on the Vogler declaration, applicant has used the term AIRESCUE for approximately twenty years. While this is long time, the use has not been exclusive in the industry and the record includes some examples of the term being used in connection with fixed wing aircraft and air ambulances. As to the sales figures, only one year of figures was provided without any context of what that amount means within the air ambulance industry and with regard to consumer exposure to AIRESCUE. Finally, while the form customer statements are probative, in particular with these types of services, given the widespread use of the term “air rescue” in the medical transport industry (for purposes of this analysis Serial No. 77256390 29 we are not limited to the genus determined for the genericness analysis), which includes applicant’s services, and the highly descriptive nature of the term air rescue based on the dictionary definitions of the individual terms and the lack of any incongruity in the combination AIRESCUE when used in connection with applicant’s services, the evidence submitted by applicant is simply inadequate to demonstrate that AIRESCUE has acquired distinctiveness as a trademark for applicant’s identified services. After a careful review of the record, we find that in view of the highly descriptive nature of the term AIRESCUE, applicant’s evidence of acquired distinctiveness is insufficient to show that it has acquired distinctiveness. Decision: The refusal based on genericness is affirmed. The refusal based on mere descriptiveness and applicant’s insufficient showing of acquired distinctiveness is affirmed.