Association for Play Therapy, Inc.

Trademark Trial and Appeal Board

Mar 8, 2022

88467026 (T.T.A.B. Mar. 8, 2022)

This Opinion is Not a Precedent of the TTAB Mailed: March 8, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Association for Play Therapy, Inc. _____ Serial No. 88467026 _____ Jennifer A. Van Kirk and Rachel A. Nicholas of Lewis Roca Rothgerber Christie LLP, for Association for Play Therapy, Inc. Andrew Leaser, Trademark Examining Attorney, Law Office 117, Cynthia Tripi, Managing Attorney. _____ Before Taylor, Lykos and Lebow, Administrative Trademark Judges. Opinion by Lykos, Administrative Trademark Judge: On June 10, 2019, Association for Play Therapy, Inc. (“Applicant”) filed an application to register, on the Principal Register pursuant to Trademark Act Section 2(f), 15 U.S.C. § 1052(f), the standard character mark REGISTERED PLAY THERAPIST for “professional credentialing verification services in the fields of play therapy and play therapy supervision, namely, verifying the skills and knowledge of licensed professionals on behalf of others” in International Class 35.1 The application 1 Application Serial No. 88467026, filed under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), alleging March 1, 1993 as the date of first use anywhere and in commerce, and Serial No. 88467026 - 2 - was accompanied by the following statement to support Applicant’s claim of acquired distinctiveness: The mark has become distinctive of the goods/services through the applicant’s substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement. The Trademark Examining Attorney has refused registration on the grounds that pursuant to Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C. §§ 1051-53, 1127, Applicant’s proposed mark is generic for the identified services2 or, alternatively, that Applicant’s mark is so highly descriptive of the identified services under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), that Applicant has failed to meet its burden of proving that its applied-for mark has acquired distinctiveness within the meaning of Section 2(f). Applicant timely filed a notice of appeal and request for reconsideration which was denied. The appeal is fully briefed. claiming ownership of Registration Nos. 1904803, 2655409 and 3701083. In the initial Office action dated September 5, 2019, the Examining Attorney noted that the claim of ownership would not be printed on any registration that may issue from this application given the differences between the present and previously registered marks. See Trademark Rule 2.36; 37 C.F.R. § 2.36; see also TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 812 (July 2021). Citations to the prosecution file refer to the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system and identify documents by title and date. References to the briefs and other materials in the appeal record refer to the Board’s TTABVUE docket system. 2 Prior to issuing the genericness refusal, the Examining Attorney inquired as to whether Applicant sought registration of a certification mark or a service mark. See September 5, 2019 Office Action. Applicant’s response that it seeks registration of a service mark prompted the Examining Attorney to issue the genericness refusal. See February 20, 2020 Response to Office Action. Serial No. 88467026 - 3 - I. Acquired Distinctiveness Under Section 2(f) We begin with the alternative refusal that Applicant’s mark is so highly descriptive of the identified services under Trademark Act Section 2(e)(1) that Applicant has failed to meet its burden of proving that its applied-for mark has acquired distinctiveness within the meaning of Section 2(f). In the absence of acquired distinctiveness under Section 2(f), Section 2(e)(1) of the Trademark Act prohibits registration of a mark on the Principal Register that, when used in connection with an applicant’s services, is merely descriptive of them. 15 U.S.C. § 1052(e)(1).3 The underlying rationale of Section 2(f) has been explained as follows: [U]nlike the first five sections of 15 U.S.C. § 1052 which define the grounds upon which a trademark registration is to be refused, Section 2(f) serves as an exception to a rejection under the provisions of one of the other sections, Section 2(e) (citation omitted). Section 2(f) permits registration of marks that, despite not qualifying for registration in light of Section 2(e), have nevertheless “become distinctive of the applicant’s goods in commerce.” Thus, “Section 2(f) is not a provision on which registration can be refused,” ... but is a provision under which an applicant has a chance to prove that he is entitled to a federal trademark registration which would otherwise be refused. Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 6 USPQ2d 1001, 1007 (Fed. Cir. 1988) (quoting In re Capital Formation Counselors, Inc., 219 USPQ 916, 917 n.2 (TTAB 1983)) (emphasis added). “The statute is silent as to the weight of evidence 3 “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it . . . (e) Consists of a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive ….” Serial No. 88467026 - 4 - required for a showing under Section 2(f) ‘except for the suggestion that substantially exclusive use for a period of five years immediately preceding filing of an application may be considered prima facie evidence.’” In re Owens-Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417, 422 (Fed. Cir. 1985) (quoting In re Hehr Mfg. Co., 279 F.2d 526, 126 USPQ 381, 382-83 (CCPA 1960)). Trademark Rule 2.41, 37 C.F.R. § 2.41, entitled “Proof of distinctiveness under section 2(f),” fills in this gap, stating in relevant part: (a) For a trademark or service mark- (1) Ownership of prior registration(s). In appropriate cases, ownership of one or more active prior registrations on the Principal Register or under the Trademark Act of 1905 of the same mark may be accepted as prima facie evidence of distinctiveness if the goods or services are sufficiently similar to the goods or services in the application; however, further evidence may be required. (2) Five years substantially exclusive and continuous use in commerce. In appropriate cases, if a trademark or service mark is said to have become distinctive of the applicant’s goods or services by reason of the applicant’s substantially exclusive and continuous use of the mark in commerce for the five years before the date on which the claim of distinctiveness is made, a showing by way of verified statements in the application may be accepted as prima facie evidence of distinctiveness; however, further evidence may be required. (3) Other evidence. In appropriate cases, where the applicant claims that a mark has become distinctive in commerce of the applicant’s goods or services, the applicant may, in support of registrability, submit with the application, or in response to a request for evidence or to a refusal to register, verified statements, depositions, or other appropriate evidence showing duration, extent, and nature of the Serial No. 88467026 - 5 - use in commerce and advertising expenditures in connection therewith (identifying types of media and attaching typical advertisements), and verified statements, letters or statements from the trade or public, or both, or other appropriate evidence of distinctiveness. Other relevant factors may include “copying, advertising expenditures, sales success, length and exclusivity of use, unsolicited media coverage, consumer studies (linking the name to a source).” In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005) (citing Cicena Ltd. v. Columbia Telecomms. Grp., 900 F.2d 1546, 14 USPQ2d 1401 (Fed. Cir. 1990)). See also Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1729 (Fed. Cir. 2012). No single factor, however, is determinative. In re Steelbuilding.com, 75 USPQ2d at 1424. Rather, all factors are weighed together in light of all the circumstances to determine whether the mark has acquired distinctiveness. Id. Applicant has the burden of establishing that its mark has become distinctive. In re La. Fish Fry Prods., 797 F.3d 1332, 116 USPQ2d 1262, 1264 (Fed. Cir. 2015) (citing In re Steelbuilding.com, 75 USPQ2d at 1422). In other words, Applicant must show that “in the minds of the public, the primary significance of a [service] feature or term is to identify the source of the product rather than the [service] itself.” Coach Servs., 101 USPQ2d at 1729 (internal citation omitted). The more descriptive the term, the greater the evidentiary burden to establish acquired distinctiveness. Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1045 (Fed. Cir. 2018) (citing In re Steelbuilding.com, 75 USPQ2d at 1424). Serial No. 88467026 - 6 - Whether acquired distinctiveness has been established is a question of fact. In re Becton, Dickinson and Co., 675 F.3d 1368, 102 USPQ2d 1372, 1375 (Fed. Cir. 2012). The kind and amount of evidence necessary to establish that a mark has acquired distinctiveness in relation to goods or services depends on the nature of the mark and the circumstances surrounding the use of the mark in each case. Yamaha, 6 USPQ2d at 1008; Roux Labs., Inc. v. Clairol Inc., 427 F.2d 823, 166 USPQ 34, 39 (CCPA 1970); In re Hehr Mfg. Co., 126 USPQ at 383. Applicant’s request that the application be registered under Section 2(f) constitutes an admission that the mark is merely descriptive and not inherently distinctive. See Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009) (“Where an applicant seeks registration on the basis of Section 2(f), the mark’s descriptiveness is a nonissue; an applicant’s reliance on Section 2(f) during prosecution presumes that the mark is descriptive.”); see also In re Am. Furniture Warehouse CO, 126 USPQ2d 1400, 1403 (TTAB 2018) (noting that a claim of acquired distinctiveness by applicant “can be viewed as a concession by Applicant that the wording itself is not inherently distinctive for those services”). Thus, the issues before us are whether Applicant’s mark is so highly descriptive of the services that Applicant is subject to a higher burden of proof to demonstrate acquired distinctiveness and whether Applicant has in fact met that burden. A. Is Applicant’s Mark Highly Descriptive of the Identified Services? We must first determine “whether the proposed mark is highly descriptive rather than merely descriptive.” Royal Crown, 127 USPQ2d at 1045. See, e.g., In re La. Fish Serial No. 88467026 - 7 - Fry Prods., 116 USPQ2d at 1265 (“On appeal, Louisiana Fish Fry does not challenge the Board’s finding that the term FISH FRY PRODUCTS is highly descriptive [of marinade; sauce mixes, namely barbecue shrimp sauce mix; remoulade dressing; cocktail sauce, seafood sauce; tartar sauce; gumbo file; and cayenne pepper].”); Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1765 (TTAB 2013), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.) (“the evidence discussed above amply demonstrates that the mark [ANNAPOLIS TOURS for ‘conducting guided tours of historic districts and other areas of cities’], while not generic, is highly descriptive.”). When proposed marks are highly descriptive, evidence of use for five years, or even longer, is generally insufficient to show acquired distinctiveness. See In re La. Fish Fry Prods., 116 USPQ2d at 1265 (“[p]articularly for a mark that is as highly descriptive like FISH FRY PRODUCTS, the Board was within its discretion not to accept Louisiana Fish Fry’s alleged five years of substantially exclusive and continuous use as prima facie evidence of acquired distinctiveness.”). Rather, for highly descriptive terms, an applicant faces an “elevated burden to establish acquired distinctiveness.” In re La. Fish Fry Prods., 116 USPQ2d at 1265. Under “this sliding- scale approach,” the more highly descriptive the proposed mark, the greater the burden. Royal Crown, 127 USPQ2d at 1047. See also In re Boston Beer Co., 198 F.3d 1370, 1373 (Fed. Cir. 1999) (“[T]he greater the degree of descriptiveness the term has, the heavier the burden to prove it has attained secondary meaning.” (quoting In re Serial No. 88467026 - 8 - Bongrain Int’l (Am.) Corp., 894 F.2d 1316, 1317 n.4 (Fed. Cir. 1990))). The evidence of record amply demonstrates that Applicant’s mark REGISTERED PLAY THERAPIST is highly descriptive of “professional credentialing verification services in the fields of play therapy and play therapy supervision, namely, verifying the skills and knowledge of licensed professionals on behalf of others.” The word “registered,” when used as an adjective, is defined as follows: “officially qualified or certified.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2020).4 “qualified formally or officially.” THE MERRIAM-WEBSTER DICTIONARY.5 “legally certified or authenticated.” WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2014).6 The record further shows that the term “registered” is commonly used in connection with therapeutic occupations to indicate that the person performing the therapy is officially qualified, certified or credentialed for a specific type of therapy. Some examples include “registered family therapist,”7 “registered dance movement 4 March 20, 2020 Office action, TSDR p. 6 (https://www.ahdictionary.com/word/search.html?q=registered) 5 October 4, 2020 Office action, TSDR p. 7 (https://www.merriam- webster.com/dictionary/registered accessed). 6 Id. at 13 (https://www.yourdictionary.com/registered). 7 Accessibility Defense, https://accessdefense.com attached to May 1, 2021 Office action, TSDR, p. 35. Serial No. 88467026 - 9 - therapist,”8 “registered drama therapist,”9 “registered art therapist”10 and “registered marriage therapist.”11 A “play therapist” is a well-recognized type of therapist. The record includes a dictionary definition coupled with articles from mental health and therapy websites to explain the role of a play therapist: THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2020), defines a “play therapist” as “the name given to one who offers play therapy services.”12 Kids Inc. Helping Children Develop: “A play therapist is trained specifically to understand child’s play, and s/he is trained to understand the free associations that children make while moving from toy to toy.”13 Psychology Today: “Play therapists are well-trained in child development, attachment, and the use of play as a way to communicate with children.”14 As this evidence shows, the terms “registered” and “play therapist,” standing alone, are highly descriptive terms. When combined, their highly descriptive 8 PALM BEACH DAILY NEWS, Aug. 6, 2017, at A4, attached to May 1, 2021 Office action TSDR p. 14. 9 Dianne Lawson, Extraordinary People: An Ode to Life, TOPEKA CAPITAL-J., Feb. 24, 2008, attached to May 1, 2021 Office action TSDR, p. 18. 10 HopeWay, https://hopeway.org/programs/integrative-therapies/art-therapy, attached to May 1, 2021 Office action, TSDR p. 12. 11 Teacher of the Day: Loretto Theology Teacher Is Registered Marriage Therapist, EL PASO TIMES, Sept. 23, 2002, at 3B, attached to May 1, 2021 Office action, TSDR p. 15. 12 See https://www.ahdictionary.com/word/search.html?q=play%20therapy2; March 20, 2020 Office action, TSDR p. 5. 13 See https://kidsincplaytherapy.com/what-is-play-therapy/ attached to October 4, 2020 Office action, TSDR p. 7-9. 14 See https://www.psychologytoday.com/us/therapytypes/play-therapy attached to May 1, 2021 Office action, TSDR p. 14. Serial No. 88467026 - 10 - significance is not removed or lessened. Consumers encountering the proposed mark REGISTERED PLAY THERAPIST will clearly understand that REGISTERED serves as a modifier to PLAY THERAPIST, and that the mark as a whole refers to a play therapist who has had his or her skills and knowledge officially qualified, certified or authenticated.15 Applicant’s specimen of use further confirms this finding. The specimen leads with the introduction that, “First established in 1992, the Association for Play Therapy (APT) now offers three credentials by which licensed mental health professionals and school counselors/psychologists might demonstrate and promote their specialized play therapy knowledge and training.”16 The two excerpted consumer testimonials from the specimen touting the benefits of becoming a “registered play therapist” shown below explain why Applicant’s proposed mark is highly descriptive of a feature of Applicant’s services: It communicates excellence - that my training and experience meet objective standards. It reflects my professional identity - it uniquely represents, in a way no general mental health license or credential could what I consider to be the most representative of [sic] who I am as a mental health professional. It gives me a niche - it reflects my specialty and interest areas. …. 15 The record also includes Internet and newspaper articles showing third-party use of the term “registered play therapist.” See, e.g., Michael Barrett, ‘On the Job’ with Registered Play Therapist Jessie Guest, GASTON GAZETTE, Sept. 16, 2019, “Jessie Guest is a licensed professional counselor and registered play therapist with Healing & Hope Counseling Center on South York Street” attached to March 20, 2020 Office action, TSDR pp. 50-51. Applicant dismisses the probative value of this evidence because most of these examples refer to play therapists credentialed by Applicant. Even if Applicant is correct, it does not impact our determination that Applicant’s proposed mark is highly descriptive of the identified services, which is already shown by the dictionary and specimen evidence. 16 Specimen, TSDR p. 5. Serial No. 88467026 - 11 - For me having the credential demonstrates that I am highly trained and competent in my field. I can say without a shadow of a doubt that I am a play therapist not just a therapist who uses play therapy techniques. I maintain my credential for professional benefits.17 Emphasis in original. Taken together, this evidence shows that Applicant’s proposed mark REGISTERED PLAY THERAPIST is highly descriptive of the identified services. See e.g., In re Sausser Summers PC, 2021 USPQ2d 618, at *12 (finding onlinetrademarkattorneys.com highly descriptive of “legal services”); In re Guaranteed Rate, Inc., 2020 USPQ2d 10869, at *3 (TTAB 2020) (third-party uses of the terms “guaranteed rate,” “guaranteed mortgage rate,” and “guaranteed interest rate” established GUARANTEED RATE is highly descriptive of mortgage-related services); In re Virtual Indep. Paralegals, 2019 USPQ2d 111512, at *11 (TTAB 2019) (combination of descriptive terms “virtual,” “independent,” and “paralegals” in claimed VIRTUAL INDEPENDENT PARALEGALS mark for paralegal services made mark “highly descriptive of those services”). In light of our determination, Applicant’s verified statement that the mark has become distinctive of the Applicant’s services by reason of substantially exclusive and continuous use in commerce for at least five years prior to June 10, 2019, the filing date of the application, is insufficient to prove acquired distinctiveness. And, although Applicant argues and submitted evidence of 28 years of use, this length of time alone is insufficient to establish 17 Id. at 4. Serial No. 88467026 - 12 - acquired distinctiveness given the highly descriptive nature of Applicant’s proposed mark.18 B. Evidence of Acquired Distinctiveness Having determined that ’REGISTERED PLAY THERAPIST is highly descriptive of the identified services and that Applicant’s evidence of longtime use is insufficient, standing alone, to prove acquired distinctiveness, we now examine Applicant’s further evidence in support of its claim of acquired distinctiveness: ● In addition to offering its identified services online, Applicant operates 42 brick-and-mortar branches throughout the United States. Each branch provides training, resources, and networking for play therapists.19 ● Applicant has credentialed over 2442 therapists under its REGISTERED PLAY THERAPIST mark, and each of these therapists “has seen hundreds, if not thousands, of patients and worked with an equally large number of parents and referring doctors, while using the REGISTERED PLAY THERAPIST mark with [Applicant’s] authorization.”20 ● 290 form declarations from mental health professionals from at least 34 states attesting to recognition of REGISTERED PLAY THERAPIST as a source indicator for Applicant’s services. In each declaration, the declarant provides their name, profession, length of time working in their field, whether they are a member of Applicant’s association and, if so, how long he or she has been a member. Each declarant avers, “I understand 18 ’Applicant relies on Paragraph No. 8 of the declaration of Applicant’s President and CEO, Kathryn Lebby (“Lebby Declaration”) attesting to “prominent and exclusive use” for over 28 years to support its 2(f) claim insofar as it pertains to Applicant’s use of REGISTERED PLAY THERAPIST. See September 11, 2020 Response to Office Action, Exhibit C, TSDR pp. 78-79. However, this statement does not meet the requirements of the statute which requires a statement of “substantially exclusive and continuous use.”’’ 19 Lebby Declaration, ¶ 5. 20 Id. at ¶¶ 9 and 10. Serial No. 88467026 - 13 - REGISTERED PLAY THERAPIST refers to the specialty credential provided and issued by a single entity, namely the Association for Play Therapy.”21 ● Applicant’s website, www.a4pt.org, has received over 7,500,000 views since 2006. In terms of social media presence, Applicant has over 27,500 Facebook followers, 5,500 Twitter followers, and its YouTube channel has 4,000 subscribers and over 35,000 views of its videos.22 ● “Every result in the first three pages of a Google search for ‘registered play therapist supervisor’ exclusively refers to Applicant and its credentialing services.”23 ● Unsolicited media recognition of Applicant and its services from 15 publications.24 Based on this evidence, Applicant argues that the designation REGISTERED PLAY THERAPIST “has become a well-recognized indicator of Applicant’s expertise in the area of play therapy and in particular its highly sought out credential verification services.”25 Applicant emphasizes that it is not attempting to rely solely on 28 years of use to prove acquired distinctiveness. Nonetheless, it asserts that the Examining Attorney ignored evidence that Applicant’s use of the mark is substantially exclusive, in light of the declaration of Applicant’s President and CEO, Kathryn Lebby, that Applicant is unaware of any third-party use of its mark.26 Applicant also maintains that the Examining Attorney incorrectly “reviewed each 21 See March 26, 2021 Request for Reconsideration, TSDR pp. 90-379. 22 Lebby Declaration, ¶¶ 6 and 7. See September 11, 2020 Response to Office Action, Exhibit C, TSDR pp. 78-79, 85, 87, and 88. 23 September 11, 2020 Response to Office Action, Exhibit 4, TSDR pp. 87-90. 24 March 26, 2021 Request for Reconsideration, TSDR pp. 401-447; and 449-464. 25 Applicant’s Brief, p. 3; 12 TTABVUE 4. 26 Lebby Declaration, ¶ 12. See September 11, 2020 Response to Office Action, Exhibit C, TSDR pp. 78-79. Serial No. 88467026 - 14 - individual piece of evidence in a vacuum and dismissed them one by one, never once considering the impact and weight of all of the evidence together.”27 Having carefully reviewed the totality of the evidence of record, we agree with the Examining Attorney that Applicant has failed to establish acquired distinctiveness of its proposed mark within the meaning of Section 2(f). We reiterate that Applicant bears the burden of establishing acquired distinctiveness, which given the highly descriptive nature of REGISTERED PLAY THERAPIST, requires an elevated level of proof. Applicant touts its operation of over 42 locations, provision of its services online, and its credentialing over 2442 play therapists. While we acknowledge that Applicant provides services in a specialized field and enjoys commercial success, Without any context for these figures in the play therapy industry, we are unable to gage their significance. Cf. Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1480 (TTAB 2016) (probative value of sales revenue figures quantified as doses sold is diminished by the fact that the amount is just a raw number without context as to applicant’s market share or whether this amount is significant in the industry). We further acknowledge that affidavits or declarations that assert recognition of the mark as a source indicator are relevant in establishing acquired distinctiveness. However, the value of the affidavits or declarations depends on the statements made and the identity of the affiant or declarant. See e.g, In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1633 (Fed. Cir. 2003) (“these affidavits, thus conclusory worded, 27 Id. at 18; 12 TTABVUE 5. Serial No. 88467026 - 15 - fail to explain what it is about Pacer’s adhesive container cap that is unique or unusual, or distinctive from those of its competitors.”); In re Chem. Dynamics Inc., 839 F.2d 1569, 1571, 5 USPQ2d 1828, 1830 (Fed. Cir. 1988) (finding conclusionary declaration from applicant’s vice-president insufficient without the factual basis for the declarant’s belief that the design had become distinctive); Taking a close look at the substance of the 290 declarations submitted by Applicant, we note that each is worded in a conclusory manner with no explanation as to why Applicant’s mark is distinctive. See Each declarant summarily states “I understand ‘REGISTERED PLAY THERAPIST’ refers to the specialty credential provided and issued by a single entity, namely, the Association for Play Therapy” and nothing more. As to identity, of the 290 declarants, only 11 are not members of Applicant’s organization (i.e. play therapists credentialed by Applicant). Hence, for the majority of declarants, their awareness of Applicant is based on their membership in Applicant’s organization.28 Additionally, the majority of the statements in the declaration are presented in a True-False format. It is obvious from the formatting of these true-false responses, made pursuant to a request from Applicant upon whose membership they depend for accreditation, which answer they should select. These declarations are, thus, to some degree, self-serving and entitled to less weight in determining acquired distinctiveness. See In re Pennzoil Prods. Co., 20 USPQ2d 1753, 28 “Because of my membership with Association for Play Therapy, I am familiar with the services it provides.” See declarations attached to March 26, 2021 Request for Reconsideration, TSDR pp. 90-379. Serial No. 88467026 - 16 - 1758 (TTAB 1991) (declarations from nine marketers of oil products who have business relationships with the applicant “lack persuasiveness on the issue of the primary significance of the [proposed mark] to the purchasing public.”). Consumer declarations from parents of patients and referring doctors would have been more relevant. Indeed, according to Ms. Lebby, “hundreds, if not thousands of” parents and referring doctors have been exposed to Applicant’s proposed mark.29 Ms. Lebby further states that Applicant’s customers “in general … are mental health professionals and medical providers who refer patients for therapy.”30 Therefore, only a miniscule percentage of declarations originate from Applicant’s largest customer base. The remaining declarations from non-members are few in number, comprising a very small portion of those submitted. See In re The Paint Prods. Co., 8 USPQ2d 1863, 1866 (TTAB 1988) (finding ten declarations not persuasive). Furthermore, 4 of the 11 non-member declarants are located in the same medical facility, reflecting a lack of diversity. See In re Pacer Tech., 67 USPQ2d at 1633 (criticizing form declarations for lack of customer diversity). Some degree of geographic and customer diversity would have strengthened their probative value. See In re Florists’ Transworld Delivery Inc., 106 USPQ2d 1784, 1793-94 (TTAB 2013) (criticizing form declarations for lack of geographic diversity). 29 Lebby Declaration, ¶¶ 9 and 10. 30 Lebby Declaration, ¶ 9. Serial No. 88467026 - 17 - Turning now to the Google search results, by way of illustration, we reprint the first page of results below:31 31 September 11, 2020 Response to Office Action, Exhibit 4, TSDR p. 88. Serial No. 88467026 - 18 - Serial No. 88467026 - 19 - We disagree with the Examining Attorney’s assertion that this evidence is of “no probative value in that it illustrates little more than applicant’s size, marketing and promotional efforts, and the quality of the search engine optimization techniques that may be used.”32 Prior Board decisions have held otherwise. See, e.g., In re Country Music Ass’n, Inc., 100 USPQ2d 1824, 1834 (TTAB 2011) (finding Applicant’s expenditure of resources “to ensure that when Internet users type the phrase ‘Country Music Association’ into an Internet search engine, the first hit that appears on a search results list is a link to the home page of applicant’s website”’ probative of acquired distinctiveness). The fact that the first several pages of the results refer to Applicant has a bearing on the acquired distinctiveness determination and weighs in Applicant’s favor. See id. The Examining Attorney also criticizes the Google search results on the basis that there is no data as to how many consumers actually have viewed the pages listed in the search result, and that Applicant has provided no direct evidence from any of the visitors to its website that they recognize REGISTERED PLAY THERAPIST as a source-identifying designation for Applicant’s services. We do, however, have in the record evidence that Applicant’s website, www.a4pt.org, has had over 7.5 million views since 2006. For these reasons, we have considered the Google search results as part of the mixture of overall evidence Applicant presents in support of its claim of acquired distinctiveness. The search results, along with the social media evidence (i.e. number of Facebook and Twitter followers) and YouTube videos views together 32 Examining Attorney Brief, 14 TTABVUE 22. Serial No. 88467026 - 20 - show some degree of consumer recognition and therefore cannot be completely discounted. Lastly, we consider the unsolicited media references of Applicant’s proposed mark from the following publications: Healthline, University of Arkansas News, The Middletown Press, The Cullman Times, Times Record, McAlester-News Capital, Nebraska City-News Press, AZ Daily Sun, The Shawnee News-Star, The Chattanoogan.com, Counseling Today, Cape Gazette, Commonwealth Journal, and California Democrat.33 Most of the coverage is from local, state, and regional publications. While we have considered this evidence as indicative of some public recognition, it is less persuasive than would be media mentions from publications with a national circulation. In sum, when viewed in its entirety, we find Applicant’s evidence fails to demonstrate acquired distinctiveness. Given the highly descriptive nature of Applicant’s mark, Applicant is obliged to adduce a great deal more evidence to meet its burden of proof. See, e.g., In re JC Hosp. LLC, 802 Fed. Appx. 579, 2020 USPQ2d 10067 (Fed. Cir. 2020) (Board correctly determined that a higher burden of proof was required to show acquired distinctiveness for Applicant’s highly descriptive mark THE JOINT for “entertainment services, namely live musical performances, shows, and concerts; and nightclub services” and “restaurant, bar and catering services”; evidence of over $12 million in marketing expenditures, total gross revenue over $104 million, social media presence (e.g., Yelp and TripAdvisor forums, and YouTube) was 33 March 26, 2021 Request for Reconsideration, TSDR pp. 10-11. Serial No. 88467026 - 21 - insufficient); In re Crystal Geyser Water Co., 85 USPQ2d 1374 (TTAB 2007) (holding applicant’s evidence of acquired distinctiveness, including a claim of use since 1990, sales of more than 7,650,000,000 units of its goods, and extensive display of its mark CRYSTAL GEYSER ALPINE SPRING WATER on advertising and delivery trucks and promotional paraphernalia, insufficient to establish that the highly descriptive phrase ALPINE SPRING WATER had acquired distinctiveness for applicant’s bottled spring water). We acknowledge that Applicant is not providing general consumer goods or services where we typically we would expect to see very large sums of sales and advertising figures in order to find that a term has acquired distinctiveness. Here, however, the record is devoid of any evidence regarding annual revenues and advertising expenditures. While the evidence does point to some consumer recognition of Applicant and its commercial success, it fails to rise to the level of demonstrating acquired distinctiveness for Applicant’s highly descriptive mark.34 34 Applicant in its brief points to similarly structured REGISTERED formative-marks that have been granted registration either on the Principal Register under Section 2(f) or on the Supplemental Register. Applicant’s Brief, pp. 14-15; 12 TTABVUE 15-16. See March 26, 2021 Request for Reconsideration, Exhibit E, TSDR pp. 466-508. However, we are not privy to the underlying records of any of these third-party registered marks. Further, the USPTO is not bound by a decision of a Trademark Examining Attorney who examined and allowed an application for a previously registered mark, based on a different record. See In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“The PTO is required to examine all trademark applications for compliance with each and every eligibility requirement ...”); 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 [applicant’s] application, the PTO’s allowance of such prior registrations does not bind the Board or this court.”). Serial No. 88467026 - 22 - Decision: The refusal to register Applicant’s mark on the Principal Register, in the absence of persuasive evidence of acquired distinctiveness under Trademark Act Section 2(f), is affirmed.35 35 Having affirmed the refusal of registration under Section 2(e)(1) and on the failure to establish acquired distinctiveness, we need not consider the alternate refusal of registration on the ground of genericness. See In re La. Fish Fry Prods., 116 USPQ2d at 1265 (“We do not need to reach the Board’s genericness determination because we hold that substantial evidence supports the Board’s determination that Louisiana Fish Fry failed to show that FISH FRY PRODUCTS has acquired distinctiveness.”).