Continum Care Corp.

Trademark Trial and Appeal Board

Aug 29, 2001

No. 75026799 (T.T.A.B. Aug. 29, 2001)

8/29/01

Paper No. 23
HRW

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Continuum Care Corporation
________

Serial No. 75/026,799
_______

Michael A. Slavin of McHale & Slavin, P.A.
for Continuum Care Corporation.

Maureen Beacom Gorman, Trademark Examining Attorney, Law
Office 111 (Craig Taylor, Managing Attorney).
_______

Before Quinn, Wendel and Holtzman, Administrative Trademark
Judges.

Opinion by Wendel, Administrative Trademark Judge:

Continuum Care Corporation has filed an application to
register the proposed mark CONTINUUM CARE for the services,
as amended, of “assisted living facility and retirement
home.”1
Registration has been finally refused under Section
2(e)(1) on the grounds that the proposed mark is generic

1 Serial No. 75/026,799, filed December 1, 1995, claiming first
use dates of June 1992. The application was subsequently amended
to one seeking registration under the provisions of Section 2(f).
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/026,799
2
and, if not generic but rather only merely descriptive,
that the evidence of acquired distinctiveness is
insufficient for registration under Section 2(f).
Applicant and the Examining Attorney have filed briefs, but
an oral hearing was not requested.2
The issues before us are whether the phrase CONTINUUM
CARE, when used in connection with applicant’s assisted
living facility and retirement home services, is generic,
or, if not generic, whether the phrase has acquired
distinctiveness as would permit registration under Section
2(f). If generic, the designation is by definition
incapable of indicating source. See In re Merrill Lynch,
Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4 USPQ2d
1141 (Fed. Cir. 1987). If not generic, since applicant has
amended the application to one seeking registration under
Section 2(f), the phrase has been conceded to be merely
descriptive and the only question is whether it is
registrable on the basis of acquired distinctiveness. See

2 During the course of prosecution the case was assigned to two
different Examining Attorneys and the brief was written by a
third. We would advise this last attorney that it is not
necessary, or even warranted, to attach copies of Office actions
and the like, to the appeal brief. The entire record is before
the Board and it is assumed that applicant already has copies of
the same. Duplication of any more than highly pertinent evidence
is simply a waste of resources.
Ser No. 75/026,799
3
In re Leatherman Tool Group Inc., 32 USPQ2d 1443 (TTAB
1994).3
We turn first to the issue of genericness. The burden
of proof is on the Office to show by “clear evidence” that
CONTINUUM CARE is a generic designation for the services of
applicant. See In re Merrill Lynch, 4 USPQ2d at 1143.
Evidence of whether the relevant public’s perception of the
designation is as a generic reference or as an indication
of source may be obtained from any competent source,
including newspapers, magazines, dictionaries, catalogs and
other publications. See In re Northland Aluminum Products,
Inc., 777 F.2d 1556, 227 USPQ 961 (Fed. Cir. 1985); In re
Leatherman Tool Group, Inc., supra.
The Examining Attorney maintains that the phrase
CONTINUUM CARE is a generic designation for a type of
health care outside of a hospital setting or for services
that provide long term health care in a home like

3 We note that applicant, in its brief, continues to argue that
its mark is suggestive, and in the alternative, that if
descriptive, its mark has acquired distinctiveness. Applicant,
however, amended its application to one seeking registration
under the provisions of Section 2(f) after receiving a final
refusal under Section 2(e)(1) on the grounds of descriptiveness.
(Amendment After Final, filed April 27, 1999). In a later
response, applicant succinctly stated that “Applicant chose not
to appeal this matter, but rather seek registration under Section
2(f).” (Response, August 26, 1999). Thus, we find this amendment
to be unequivocal, and not to have been made in the alternative.
Cf. TMEP §1212.02(c). As a result, applicant has conceded that
its mark is merely descriptive.
Ser No. 75/026,799
4
environment, such as applicant’s. During the course of
refusing registration of the phrase first under Section
2(e)(1) on the ground of being merely descriptive and
subsequently as being generic, she has made of record
numerous articles obtained from the Internet, as well as
excerpts of articles obtained from the Nexis database, in
support of her position. While the total of forty-two
references show a variety of usages of the phrase
“continuum care” for services in the health care field, the
following are representative of those highly relevant to
the present issue:
Christian Care Centers Inc.: Full Continuum Care
Retirement Communities, Independent Living apartments,
Assisted Living Apartments...
(www.d.fwmall.com);

The Lutheran Home: River Falls, a skilled nursing
facility, is attached to WelLHaven Apartments by
a heated walkway offering the added convenience of
continuum care, if needed.
(www.lutheranhome.org);

Another trend is the continuum care facilities, where
a person can live independently or with nursing
assistance or skilled nursing treatment.
(The Bakersfield Californian, November 9, 1997);
Elder Options of Texas- Retirement and Continuum
Care Communities
(www.elderoptionsoftexas.com);

Brookline Village, State College, PA 16801 –
Continuum care retirement community offering
independence and health care
(www.psu.edu);
Ser No. 75/026,799
5

THE PARKS METHODIST RETIREMENT VILLAGE: Grand opening
festivities are under way for this continuum care
facility. Expansion has nearly doubled the number of
residents served. Parks Methodist will be the only
facility in the city with full continuum of care,
which will include 55 independent living patio homes
and cottages, 23 assisted living apartments and 90
long-term care beds in the nursing facility.
(www.oaoa.com);
Robert Greenwood, a spokesman for the American
Association of Homes and Services for the Aging, said
many retirement communities are expanding services to
maintain residents as they age.
“I think it’s a trend for retirement communities to
offer continuum-care services. The market is
responding to what consumers want and that is to
continue living in the same environment as they age,”
Greenwood said.
(www.amcity.com);

“Because people are living longer, continuum-care
centers are springing up all over the place,”
Weissman said.
(The Kansas City Star, December 24, 1995);
The firm has done many senior living continuum-care
facilities.
(Tulsa World, April 24, 2000); and

In 1988, the NYS Legislature approved the site for a
600-unit continuum-care housing project and nursing
home on the northwest quadrant of Pilgrim State
Hospital. The project is to consist of 282
independent living units (for those needy senior
citizens who need no nursing care) ... The rest of
the units are to be included in a congregate care-
nursing facility.
(LI Business News, June 22, 1992).
Ser No. 75/026,799
6
Applicant contends that “continuum care” in general is
not generic but rather a species of “institutional care.”
Applicant agrees that continuum care is a type of care
provided outside of a hospital setting, but argues that
this care may include many different variations including
institutional and home care, long term and short term care.
Even these, according to applicant, can be further divided.
For example, institutional care has several subspecies such
as retirement care, substance abuse care, and convalescence
care. Applicant maintains that continuum care is not the
common term used for these various types of care provided
outside of a hospital but rather only suggestive of a
category of service provided.
Applicant points to dictionary definitions of the
separate words “continuum” and “care” and, on this basis,
argues that the phrase as a whole could have several
different meanings to the public. For instance, applicant
contends, the phrase could mean the same type of care as at
home and could apply to day care centers as well as to
retirement homes; it could mean the same care as was
received in a hospital of some specific type; or, it could
mean the same level of care in the future as in the past.
While “continuum care” has been applied to care outside of
a hospital, applicant argues that these various services
Ser No. 75/026,799
7
are not interchangeable and thus the phrase is not generic
for either a type of care or facility. Instead, applicant
insists, “continuum care” is only suggestive of the type of
care which may be provided at many different institutions.
In its supplemental brief, applicant argues that the
Examining Attorney has supported her refusal based on
genericness with only a modest number of uses of the
phrase, most of which are subsequent to applicant’s
commencement of use of its mark. Applicant contends that
the Examining Attorney’s evidence has failed to demonstrate
that the primary significance of the phrase is as a generic
designation. Applicant states that it has conducted
Internet research to determine whether there is widespread
usage of the phrase in a generic manner and has determined
that the phrase “continuum of care” is most often used in
reference to services of this nature and only a few
actually used “continuum care.” Applicant thus concludes
that “continuum care” is not generic for either a type of
facility or a type of care outside of a hospital.
The critical issue in determining genericness is
whether members of the relevant public primarily use or
understand the designation sought to be registered as a
reference to the genus or category of services in question.
See H. Marvin Ginn Corp. v. International Association of
Ser No. 75/026,799
8
Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528 (Fed. Cir.
1986). In making our determination, we follow the two-step
inquiry set forth in Marvin Ginn and recently reaffirmed by
the Court in In re American Fertility Society, 188 F.3d
1341, 51 USPQ2d 1832 (Fed. Cir. 1999), namely:
(1) What is the genus or category of services at
issue?, and

(2) Is the designation sought to be registered
understood by the relevant public primarily
to refer to that genus or category of services?

In a broad sense it would appear that the genus or
category of services involved here are retirement or
assisted living facilities. As such, “continuum care” is
not the designation used to refer to such facilities; they
are retirement or assisted living facilities.
Our inquiry, however, does not stop at this point. As
we pointed out in In re Central Sprinkler Co., 49 USPQ2d
1194 (TTAB 1998), a product, or in this case, a service,
may fall into more than one category. In that case, the
term sought to be registered was ATTIC and the goods
involved were automatic sprinklers for fire protection.
Although the goods in a broad sense were sprinklers for
fire protection, the Board found that the term “attic”
would also be understood by the public as referring to a
narrower category of such sprinklers, namely, those for the
Ser No. 75/026,799
9
fire protection of attics. Thus, ATTIC was found to be a
generic designation for goods of this type.
In making this determination, the Board recognized
that the applicant’s proposed mark did not fall within the
classic case of a generic noun, but rather would be more
accurately characterized as a generic adjective.4
Nonetheless, the Board held that because the term “attic”
“directly names the most important or central aspect or
purpose of applicant’s goods, that the sprinklers are used
in attics, this term is generic and should be freely
available for use by competitors.” Id. at 1199. See also
In re Northland Aluminum Products, Inc., supra, (BUNDT
generic for coffee cake); In re Sun Oil Co., 426 F.2d 401,
165 USPQ 718 (CCPA 1970)(CUSTOMBLENDED for gasoline); In re
Helena Rubinstein, Inc., 410 F.2d 438, 161 USPQ 606 (CCPA
1969)(PASTEURIZED for face cream); In re Pennzoil Products
Co., 20 USPQ2d 1753 (TTAB 1991)(MULTI-VIS for motor oil);
In re Reckitt& Colman, North America Inc., 18 USPQ2d 1389
(TTAB 1991)(PERMA PRESS for soil and stain remover).

4 Note discussion in 2 J.T. McCarthy, McCarty on Trademarks and
Unfair Competition, Section 12:10 (4th ed. 2001), that the general
rule of thumb that generic names are nouns and descriptive terms
are adjectives does not accurately describe the results in case
law. As stated by McCarthy, “To be generic, a term need not
directly name the product, but may name some distinctive
characteristic of that genus of products.”
Ser No. 75/026,799
10
Here we find the phrase “continuum care” to be used in
the health care industry to define a type of continuing
care outside of a hospital setting. While the phrase may
be applicable to services over a broad spectrum of the
health care field, we find the evidence of record clearly
establishes that the phrase is often used in particular
with retirement and assisted living facilities.5 If the
retirement home is one in which a continuum of care for the
elderly persons living there is provided, the facility is
referred to as a “continuum care” home. The evidence,
especially the Internet and Nexis excerpts introduced by
the Examining Attorney, clearly shows that there is a
growing trend for retirement communities of the continuum
care variety and that there would be public awareness of
the applicability of the phrase to facilities of this
nature. Applicant’s own specimens and advertisements
demonstrate that applicant’s services not only fall within
this variety of facility, but are promoted in such a
generic sense.6

5 Despite applicant’s arguments to the contrary, we find the
amount of evidence produced by the Examining Attorney of the use
of the specific term “continuum care”, and particularly in
connection with retirement home facilities, more than adequate.
6 Applicant’s specimens use “Continuum Care” as a descriptor of
the “Rockwood Health Care Center,” together with the statement
“Long term commitment to quality care in a home like
environment.” Applicant’s advertisements include statements such
as “Continuum Care at Sykesville.”
Ser No. 75/026,799
11
Thus, while applicant may argue that continuum care is
only a “species” of institutional care, we find this
subcategory to be generic as well. Just as ATTIC was found
to be generic for a particular category of sprinklers,
CONTINUUM CARE is generic for a particular type of health
care that is available at certain retirement and assisted
living facilities. If the facility is one of this nature,
then its owner should be free to so describe its services.
While applicant relies upon general dictionary
definitions of the separate components of the phrase
“continuum care” for its argument that the phrase may be
interpreted in various manners by the public, this argument
is counterbalanced by the clear evidence of record that
there has been widespread use of the phrase “continuum
care” as a whole in connection with a continuum of health
care and, in particular, with the continuum-type of health
care services involved here, and that the public would so
interpret the phrase. Although there may be other equally
well recognized usages of the term as a whole in the health
care field, this does not detract from the generic
significance of the term when used in connection with
retirement and assisted living facilities. The relevant
public would immediately recognize the use of the phrase to
Ser No. 75/026,799
12
designate a specific type of health care available at these
facilities.
Finally, applicant’s argument that most of the uses
relied upon by the Examining Attorney were subsequent to
applicant’s first uses of its alleged mark is to no avail.
Even if applicant were the first user of the phrase, and
there is evidence that this is not the case, subsequent use
by others in a generic sense cannot be disregarded. See In
re Audio Book Club, Inc., 52 USPQ2d 1042 (TTAB 1999). The
question is whether the primary significance of the phrase
to the relevant public is as a generic designation at the
time at which the term is sought to be registered.
Accordingly, we find the phrase CONTINUUM CARE to be
generic when used in connection retirement homes and
assisted living facilities such as applicant’s in which
health care services of this particular type are available.
As such, the phrase is incapable of identifying and
distinguishing applicant’s services from those of others
and thus incapable of registration under the provisions of
Section 2(f), regardless of the evidence submitted
thereunder.
In the interests of completeness, however, we have
also considered the evidence introduced by applicant in
support of its claim of acquired distinctiveness under
Ser No. 75/026,799
13
Section 2(f). For purposes of this review, we assume that
CONTINUUM CARE is merely descriptive, rather than generic,
when used in connection with applicant’s services.
Nonetheless, the phrase is still highly descriptive, and
thus the burden on applicant to establish distinctiveness
is proportionally greater. See Yahama International Corp.
v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 6 USPQ2d 1001
(Fed. Cir. 1988).
Applicant’s evidence consists of a declaration of
continuous and exclusive use since 1992 and spread sheets
showing a revenue for its 15 facilities for the year ending
3/31/99 of approximately $31 million and advertising
expenses in 1998-1999 of around $60,000–$94,000.7 The
Examining Attorney argues that this evidence is inadequate
to overcome the 2(e)(1) refusal; that the advertising
expenditures are minimal; and that applicant has failed to
demonstrate that this advertising was spent on associating
the mark CONTINUUM CARE with applicant, as opposed to the
name of a particular facility.
Applicant argues that the continuous and exclusive use
of its mark for eight years is prima facie evidence of its

7 The Examining Attorney has noted that applicant’s originally
submitted spread sheets showed expenditures of around $60,000 for
these two years, while figures submitted with applicant’s brief
totaled around $94,000 for the same period.

Ser No. 75/026,799
14
acquired distinctiveness. In addition, applicant has
attached to its brief additional evidence of its manner of
use of the phrase CONTINUUM CARE in advertising and of its
expenditures therefor, which applicant argues supports its
claim of distinctiveness.8
The major deficiency in applicant’s claim of
distinctiveness, however, lies in the absence of any
evidence of applicant’s promotion of CONTINUUM CARE as its
mark for its various facilities or of public recognition of
the mark as an indicator of a single source for these
services. Regardless of the years of use or the amount of
advertising expenditures, applicant is under the burden of
showing that the mark has acquired distinctiveness in the
eyes of the public, i.e., that its advertising and
promotional efforts have resulted in the recognition of
CONTINUUM CARE as an indicator of the source of these
services, rather than as a descriptor of the type of
services offered at these facilities. See In re Audio Book
Club, Inc., supra, (inadequate evidence to establish that
advertising and promotional efforts resulted in recognition
of AUDIO BOOK CLUB as indicator of source of services,

8 While the evidence attached to applicant’s brief was clearly
untimely under Trademark Rule 2.142(d), the Examining Attorney
has not objected to the same but rather has taken the evidence
under consideration. Accordingly, we have also considered the
attached exhibits.
Ser No. 75/026,799
15
rather than as name of new category of “book club”
services).
Applicant’s evidence is sorely lacking with respect to
any promotional efforts to advance CONTINUUM CARE as its
mark. For example, in the advertising attached to its
brief at Exhibit D we find advertisements for “Continuum
Care at Sykesville” or for “Continuum Court Yards.” The
first usage would readily be viewed by the public as a
description of the type of care available at the
Sykeseville facility, whereas the second is not even an
example of usage of the mark sought to be registered.
There is no direct evidence whatsoever of the actual
recognition by the purchasing public of the phrase
CONTINUUM CARE, as used by applicant, as an indication of
origin.
Accordingly, we find that, even if the phrase
CONTINUUM CARE is found to be merely descriptive, rather
than generic, the evidence submitted by applicant is
insufficient to demonstrate acquired distinctiveness under
Section 2(f).

Ser No. 75/026,799
16
Decision: The refusal to register CONTINUUM CARE on
the ground that the phrase is generic is affirmed. In the
alternative, if the phrase is found to be merely
descriptive, the refusal to register on the ground that
applicant’s evidence is insufficient to demonstrate
acquired distinctiveness under Section 2(f) is also
affirmed.