National Council for Therapeutic Recreation Certifica-tion, Inc.

Trademark Trial and Appeal Board

Sep 15, 2006

No. 75701344 (T.T.A.B. Sep. 15, 2006)

Hearing: Mailed: September 15, 2006
July 12, 2006 PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re National Council for Therapeutic Recreation
Certification, Inc.
________

Serial No. 75701344
_______

David M. Kelly and Linda K. McLeod of Finnegan Henderson
Farabow Garrett & Dunner, L.L.P. for National Council for
Therapeutic Recreation Certification, Inc.

Michael S. Levy, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Hohein, Hairston and Zervas, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

An application has been filed by the National Council
for Therapeutic Recreation Certification, Inc. to register
CERTIFIED THERAPEUTIC RECREATION SPECIALIST on the
Principal Register in standard character form as a
certification mark for “recreational therapy and
THIS OPINION IS CITABLE AS
PRECEENTF THE TTAB
THIS DISPOSITION IS NOT
CITABLE AS PREC DENT OF
THE TTAB
Ser No. 75701344
2
recreational therapy counseling.”1 Applicant’s
certification statement reads as follows: “The
certification mark, as used by persons authorized by the
certifier, certifies that the designated person meets the
certifier’s standards of competence in the field of
recreation therapy and recreational therapy counseling, as
indicated by experience and educational and training
requirements, and the passage of a written examination.”
During prosecution, the application was amended to seek
registration pursuant to Section 2(f) of the Trademark Act,
15 U.S.C. §1052(f), based on applicant’s claim that the
designation CERTIFIED THERAPEUTIC RECREATION SPECIALIST has
become distinctive of applicant’s services.
The trademark examining attorney has finally refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. §1052(e)(1), on the ground that the designation
CERTIFIED THERAPEUTIC RECREATION SPECIALIST is either a
generic term for applicant’s services, or in the
alternative, that such designation is at least merely
descriptive of such services and the showing of acquired
distinctiveness furnished by applicant is insufficient to

1 Application Serial No. 75701344, filed May 6, 1999, alleging
dates of first use anywhere and in commerce of April 1982.
Ser No. 75701344
3
establish that the designation has become distinctive of
applicant’s services.
Applicant has appealed. Briefs have been filed and an
oral hearing was held before the Board.
Summary of arguments
The examining attorney argues that the “genus of the
services” in this case is “therapeutic recreation
specialists who have been certified” (Examining Attorney’s
Brief at 16-17); that the evidence of record shows
“CERTIFIED” and “THERAPEUTIC RECREATION SPECIALIST” to be,
individually, generic; and that the joining of these terms
creates a compound word in the same manner as did the term
SCREENWIPE in In re Gould Paper Corp., 834 F.2d 1017, 5
USPQ2d 1110 (Fed. Cir. 1987). According to the examining
attorney, CERTIFIED THERAPEUTIC RECREATION SPECIALIST may
be found to be a compound word, notwithstanding that it
consists of more than two words with spaces between them.
Alternatively, the examining attorney argues that the
evidence of record shows that the relevant public
understands CERTIFIED THERAPEUTIC RECREATION SPECIALIST
itself to primarily refer to the genus of services in this
case. With respect to applicant’s claim of acquired
distinctiveness, the examining attorney argues that “the
Board does not need to examine the evidence submitted by
Ser No. 75701344
4
applicant in support of its Section 2(f) claim” because “no
amount of secondary meaning can rescue a generic
designation.” (Applicant’s Brief at 12). Nonetheless,
having reviewed applicant’s evidence of acquired
distinctiveness, the examining attorney maintains that at
most, the evidence shows that applicant’s certification
services have achieved commercial success, but not that the
designation CERTIFIED THERAPEUTIC RECREATION SPECIALIST has
become distinctive of applicant’s certification services.
Applicant, in urging reversal of the refusal to
register, argues that the examining attorney “has
improperly construed the genus at issue too narrowly.”
(Applicant’s Brief at 8). Applicant maintains that the
genus of services consists of the certification process
itself, as well as all of the factors involved in the
certification process, e.g., establishing evaluative
standards for the certification and recertification of
professionals, monitoring adherence to these standards by
the certificants, offering on-line verification services,
and promoting the availability and benefits of
certification. Further, applicant argues that the
examining attorney’s reliance on Gould is misplaced; that
the designation CERTIFIED THERAPEUTIC RECREATION SPECIALIST
is a phrase consisting of multiple words, not a compound
Ser No. 75701344
5
word; and therefore akin to the designation SOCIETY FOR
REPRODUCTIVE MEDICINE which was found to be a phrase in In
re American Fertility Society, 188 F.3d 1341, 51 USPQ2d
1832 (Fed. Cir. 1999). Applicant argues that the examining
attorney has not established by clear evidence that the
designation CERTIFIED THERAPEUTIC RECREATION SPECIALIST is
a generic term for applicant’s services because the vast
majority of uses of “therapeutic recreation specialist” and
“certified therapeutic recreation specialist” submitted by
the examining attorney are references to persons certified
by applicant. Further, applicant argues that certification
marks serve an important role in protecting critical public
interests; and that the relevant public has relied upon the
designation CERTIFIED THERAPEUTIC RECREATION SPECIALIST in
making health-related decisions. Finally, applicant argues
that it has presented substantial evidence to demonstrate
that the designation CERTIFIED THERAPEUTIC RECREATION
SPECIALIST has become distinctive of applicant’s
certification services.
The Record
The examining attorney and applicant have submitted
extensive evidence in support of their respective
positions.
Ser No. 75701344
6
Examining attorney’s evidence
To demonstrate that the individual terms “certified”
and “therapeutic recreation specialist” are generic, and
that the composite designation “certified therapeutic
recreation specialist” is generic as applied to applicant’s
services, the examining attorney submitted numerous
excerpts of stories from searches of the NEXIS database.
With his November 18, 1999 Office action, the examining
attorney submitted excerpts of stories from searches of “NO
CAPS (CERTIFIED THERAPEUTIC RECREATION SPECIALIST)” and “NO
CAPS (THERAPEUTIC RECREATION SPECIALIST).” The former
search retrieved 69 stories of which the examining attorney
made of record 26 stories; the latter search retrieved 218
stories of which the examining attorney made of record 10
stories.
With his June 12, 2003 Office action, the examining
attorney submitted excerpts of stories from searches of “NO
CAPS (CERTIFIED SERVICE PROVIDER)” and “NO CAPS (CERTIFIED
PROVIDER).” The former search retrieved 209 stories of
which the examining attorney made of record 19 stories; the
latter search retrieved 388 stories of which the examining
attorney made of record 20 stories. Also with this Office
action, the examining attorney submitted excerpts of
stories from an updated search of “NO CAPS CERTIFIED
Ser No. 75701344
7
THERAPEUTIC RECREATION SPECIALIST” and a search of “NO CAPS
(THERAPEUTIC RECREATION SPECIALIST) AND NOT CERTIFIED.”
The former search retrieved 74 stories of which the
examining attorney made of record 39 stories; the latter
search retrieved 183 stories of which the examining
attorney made of record 40 stories.
The following are representative examples of uses of
“certified provider” and “certified service provider”:
Microsoft will offer direct support as an option,
and is expanding the program so systems
integrators and resellers can be certified
service providers, too.
(InformationWeek, February 10, 2003);

Volland Electric Equipment has been named by
Rockwell Reliance Electric as a certified service
provider. That means it has exclusive access to
information files for the commercial repair of
any Rockwell Reliance motor, drive and gearbox.
(Buffalo News, November 25, 2001);

People who get health and personal care in their
homes from Medicare-certified providers can now
get more information about how good that care is.
(The Charleston Gazette, May 3, 2003);

Since the last meeting in February, Children
Services officials checked the names of 520
county-certified providers and found they had
investigated 221 - 43 percent – for abuse or
neglect.
(Columbus Dispatch, March 27, 2003); and

The centers are staffed with career counselors.
Funds are available to eligible individuals to
pay for training from one of more than 40
certified providers.
(The Virginian-Pilot, June 27, 2002).

Ser No. 75701344
8
The following are representative examples of uses of
“therapeutic recreation specialist”:
“The idea is to create a playground where
individuals of all abilities can play together,”
said Elaine Adams, therapeutic recreation
specialist for Chattanooga Parks, Recreation,
Arts and Culture.
(Chattanooga Times Free Press, April 13, 2003);

Before being one of the four coaches for the
wheelchair basketball team, Winterstein was a
therapeutic recreation specialist at the
Rehabilitation Institute of Michigan in Detroit.
As part of her job, she introduced sports into
the lives of people with disabilities to help
them develop socially and physically.
(Detroit Free Press, December 12, 2002);

Christina Bishop, a therapeutic recreation
specialist with the county Recreation Department,
will talk to parents about the programs available
to young children, such as gymnastics class,
which is open to children age 1 and older who are
walking; and for 3- and 4-year olds, self-defense
class and dance class.
(The Washington Post, April 18, 2002);

Recreation therapists, also referred to as
therapeutic recreation specialists, provide
treatment services and recreation activities for
individuals with disabilities, illnesses or other
disabling conditions.
(The San Diego Union-Tribune, December 17, 2001);

“We were happy to have this unique program in the
county, because it is hard for parents to find
any activities for kids with multiple
disabilities,” said Charlie Butler, a therapeutic
recreation specialist for the Montgomery
Recreation Department.
(The Washington Post, May 16, 1996);

Hospital has openings for a GS 4 clerk-typist, GS
4-9 psychiatric nurse; GM (merit pay) 14
supervisory psychiatric nurses; GS 7-9 education
Ser No. 75701344
9
therapist, and GS 9 openings for a therapeutic
recreation specialist, medical technologist and
vocational rehabilitation specialist.
(The Washington Post, August 29, 1986);

Each patient in the rehabilitation program is
assigned a therapeutic recreation specialist who
develops an individualized treatment plan
designed to help them develop skills and
techniques for dealing with real-life…
(The Atlanta Journal and Constitution, October
28, 1999);

Debbie Williams, the pool’s therapeutic
recreation specialist, has seen scores of
patients rehabilitated since the aqua therapy
opened in February 1998.
(The Daily Oklahoman, September 7, 1999); and

“We get a large number of kids who are at risk,”
explains Randi L. Klein, one of PAL’s therapeutic
recreation specialists.
(The Village Voice, August 10, 1999).

The following are representative examples of uses of
“certified therapeutic recreation specialist”:
Although Ms. Ternay can no longer see the plants
she works with, she can perceive them in other
ways. Dawn Priess, a soft-spoken certified
therapeutic recreation specialist, was helping
her appreciate the plants’ texture and smell.
(The New York Times, April 27, 2003);

The bride, a graduate of the State University
College at Brockport, is a certified therapeutic
recreation specialist at Loretto Nursing Home in
Syracuse.
(Rochester Democrat and Chronicle, October 23,
2002);

The popular card game is also near-perfect
therapy for Alzheimer’s patients in the early
stages of the disease, said certified therapeutic
recreation specialist Janet Larghi, because it
Ser No. 75701344
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provides a focal point in the ever advancing fog
that slowly envelopes even the most active minds.
(Daily News (New York) September 27, 2002);

Sabella holds a master’s degree in community
recreation from Columbia University and is a
state certified therapeutic recreation
specialist.
(Newsday, August 2, 1999);

The bride, a graduate of the University of
Florida, is a certified therapeutic recreation
specialist and a licensed massage therapist.
(The Palm Beach Post, May 9, 1999);

“Recreational activities unite families
together,” said Joy Stein, who as a certified
therapeutic recreation specialist would know.”
(The Baltimore Sun, April 11, 1999);

JoClare Hanshew and Shelly Brown, employees of
American Facilities Management, have become
nationally certified therapeutic recreation
specialists. Hanshew is the company’s activity
program coordinator; Brown is activities
coordinator for the company in Wyoming County.
(Charleston Daily Mail, January 4, 1999); and

Pastorek is a certified therapeutic recreation
specialist and was previously employed in the
recreation department of Forbes Nursing Center in
Pittsburgh and at St. John Lutheran Care …
(Pittsburgh Post Gazette, August 20, 1997).

In further support of his contention that “therapeutic
recreation specialist” is a generic term when applied to
applicant’s services, the examining attorney also submitted
with his June 12, 2003 Office action two printouts from
Internet websites. The first printout is from the web site
of the North Carolina Recreation Therapy Association
Ser No. 75701344
11
(http://www.nctra.org), the relevant portion of which is
set forth below:
Promoting the Benefits Therapeutic Recreation
Specialists & Therapeutic Recreation Assistants
Bring to North Carolina

What is a Therapeutic Recreation Specialist?

A therapeutic recreation specialist (TRS),
sometimes referred to as a recreation or
recreational therapist, works with individuals
who have mental, physical, emotional and/or
developmental disabilities.

The second printout is from the web site
http://www.lemoyne.edu and is a job description for a
“Therapeutic Recreation Specialist/Recreational Therapist.”
The relevant portion of this printout is set forth below:
Therapeutic recreation specialists (TRS) use
recreation and leisure activities to help people
with illnesses or disabilities.

Also with his June 12, 2003 Office action, and in
further support of his position that the composite
designation “certified therapeutic recreation specialist”
is generic when applied to applicant’s services, the
examining attorney submitted a printout of the first ten
“hits” from a Google search for “certified therapeutic
recreation specialist.” In addition, the examining
attorney submitted Internet printouts showing use of
“certified therapeutic recreation specialist.” The
following are representative examples:
Ser No. 75701344
12
This web site is managed by the North Carolina
Recreation Therapy Association (NCRTA), a non-
profit, professional organization of certified
therapeutic recreation specialists, therapeutic
recreation assistants, and persons/organizations
who support recreation therapy services in North
Carolina.
(http://www.nctra.org)

This course is designed for the therapeutic
recreation student or professional who knows the
underlying principles of their profession and
wishes to develop the competencies that will
enable them to be effective programmers. In
addition, the course is designed to assist in the
development and mastery of the skills, attitudes
and competencies necessary to become a certified
therapeutic recreation specialist.
(http://cehd.ewu.edu)

Traditionally, the focus in community therapeutic
programs has been on the provision of normalized,
accessible recreation opportunities for citizens
with disabilities. Community employers of
certified therapeutic recreation specialists
include: park and recreation programs, senior
centers, special organizations such as Easter
Seals, camps, and wilderness adventure
organizations. The focus of therapeutic
recreation programs in clinical settings has
become increasingly more oriented to the
provision of leisure related treatment services.
Clinical and human service settings which employ
certified therapeutic recreation specialists
include: psychiatric facilities, addictions
programs, long term care facilities,
rehabilitation centers, oncology units, burn
units, day treatment programs, outpatient
programs and residential programs.
(http://www.unlv.edu)

One who is already taking part is Shari
Policicchio, a certified therapeutic recreation
specialist and PLAY supervisor, who has worked
with Alex. She notes the importance of training
parents not to try to “teach” their child but to
Ser No. 75701344
13
follow their child’s lead and join them to bring
them along.
(http://www.med.umich.edu)

Level 1 facilities with dementia care units must
offer therapeutic activities seven days a week.
A certified therapeutic recreation specialist,
qualified therapeutic recreation specialist, or
activity consultant must be available eight hours
a month to consult with activities staff.
(http://pmic.carescout-elderanswers.com)

Good Shepherd-Fairview Home offers all residents
activities to meet a variety of interests. These
activities take place in the Home and out in the
community. In addition, therapeutic activities
are provided for nursing facility residents. The
activities staff works under the supervision of a
certified therapeutic recreation specialist.
(http://gfshome.com)

Applicant’s evidence

Applicant submitted declarations, Internet printouts,
and copies of third-party registrations as evidence that
CERTIFIED THERAPEUTIC RECREATION SPECIALIST is perceived as
an indication of source for applicant’s services.
Applicant, in particular, challenges the examining
attorney’s NEXIS evidence showing use of “certified
therapeutic recreation specialist” and “therapeutic
recreation specialist.” In this regard, applicant’s
former Executive Director, Peg Connolly, states in her
declaration that of the 36 NEXIS stories identified by the
Ser No. 75701344
14
examining attorney in the November 18, 1999 Office action2
that refer to “certified therapeutic recreation specialist”
and “therapeutic recreation specialist,” 8 stories are
duplicates, 2 stories refer to educational classes and not
actual people, 3 stories do not give enough information to
ascertain the name of the person mentioned, and 21 of the
remaining 23 stories, as confirmed by applicant through its
database, name individuals certified by applicant.
Applicant’s current Executive Director, Bob Riley,
states in his declaration that of the 39 NEXIS stories
identified by the examining attorney in the June 12, 2003
Office action that refer to “certified therapeutic
recreation specialist,” at least 3 stories are duplicates,
2 stories do not give enough information to ascertain the
name of the person mentioned, and 31 of the remaining 34
stories, as confirmed by applicant through its database,
name individuals certified by applicant. Further, Mr.
Riley states that of the 40 stories identified by the
examining attorney in this same Office action that refer to
“therapeutic recreation specialist,” at least 28 of the
individuals identified therein, as confirmed by applicant

2 Although Ms. Connolly refers to this as the August 10, 2001
Office action, these materials in fact accompanied the examining
attorney’s November 18, 1999 Office action.
Ser No. 75701344
15
through its database, name individuals certified by
applicant.
Applicant’s attorney, Linda McLeod, states in her
declaration that she conducted a “Google” search of the
designation “certified therapeutic recreation specialist;”
that the search returned hits for 2,030 web pages
containing this designation; that she was able to view 997
“hits”; that 2 of the hits were to applicant’s website;
that 21 of the hits did not actually contain the phrase;
and that of the remaining 974 hits, they fell into the
following categories:
All initial caps – 685
All upper case letters – 3
Initial cap on “Certified” – 10
Initial caps on Therapeutic Recreation Specialist – 22
All lower case letters – 254

In addition, Ms. McLeod states that she conducted a search
of applicant’s website which confirms that the majority of
the individuals listed in the NEXIS articles and Internet
printouts submitted by the examining attorney are actually
certified by applicant.
Applicant also submitted Internet printouts which it
maintains demonstrate that CERTIFIED THERAPEUTIC RECREATION
SPECIALIST is a recognized certification mark of applicant.
The following are representative examples:
Ser No. 75701344
16
The professional certification designation is
Certified Therapeutic Recreation Specialist
(CTRS). The credential requires a bachelor’s
degree or higher from an accredited institution
of higher education in the area of therapeutic
recreation (recreational therapy), an approved
internship under the supervision of a
professionally credentialed CTRS, and the passing
of a national certification examination
administered for the NCTRC by the Educational
Testing Service (ETS). American Therapeutic
Recreation Association.
http://www.atra-tr.org/benefits integral.htm

By graduation, students will have obtained
competencies sufficient to take the National
Council for Therapeutic Recreation Certification…
to become a Certified Therapeutic Recreation
Specialist. University of Florida, Recreation,
Parks, and Tourism.
http:www.reg.ufl.edu02-03-
catalog/colleges/hhp/rpt.html

Activities therapy treatment services are
delivered by qualified professionals with
training and education in recreational/activities
therapy service delivery and professionally
certified by the National Council for Therapeutic
Recreation Certification. The professional
certification designation is Certified
Therapeutic Recreation Specialist (CTRS)
University of Iowa.
http://www.uihealthcare.com/depts/
rehabilitationtherapies

Students complete a 14 to 16 week full-time
clinical internship under the supervision of a
Certified Therapeutic Recreation Specialist
(CTRS)… Upon successful completion of this
option, students are prepared to meet sitting
requirements for the National Council for
Therapeutic Recreation Certification Examination.
University of New Hampshire School of Health and
Human Services.
www.shhs.unh.edu.html

Ser No. 75701344
17
A recreation therapist must graduate from an
accredited program and have passed a national
certification exam to receive the credentials of
a Certified Therapeutic Recreation Specialist
(CTRS). Rehabilitation Hospital of the Pacific.
http://www.rehabhospital.org

Upon satisfactory completion of the major
curriculum and a supervised RT internship, Mount
graduates will be eligible to take the national
certifying exam offered by the National Council
for Therapeutic Recreation Certification.
Passage of this exam confers the professional
credential CTRS certified therapeutic recreation
specialist. College of Mount St. Joseph.
http://216.23.85.91/academics/majors/undergrad/
rectherapy

Further, applicant submitted numerous declarations in
support of its claim of acquired distinctiveness: The
declarations fall into four categories. First, applicant
submitted the declarations, as previously mentioned, of its
former and current Executive Directors, Peg Connolly and
Bob Riley. Ms. Connolly states, in pertinent part, that:
…the mark “CERTIFIED THERAPEUTIC RECREATION
SPECIALIST” has become distinctive, as applied to
the applicant’s services, by reason of
substantially exclusive and continuous use
thereof as a mark by the applicant in commerce
since 1982.
…
… NCTRC actively promotes the availability and
benefits of certification under the mark
“CERTIFIED THERAPEUTIC RECREATION SPECIALIST,”
including an extensive marketing campaign
conducted between 1989 and 1993 that included
direct mail, press releases, newsletters for
educators and students, attending conferences,
developing and distributing a brochure for the
employer market, holding focus groups of
employers, and contacting the personnel
Ser No. 75701344
18
regulatory offices of all 50 states, the District
of Columbia, and the territory of Puerto Rico.
As a result of NCTRC’s widespread marketing
efforts, NCTRC currently has approximately 15,000
individuals who are actively certified by NCTRC
to use the certification mark “CERTIFIED
THERAPUETIC RECREATION SPECIALIST.” There are
approximately 3,000 more former certificants
under the mark who are eligible to apply for re-
entry.
NCTRC receives substantial revenues from its
certification program. Between 1998 and 2000
alone, NCTRC received $3,450,515 in income from
certifying individuals under the certification
mark CERTIFIED THERAPEUTIC RECREATION SPECIALIST.
From these revenues, NCTRC invests significant
sums in marketing and research activities.
NCTRC actively enforces its rights to the
certification mark “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” by policing against
unauthorized uses of the mark. These efforts
include: (1) NCTRC offers online verification
services at its website where the public can
search for certificants by certification ID
number, their last name, or their social security
number, (2) NCTRC and/or its counsel aggressively
pursue unauthorized uses and misuses of the
certification mark “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” by sending cease and
desist letters and following up to ensure that
the infringing use has ceased, and (3) NCTRC
regularly publishes newsletters and brochure
articles reminding readers of the strict criteria
for use of the certification mark “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST.”
NCTRC’s efforts to enforce its certification mark
“CERTIFIED THERAPEUTIC RECREATION SPECIALIST
Credential” amount to a comprehensive ongoing
enforcement program.
…
NCTRC is the nationally recognized organization
for the certification of therapeutic recreation
personnel. Many employees insist on hiring those
individuals who have been certified by NCTRC
under the mark CERTIFIED THERAPEUTIC RECREATION
SPECIALIST. In addition, most states do not have
criteria specifically for practicing recreational
Ser No. 75701344
19
therapy. Those states do have various criteria
within state job classification requirements,
qualified provider regulations, health and human
services codes, or agency codes, which apply to
recreational therapy. However, two states do not
specifically regulate the profession of
therapeutic recreation through licensing and
certification laws: Utah and North Carolina.
Both states rely on the eligibility standards set
by the NCTRC, and passing of the national exam
for the CERTIFIED THERAPEUTIC RECREATION
SPECIALIST credential as criteria for state
approval. Still other states, like New Hampshire
and North Dakota, expressly recognize the
“CERIFIED THERAPEUTIC RECREATION SPECIALIST”
credential in their administrative or legislative
codes, which certification entitles job
applicants to a higher job classification and
higher pay. Finally, NCTRC and its “CERTIFIED
THERAPEUTIC RECREATIONAL (sic) SPECIALIST” mark
are recognized as the only national certification
program for recreational therapy in a number of
occupational and career guide books, including:
Careers, Inc.
Encyclopedia of Careers and Vocational Guidance,
Eighth Edition, Vol. 2
Job Hunter’s Sourcebook: Where to Find
Employment Leads and Other Job Search Resources
Occupational Outlook Handbook
Professional Careers Sourcebook
Top Professions: The 100 Most Popular, Dynamic,
and Profitable Careers in America Today

Mr. Riley, in his declaration, essentially reiterates
the same statements as above, and further states that:
Between 2001-2003 alone, NCTRC received
$3,788,794 in income from certifying individuals
under the certification mark CERTIFIED
THERAPEUTIC RECREATION SPECIALIST.
…
Under the direction and legitimate control of
NCTRC, the “CERTIFIED THERAPEUTIC RECREATION
SPECIALIST” certification mark is used by persons
authorized by NCTRC to certify that they possess
Ser No. 75701344
20
the training and experience necessary to practice
in the field of recreational therapy and
recreational therapy counseling. The “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST” certification
mark also serves an important role of protecting
the health, safety, and welfare of the public.
Recreational therapists provide treatment
services and recreation activities to, among
others, individuals with illnesses or
disabilities in acute care hospitals,
rehabilitation facilities, health clubs, out-
patient facilities, day-treatment facilities, and
community-living facilities. The public is
benefited by NCTRC’s consistent application of
the highest quality national standards and the
promotion of qualified professionals in the field
of therapeutic recreation in connection with the
“CERTIFIED THERAPEUTIC RECREATION SPECIALIST”
certification mark. NCTRC’s “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST” certification
mark also ensures that employers and patients
have access to information regarding the
qualifications of the certificants to provide
therapeutic recreation services based on national
standards, and with the full respect to the
health and safety of the public.

Second, applicant submitted declarations from seven
persons who are responsible for hiring and/or supervising
recreation therapists or coordinating academic programs in
the field of recreational therapy. Each of these persons
states, in relevant part, that:
As part of my duties, I am familiar with the
certification mark “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” granted by The National
Council for Therapeutic Recreation Certification
(NCTRC”). I am aware that only qualified
individuals who meet NCTRC’s eligibility
requirements, and who pass NCTRC’s credentialing
examination, are permitted to use the “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST certification
mark.
Ser No. 75701344
21
I recognize that NCTRC is solely responsible for
granting use of the certification mark “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST,” and that
NCTRC provides verification to employers… . I am
not aware of any other organizations that offer
certification under the mark “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST.”
In my experience, most healthcare and social
service organizations, … require that Recreation
Specialists meet the standards for professional
practice identified by NCTRC and that they are
certified by NCTRC to use the “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST” certification
mark as a condition of employment.
I believe that the “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” certification mark is very
important to assure that the individual is
qualified and competent to practice in the
profession under the standards established by
NCTRC and to protect the health and safety of
consumers of receiving services.
I am aware that the certification mark “CERTIFIED
THERAPEUTIC RECREATION SPECIALIST” has been used
by qualified individuals for many years. I am
also aware that NCTRC has been engaged in
advertising and promotional efforts to publicize
the “CERTIFIED THERAPEUTIC RECREATION SPECIALIST”
certification mark, and its importance to
employers, the public, and the profession.
Through many years of advertising, promotion, and
use, employers, practitioners, and consumers in
the healthcare and social services field have
come to recognize “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” as a certification mark
for individuals who have meet [sic] the standards
of NCTRC, rather than as a job title or a type of
service provider.

Third, applicant submitted declarations from seven
experienced recreation therapists. Each of these persons
states, in relevant part, that:
I have satisfied the eligibility and
credentialing standards of The National Council
for Therapeutic Recreation Certification
Ser No. 75701344
22
(“NCTRC”), and I have been authorized to use the
“CERTIFIED THERAPEUTIC RECREATION SPECIALIST”
mark … . I am aware that only qualified
individuals who meet NCTRC’s standards, and who
pass NCTRC’s credentialing examination, are
permitted to use the “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” certification mark.
…
In my opinion, the “CERTIFIED THERAPEUTIC
RECREATION SPECIALIST” certification mark is
important to the profession to assure that only
qualified and competent Recreation Therapists
practice in the profession under the standards
established by the NCTRC. I am also aware that
the “CERTIFIED THERAPEUTIC RECREATION SPECIALIST”
certification mark is important to consumers
because it gives them assurance that their health
and safety is in the care of a qualified
Recreation Therapist.

Fourth, applicant submitted declarations from eight
persons who have received therapeutic recreation services.
Each of these persons indicates the type(s) of treatment he
or she has received and states, in relevant part, that:
I am aware that the person who treated me was
qualified as a “CERTIFIED THERAPEUTIC RECREATION
SPECIALIST” by The National Counsel [sic] for
Therapeutic Recreation Certification (“NCTRC”).
I understand that only qualified individuals who
meet NCTRC’s standards are allowed to use the
“CERTIFIED THERAPEUTIC RECREATION SPECIALIST”
certification mark.
The “CERTIFIED THERAPEUTIC RECREATION SPECIALIST”
certification mark is important to the health and
safety of consumers like me because it assures
that the Recreation Therapist is experienced and
competent to render the services.
Whenever I hear “CERTIFIED THERAPEUTIC RECREATION
SPECIALIST,” I assume that the individual has
been certified to meet the national standards set
by NCTRC.
To me, “CERTIFIED THERAPEUTIC RECREATION
SPECIALIST” signifies that the individual using
Ser No. 75701344
23
the designation is certified to perform the
services, rather than a type of service provider
or job title.

Finally, applicant has submitted third-party
registrations for certification marks that include the term
“CERTIFIED.” Some of these registrations issued on the
Supplemental Register; others issued on the Principal
Register under Section 2(f); and still others issued on the
Principal Register, without a Section 2(f) claim.
Applicant argues that no distinction can be made between
these marks and CERTIFIED THERAPEUTIC RECREATION
SPECIALIST.
Genericness
“A generic term is the common descriptive name of a
class of goods or services . . .” H. Marvin Ginn Corp. v.
International Association of Fire Chiefs, Inc., 782 F.2d
987, 989, 228 USPQ 528, 530 (Fed. Cir. 1986). The critical
issue in genericness cases such as this one is whether
members of the relevant public primarily use or understand
the term sought to be registered to refer to the genus of
goods or services in question. Our primary reviewing court
has set forth a two-step inquiry to determine whether a
mark is generic: First, what is the genus (category or
class) of goods or services at issue? Second, is the term
sought to be registered understood by the relevant public
Ser No. 75701344
24
primarily to refer to that genus (category or class) of
goods or services? 228 USPQ at 530. The burden of proving
genericness falls on the trademark examining attorney, who
must present “clear evidence of generic use.” See In re
Merrill Lynch, Pierce, Fenner, and Smith, Inc., 828 F.2d
1567, 1571, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987).
With respect to the first part of the inquiry, as
previously noted, the examining attorney and applicant
argue for different definitions of the involved genus or
class of services in this case. The examining attorney
argues that the genus of services is “therapeutic
recreation specialists who have been certified.” (Examining
Attorney’s Brief at 16-17). Applicant, on the other hand,
argues that the examining attorney “has improperly
construed the genus at issue too narrowly;” and that “the
genus includes far more than ‘therapeutic recreation
specialists who have been certified.’” (Applicant’s Brief
at 8). Applicant maintains that the genus consists of the
certification process itself, and all of the factors
involved in the certification process, e.g., establishing
evaluative standards for the certification and
recertification of professionals, monitoring adherence to
these standards by the certificants, offering on-line
Ser No. 75701344
25
verification services, and promoting the availability and
benefits of certification.
In the case of In re A La Vielle Russie Inc., 60
USPQ2d 1895, 1897 (TTAB 2001), relied on by the examining
attorney, the Board stated:
In its application, applicant has identified its
services as “dealership services in the field of
fine art, antiques, furniture and jewelry.”
Based on the evidence of record, however, we find
that this recitation of services is
insufficiently definite to serve as the name of a
genus of applicant’s services, for purposes of
our genericness analysis in this case. The
evidence shows that ‘Russian art’ is a distinct
genre or type of art for which there is a defined
commercial market, and that applicant, and
others, are known and referred to generically as
dealers in Russian art. Therefore, we find that
the genus of services involved in this case is
“art dealership services in the field of Russian
art,’ rather than merely ‘art dealership
services” or, as applicant has argued, merely
“dealership services.”

Further, in H. Marvin Ginn Corp. v. International
Association of Fire Chiefs, Inc., supra at 228 USPQ 528
(Fed. Cir. 1986), our primary reviewing court found the
appropriate genus of goods to be not merely “magazines,”
but rather the defendant’s particular “class of magazines,”
i.e., “magazines directed to the field of firefighting.”
This case, however, is distinguishable from the above
cases. The record herein shows that “recreational therapy
and recreational therapy counseling” is a defined and
Ser No. 75701344
26
recognized health care field. In other words, the
identification in this case is not indefinite or so
expansive such that we need to narrow the genus of services
in the manner urged by the examining attorney.
Neither do we believe it is appropriate to define the
genus of services in the manner urged by applicant. In
support of its position, applicant relies on In re
Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420 (Fed. Cir.
2005). In that case, our primary reviewing court, in
holding that the Board mistakenly defined the genus of
applicant’s services and goods too narrowly, stated at
1422:
As an initial matter, this court examines the
Board’s understanding of the genus of goods or
services at issue. The applicant defined its
goods and service, in its amended application, as
“computerized on-line retail services in the
field of pre-engineered metal buildings and
roofing systems.” Although the definitions of
the applicant and of the Board appear nearly
identical, the parties understand the phrase
“computerized on-line retail services”
differently. Applicant sells steel buildings on
line, but the record indicates it provides
services beyond mere sales.

The present case also is distinguishable from the
above case because there is no evidence that applicant is
providing under the certification mark sought to be
registered services other than certifying “recreational
therapy and recreational therapy counseling.”
Ser No. 75701344
27
We find the present case to be akin to In re American
Institute of Certified Public Accountants, 65 USPQ2d 1972
(TTAB 2003), where the applicant sought registration of the
mark UNIFORM CPA EXAMINATION for “printed matter, namely,
practice accounting examinations; accounting exams;
accounting exam information booklets; and prior accounting
examination questions and answers.” The examining attorney
argued that the genus or class of goods should be defined
as examinations used to determine one’s qualifications to
become a CPA, whereas the applicant sought to define the
genus or class of goods as professional examinations used
to determine an applicant’s qualifications to enter a
profession. While acknowledging that enlarging or
narrowing the definition of the genus can substantially
affect the final determination of whether a term is
generic, the Board observed that “the respective
suggestions ignore the identification of goods in
applicant’s application which specifies applicant’s goods
as ‘practice accounting examinations; accounting exams;
accounting exam information booklets; and prior accounting
examination questions and answers.’” Id. at 1981. The
Board found no support in Marvin Ginn for the examining
attorney’s argument that the Board should define the genus
of goods more narrowly than the identification. Further,
Ser No. 75701344
28
the Board saw no basis for adopting applicant’s definition
which would have resulted in a broadening of the genus of
goods. Rather, the Board found that the class of goods was
adequately described by applicant’s chosen identification
of goods.
In this case, the identification reads “recreational
therapy and recreational therapy counseling,” not
“certifying” or “certification of” “recreational therapy
and recreational therapy counseling.”3 Thus, we find no
basis for defining the genus as “therapeutic recreation
specialists who have been certified” or to include the
certification process itself and the activities related
thereto.
Here, we find that the identification of services,
i.e., “recreational therapy and recreational therapy
counseling,” is sufficiently definite to serve as the name
of the genus of applicant’s services for purposes of our
genericness analysis in this case.
Next, we must determine the relevant public for
applicant’s services. We find that the relevant public

3 Indeed, we note that TMEP Sections 1306(f) and (g) indicate
that the goods or services that are certified are to appear in
the identification and the language concerning “certifying” is to
appear in the certification statement.
Ser No. 75701344
29
consists of persons in the recreational therapy field,
i.e., recreational therapists who are candidates for
applicant’s certification, recreational therapists
certified by applicant and who may use CERTIFIED
THERAPEUTIC RECREATION SPECIALIST in listing their
professional qualifications, persons involved in the hiring
of recreational therapists, and coordinators of academic
programs in the recreational therapy field; as well as
persons needing/receiving recreational therapy.
Before determining the genericness issue in this case,
we must address the difference of opinion between the
examining attorney and applicant as to the appropriate case
law to be applied in this determination. As previously
noted, the examining attorney argues that the evidence of
record shows “CERTIFIED” and “THERAPEUTIC RECREATION
SPECIALIST” to be, individually, generic; and that the
joining of these terms creates a compound word in the same
manner as did the term SCREENWIPE in In re Gould Paper
Corporation, 834 F.2d 1017, 5 USPQ2d 1110 (Fed. Cir. 1987).
According to the examining attorney, CERTIFIED THERAPEUTIC
RECREATION SPECIALIST may be found to be a compound word,
notwithstanding that it consists of more than two words
with spaces between them. Alternatively, the examining
attorney argues that the evidence of record shows that the
Ser No. 75701344
30
relevant public understands CERTIFIED THERAPEUTIC
RECREATION SPECIALIST itself to primarily refer to the
genus of services in this case. Applicant, on the other
hand, argues that the designation CERTIFIED THERAPEUTIC
RECREATION SPECIALIST is a phrase consisting of multiple
words, not a compound word; and therefore akin to the
designation SOCIETY FOR REPRODUCTIVE MEDICINE which was
found to be a phrase in In re American Fertility Society,
188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999).
We agree with applicant that the designation CERTIFIED
THERAPEUTIC RECREATION SPECIALIST is a phrase. The
examining attorney is correct that there is no authority
that specifically holds that a designation which consists
of more than two words is a phrase. Indeed, as pointed out
by the examining attorney, in the recent case of In re
Eddie Z’s Blinds and Drapery, Inc., 74 USPQ2d 1037 (TTAB
2005), this Board upheld the refusal to register the
designation BLINDSANDDRAPERY.COM for retail stores and
distributorships featuring blinds and draperies, finding
the designation to be a compound word consisting of the
generic term “blinds and drapery” and the generic TLD
“.com.” In that case, as in Gould, the individual terms,
when joined, formed a unit. In the present case,
“certified” and “therapeutic recreation specialist” are
Ser No. 75701344
31
simply multiple terms not joined in a manner other than as
a phrase. Thus, in reaching our decision, we have been
guided by American Fertility. In other words, evidence
that “certified” and “therapeutic recreation specialist,”
considered individually, are generic is not sufficient to
prove that the phrase CERTIFIED THERAPEUTIC RECREATION
SPECIALIST is generic.
We turn then to the first of the two principal issues
to be determined in this case, namely, whether the phrase
CERTIFIED THERAPEUTIC RECREATION SPECIALIST is understood
by the relevant public to refer to “recreational therapy
and recreational therapy counseling.” In making this
determination, we have taken into consideration all
evidence of record touching on the public perception of the
designation, including the evidence submitted in connection
with the claim of acquired distinctiveness. See In re
Recorded Books, Inc., 42 USPQ2d 1275 (TTAB 1997) and In re
The Paint Products Co., 8 USPQ2d 1863 (TTAB 1988).
Upon careful consideration of the entire record
herein, we find that the designation CERTIFIED THERAPEUTIC
RECREATION SPECIALIST has not been shown by clear evidence
to be a generic term for “recreational therapy and
recreation therapy counseling.” Contrary to the examining
attorney’s contention, the evidence of record does not
Ser No. 75701344
32
demonstrate that the term designates, and is understood by
those in the field of recreational therapy and persons who
receive such services, as signifying a class or category of
such therapy or therapy counseling.
The examining attorney has submitted significant
evidence to support the genericness refusal. Much of the
evidence consists of NEXIS article excerpts showing uses of
“certified therapeutic recreation specialist” in all lower
case letters in the manner of a generic term. Applicant,
however, has presented evidence establishing that the vast
majority of the persons named in these articles in fact
have been certified by applicant and thus are entitled to
use the designation CERTIFIED THERAPEUTIC RECREATION
SPECIALIST in rendering their services. Also, applicant
has submitted the results of its Internet search which
returned over 600 uses of “certified therapeutic recreation
specialist” in all or initial upper case letters in the
manner of a mark. These uses, which are from the websites
of national associations, universities, hospitals,
rehabilitation centers and local municipalities
specifically reference applicant’s certification program.
Further, we note that the examining attorney’s NEXIS
searches were framed in such a manner that they would
return only uses of the phrase “certified therapeutic
Ser No. 75701344
33
recreation specialist” in all lower case letters. The
record also shows that several state codes and regulations
recognize CERTFIIED THERAPEUTIC RECREATION SPECIALIST as
applicant’s certification. In short, while the examining
attorney has submitted significant evidence to support the
refusal, the record also includes numerous examples of
CERTIFIED THERAPEUTIC RECREATION SPECIALIST being used by
applicant and others as a source indicator for applicant’s
certification program. In other words, the evidence of
generic use submitted by the examining attorney is offset
by applicant’s evidence that shows not only a substantial
amount of proper certification mark use but also
recognition of applicant’s certification mark by persons in
the recreational therapy field and persons receiving
recreational therapy. Thus, in this respect, we find that
this case is similar to that in In re Merrill Lynch,
Pierce, Fenner and Smith Inc., supra at 1143. [“The
mixture of usages unearthed by the NEXIS computerized
retrieval service does not show, by clear evidence, that
the financial community views and uses the term CASH
MANAGEMENT ACCOUNT as a generic, common descriptive term
for the brokerage services to which Merrill Lynch first
applied the term”] (footnote omitted). Here, the mixed
record does not show, by clear evidence, that persons in
Ser No. 75701344
34
the recreational therapy field view and use the phrase
CERTFIED THERAPEUTIC RECREATION SPECIALIST as a generic,
common descriptive term for recreational therapy and
recreational therapy counseling. We find, therefore, that
the phrase CERTIFIED THERAPEUTIC RECREATION SPECIALIST is
not generic.
Acquired Distinctiveness
We turn next to the remaining principal issue of the
sufficiency of applicant’s claim of acquired
distinctiveness. Applicant has the burden of proof to
establish a prima facie case of acquired distinctiveness.
Yamaha International Corp. v. Hoshino Gakki Co., Ltd., 840
F.2d 1572, 6 USPQ2d 1001, 1006 (Fed. Cir. 1988). The
examining attorney argues that applicant’s evidence is
insufficient because the phrase CERTIFIED THERAPEUTIC
RECREATION SPECIALIST is “so highly descriptive.”
(Examining Attorney’s Brief at p. 12.) The examining
attorney argues that applicant’s revenues as set forth in
the Connolly and Riley declarations demonstrate only the
commercial success of applicant’s certification program,
not that the relevant public has come to view the phrase
CERTIFIED THERAPEUTIC RECREATION SPECIALIST as applicant’s
mark. Insofar as the other declarations are concerned, the
examining attorney argues that they “are for the most part
Ser No. 75701344
35
pre-typed and merely signed by health care providers,” and
that in the case of a “declarant [who] is affiliated with
the applicant,” the declaration should be given little
weight. (Examining Attorney’s Brief, at p. 13).
We agree with applicant, however, that taken as a
whole, the evidence it has furnished is sufficient to show
acquired distinctiveness. In this case, applicant has
claimed continuing use of the phrase CERTIFIED THERAPEUTIC
RECREATION SPECIALIST for over twenty years beginning in
1982. Applicant is the national certifying organization in
the recreational therapy field and there is no evidence of
use of the phrase by other certifying organizations.
Applicant has engaged in significant marketing activities
and its revenues of over $7 million are impressive for a
certification mark that is used in a specialized health
care field. We are mindful that this is not a case
involving consumer goods or services where we would expect
to see very large sums of sales and advertising figures in
order to find that a term has become distinctive of a
single source.
In addition, applicant has submitted a large number of
declarations from persons in the field of recreational
therapy and persons receiving recreational therapy. These
declarations cover many classes of the relevant public.
Ser No. 75701344
36
While we recognize that the declarations are similar in
content and therefore appear to have been drafted by
applicant’s counsel, we nonetheless find that they have
probative value with respect to a showing of acquired
distinctiveness, in combination with the other evidence
presented by applicant. See, e.g., In re Data Packaging
Corp., 453 F.2d 1300, 172 USPQ 396, 399 (CCPA 1972) [fact
that affidavits were drafted by applicant’s attorney and
were practically identical in wording “detracts little or
nothing from their sufficiency to make out a prima facie
case of trademark recognition”]. The declarations are
probative to the extent that they show that persons with
many years of experience in the recreational therapy field
and persons who have received recreational therapy
recognize CERTIFIED THERAPEUTIC RECREATION SPECIALIST as a
source indicator of applicant’s certification program. We
recognize that some of the declarations are from recreation
therapists who are certified by applicant, but we are not
persuaded to accord these declarations little probative
value because such persons may be said to be “affiliated”
Ser No. 75701344
37
with applicant. In any event, there are many other
declarations from persons in the recreational therapy field4
and persons who have received recreational therapy with no
apparent affiliation with applicant.
Accordingly, when viewed in its entirety, the evidence
furnished by applicant is sufficient to establish that, as
used in connection with its certification services, the
phrase CERTIFIED THERAPEUTIC RECREATION SPECIALIST has
acquired distinctiveness.
Decision: The refusal to register is reversed.

4 For example, such persons include the Chief Executive Officer
of ReMed Recovery Care Center in Conshohhocken, Pennsylvania; the
Program Director of The Rocky Mountain MS Center King Adult Day
Care Enrichment Program in Denver, Colorado; the Chief of the
National Institutes of Health Recreation Therapy Section in
Bethesda, Maryland; and the Operations Manager for Rehabilitation
Medicine of New York Presbyterian Hospital in New York, New York.