Savvier, LP

Trademark Trial and Appeal Board

Mar 31, 2016

No. 85365741 (T.T.A.B. Mar. 31, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: March 31, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Savvier, LP
_____

Serial No. 85365741
_____

Phillip R. Zender, Carl Forest and Margaret E. Carter of Squire Patton Boggs (US)
LLP, for Savvier, LP.

Edward Fennessy, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Zervas, Goodman and Lynch,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Savvier, LP (“Applicant”) seeks registration on the Principal Register of the
proposed mark TABATA BOOTCAMP (in standard characters) for “Educational
services, namely, conducting live classroom and on-line seminars and workshops for
introducing professional fitness instructors to training protocols in the field of fitness”
in International Class 41.1

1 Application Serial No. 85365741 was filed on July 7, 2011, based upon an allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b). Applicant later filed an Amendment to Allege Use claiming first use
anywhere and use in commerce since at least as early as January 6, 2012.
Serial No. 85365741
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The present application, which Applicant filed almost four years ago, has a long
prosecution history, with about a dozen Office Actions and Responses, two Final
Office Actions refusing registration on various grounds, and two requests for
reconsideration after each Final Office Action. The Examining Attorney reports that
he has “participated in nine telephone conversations and even more e-mail
communications with at least five different representatives of” Applicant’s law firm.2
The most recent activity in this case stems from the Board’s November 3, 2015 order
wherein the Board granted Applicant’s request for remand (filed March 30, 2015),
which sought to counter the approximately 500 pages of evidence the Examining
Attorney submitted with the second Final Office Action. The Board remanded the
application to the Examining Attorney for the limited purpose of addressing the
arguments and evidence set forth in Applicant’s March 30, 2015 filing. The Board
(i) allowed the Examining Attorney to submit responsive evidence “directed to the
limited question as to whether the mark as a whole is generic (as opposed to its
component parts)” and argument in a supplemental brief, and (ii) allowed Applicant
to file a supplemental reply brief solely directed to the arguments (and possible
evidence) in the Examining Attorney’s supplemental brief. The Examining Attorney
submitted approximately 400 pages of additional material.
Applicant initially sought registration on the Principal Register, then switched to
the Supplemental Register (with a disclaimer of “BOOT CAMP” with a space between

2 “Note to the File” submitting copy of email dated September 22, 2014 from the Examining
Attorney to Carl Forest, Esq.
Serial No. 85365741
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BOOT and CAMP) in its February 7, 2012 response, and repeated that it was seeking
a registration on the Supplemental Register in its October 10, 2012 and May 13, 2013
responses. In its February 19, 2014 response, however, Applicant switched back to
seek registration on the Principal Register.3 Applicant added at footnote 5 of its next
response filed on September 19, 2014 that its claim of acquired distinctiveness is
made in the alternative, “without an admission that Tabata Bootcamp is
descriptive … .”
Applicant’s following submission, its request for reconsideration filed on March
30, 2015, again states that Applicant seeks registration on the Principal Register,
and makes no reference to seeking registration on the Supplemental Register, but
Applicant states in its appeal brief that “the descriptiveness refusal can be overcome
by asserting a Section 2(f) claim and alternatively Applicant can seek registration on
the Supplemental Register.”4 It then references a proposed amendment in its Reply
brief, stating, “Moreover, in the event the Board is not persuaded that the mark has
acquired distinctiveness, Applicant submitted a Proposed Amendment to the
Supplemental Register.”5 And, in the most recent paper filed, Applicant asks that the

3 TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 816.03 (October 2015) states,
“Although there is no restriction on the number of times an applicant may amend from one
register to another, one amendment is usually sufficient, and subsequent amendments
should be avoided except for unusual circumstances.”
4 Applicant's Brief at 20, 7 TTABVUE 21.
5 Applicant's Reply at 9, 11 TTABVUE 10.
Serial No. 85365741
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application “be allowed on the Principal Register, or the Supplemental Register,
should the Board decide that is the better course.”6
The Examining Attorney’s position is that the proposed mark is generic for the
identified services. In the final Office Action, the Examining Attorney stated:
[B]ecause the applied-for mark is generic for applicant’s services, the
refusal of registration on the Supplemental Register and on the
Principal Register and pursuant to Trademark Act Section 2(f) is
repeated and made final in accordance with the Trademark Act.
Trademark Act Section 23(c), 15 U.S.C. §1091(c).

In the alternative, if the applied-for mark is ultimately determined
not to be generic by an appellate tribunal, then the refusal of
registration because the applied-for mark is merely descriptive of
applicant’s services is continued and maintained for the reasons
specified in the previous Office action. Trademark Act Section 2(e)(1), 15
U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.

Because the Examining Attorney considered registration on both registers, and to
avoid any possible prejudice to Applicant, we will consider registrability on both the
Principal and Supplemental Registers. It would have been preferable for both the
Applicant and the Examining Attorney to identity the precise posture of the
application, as it was being examined. “Examining Attorneys are urged to follow the
guidelines for handling alternative amendments as set forth in Section 1212.02(c) of
the Trademark Manual of Examining Procedure.” In re Central Sprinkler Co., 49
USPQ2d 1194, 1195 n.3 (TTAB 1998),
Thus, the present application, as it comes before us, seeks registration on the
Principal Register, stands refused under Section 2(e)(1) of the Trademark Act, 15

6 Resp. to Examining Attorney’s Supp. Brief at 10, 39 TTABVUE 11.
Serial No. 85365741
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U.S.C. § 1052(e)(1), and contains a claim in the alternative of acquired distinctiveness
under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f), which, of course, the
Examining Attorney has not accepted, and a further alternative request for
registration on the Supplemental Register.7 In addition, the Examining Attorney has
refused registration under Sections 1 and 45 of the Trademark Act, 15 U.S.C. §§ 1051
and 1127, because Applicant’s specimen of use allegedly does not reference or suggest
the applied-for services.8
Genericness
We turn first to the Examining Attorney’s contention that the proposed mark is
generic, which is at the heart of the Examining Attorney’s Section 2(e)(1) refusal, and
his refusal to accept Applicant’s showing of acquired distinctiveness and to allow
registration on the Supplemental Register. The Examining Attorney states:
[T]he class or genus of the services is bootcamp(s), while the species
or specific type of services is tabata, or collectively, boot camps of the
tabata type. The relevant public understands these designations to
primarily refer to this class or genus of services and this species or type
because, as the evidence shows, the term “tabata” is widely used to refer
to a type of interval training and the term “boot camp” is widely used to
refer to high-intensity fitness training.9

7 The final Office Action also contains a refusal under Sections 1, 2, 3 and 45 of the Trademark
Act, 15 U.S.C. §§1051-1053, 1127, because the applied-for term allegedly does not function
as a service mark. At footnote 3 of his brief, the Examining Attorney withdrew this refusal.
10 TTABVUE 3. Thus, we do not further discuss this refusal.
8 In the present case, Applicant’s specimen of use must be accepted before we can accept its
alternative amendment for registration on the Supplemental Register. See TMEP § 815.02
(“Under 37 C.F.R. §2.47(d), an intent-to-use applicant is not eligible for registration on the
Supplemental Register until the applicant has filed an acceptable allegation of use.”).
9 Examining Attorney’s Brief at 10, 10 TTABVUE 11.
Serial No. 85365741
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A generic term “is the common descriptive name of a class of goods or services.”
Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
1830 (Fed. Cir. 2015) (quoting H. Marvin Ginn Corp. v. Int'l Ass'n of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)). Because generic terms “are by
definition incapable of indicating a particular source of the goods or services,” they
cannot be registered as trademarks. Id. (quoting In re Dial-A-Mattress Operating
Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2001)). “The critical issue in
genericness cases is whether members of the relevant public primarily use or
understand the term sought to be protected to refer to the genus of goods or services
in question.” Id. (quoting Marvin Ginn, 228 USPQ at 530). Making this determination
“involves a two-step inquiry: First, what is the genus of goods or services at issue?
Second, is the term sought to be registered ... understood by the relevant public
primarily to refer to that genus of goods or services?” Marvin Ginn, 228 USPQ at 530.
See also Princeton Vanguard, 114 USPQ2d at 1829 (“there is only one legal standard
for genericness: the two-part test set forth in Marvin Ginn”). “An inquiry into the
public's understanding of a mark requires consideration of the mark as a whole.” Id.
at 1831 (quoting In re Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1421 (Fed.
Cir. 2005)). Competent sources to show the relevant purchasing public's
understanding of a contested term include purchaser testimony, consumer surveys,
dictionary definitions, trade journals, newspapers and other publications. Id. at 1830;
In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir. 1986).
Serial No. 85365741
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In an ex parte appeal, the United States Patent and Trademark Office (“Office”)
has the burden of establishing by clear evidence that a mark is generic and, thus,
unregistrable. In re Hotels.com, 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir.
2009); In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed. Cir. 1987);
In re Merrill Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141
(Fed. Cir. 1987). “Doubt on the issue of genericness is resolved in favor of the
applicant.” In re DNI Holdings Ltd., 77 USPQ2d 1435, 1437 (TTAB 2005).
We find that the genus at issue in this case is adequately defined by Applicant's
identification of services, “Educational services, namely, conducting live classroom
and on-line seminars and workshops for introducing professional fitness instructors
to training protocols in the field of fitness.” See Magic Wand Inc. v. RDB Inc., 940
F.2d 638, 19 USPQ2d 1551, 1552 (Fed. Cir. 1991) (“[A] proper genericness inquiry
focuses on the description of services set forth in the [application or] certificate of
registration”). Neither the Examining Attorney nor Applicant have proposed a more
suitable genus, accounting for the nature of the services.
We further find that the “relevant public” consists of the individuals identified in
the identification of services, namely, professional fitness instructors.
With this in mind, we move forward and ascertain whether the designation
TABATA BOOTCAMP is understood by the relevant purchasing public, i.e.,
professional fitness instructors, as primarily referring to conducting live classroom
and on-line seminars and workshops for introducing professional fitness instructors
to training protocols in the field of fitness. The Examining Attorney argues that “both
Serial No. 85365741
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the individual components and the composite result are generic for applicant’s
services,” with “tabata” being a genus and widely used to refer to a type of interval
training and “boot camp” being a species and widely used to refer to high-intensity
fitness training, and the combination describing the genus and species of Applicant’s
services.10 We therefore consider the evidence and the significance of the component
parts of the proposed mark as a step on the way to an ultimate determination of
whether the proposed mark as a whole is generic. See In re 1800Mattress.com IP LLC,
586 F.3d 1359, 92 USPQ2d 1682, 1684 (Fed. Cir. 2009) (explaining that the Board
appropriately considered the separate meanings of “mattress” and “.com” when
determining that the combination “mattress.com” was generic); In re Hotels.com LP,
91 USPQ2d at 1535 (affirming the Board's finding that “the composite term
HOTELS.COM communicates no more than the common meanings of the individual
components”).
Tabata
Definitions:

● http://en.wikipedia.org; “tabata” described as “a popular regimen
… uses 20 seconds of ultra-intense exercise … followed by 10 seconds
of rest, repeated continuously for 4 minutes …”;11 and

● http://ptofitness.org/group-exercise/class-descriptions/; “tabata” is
“[h]igh-intensity interval training designed to significantly increase
your metabolism and allow you to burn fat more efficiently.”12

10 Examining Attorney’s brief at 7, 10 TTABVUE 8.
11 Oct. 26, 2011 Office Action.
12 Dec. 12, 2014 Office Action.
Serial No. 85365741
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Applicant’s statement

Applicant stated, “the Applicant agrees with the Examiner that
‘tabata’ is generic”; and “in the fitness field, the term ‘tabata’ is a generic
term for a form of high intensity fitness training.”13 See also Applicant’s
statement in its main brief at p. 15, “Tabata had become generic for a
form of high intensity interval training, namely the form described in a
paper by Izumi Tabata and others.”

Internet material:

● http://tabatatraining.org (“Tabata is a basic form of workout”);14

● http://www.intervaltraining.net/tabata.html (“Tabata interval
training is the single most effective type of high intensity interval
training”);15

● Birmingham Post, July 14, 2011 (“Tabata is a form of interval
training … .”);16

● thetotalmovement.com/boot-camp/ (“Tabata may sound like a
bizarre tantric-sex ritual, but it’s actually a way of getting fit quickly
… .”);17

● San Francisco Chronicle, Aug. 15, 2011 (“high-intensity interval
training and static stretching. The high intensity part is modeled
after a protocol called Tabata”);18

● http://fitness.stackexchange.com/ (“Tabata is a HIIT [high-
intensity interval training] method”); and

13 Oct. 10, 2012 Response. Additionally, Applicant stated that “[t]he term “TABATA” as used
in Applicant's mark is generic because it refers to a specific method of exercise and not to a
source of goods or services” in its May 13, 2013 filing.
14 Oct. 26, 2011 Office Action.
15 Id.
16 April 10, 2012 Office Action.
17 Aug. 19, 2013 Office Action.
18 April 10, 2012 Office Action.
Serial No. 85365741
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● https://www.washingtonpost.com/ (“When the study was
published, word of the benefits got out, and now gyms around the
world are embracing Tabata.”).19

The definitions and usage evidence establishes that “tabata” is an exercise regime
involving a particular sequence of exercises which uses 20 seconds of ultra-intense
exercise followed by 10 seconds of rest, repeated continuously for four minutes.
Applicant’s identification of services, “[e]ducational services, namely, conducting live
classroom and on-line seminars and workshops for introducing professional fitness
instructors to training protocols in the field of fitness,” encompasses tabata protocols
or workouts. Applicant has conceded that “tabata” is a generic term for a form of high
intensity fitness training. We therefore find that “tabata” identifies the field of fitness
in which these educational services are rendered, and, particularly, the field of fitness
using a regimen consisting of 20 seconds of ultra-intense exercise followed by 10
seconds of rest, repeated continuously for four minutes. If the term “TABATA” is
generic as applied to a fitness regimen, it is equally so as used in connection with the
instruction of fitness professionals in teaching that fitness regimen. See, e.g., In re A
La Vieille Russie, Inc., 60 USPQ2d 1895 (TTAB 2001) (RUSSIANART generic for
dealership services in the field of fine art, antiques, furniture and jewelry); In re Log
Cabin Homes Ltd., 52 USPQ2d 1206 (TTAB 1999) (LOG CABIN HOMES generic for
architectural design of buildings and retail outlets selling kits for building log homes);
In re Web Communications, 49 USPQ2d 1478 (TTAB 1998) (WEB
COMMUNICATIONS generic for consulting services to businesses seeking to

19 Dec. 12, 2014 Office Action.
Serial No. 85365741
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establish sites on a global computer network). Thus, we find that “tabata” is a generic
term for Applicant’s services.
We are not impressed with Applicant’s argument that “[n]ot a single reference
cited by the Examining Attorney reflects the use of ‘Tabata’” “for the type of classroom
instruction provided by Applicant.”20 The evidence is clear that Applicant provides
instruction in tabata programs to fitness professionals and that tabata is an exercise
regime. In this situation, we do not require specific evidence demonstrating use of
tabata “for the type of classroom instruction provided by Applicant.” As a term
identifying the subject matter of the educational seminars and workshops, the term
is generic for Applicant’s educational services.
BootCamp

Next, we consider whether the evidence in the record establishes that the term
“bootcamp” or the equivalent “boot camp” is generic for the specific educational
services listed in the application.
Definitions:

● Oxford English Dictionary defines “boot camp” as “a short,
intensive, and rigorous course of training.”21

Internet evidence:

● ehow.com22 (“While the term ‘boot camp’ applies primarily to a
basic training camp for the army or marine corps, its usage has

20 Applicant's Brief at 4, 7 TTABVUE 5.
21 Mar. 19, 2014 Office Action.
22 http://www.ehow.com/list_7275982_types-boot-camps.html.
Serial No. 85365741
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expanded to mean any kind of intense training program or any
program that involves strict, military-style discipline.”);23

● facebook.com posting by Mindy Mylrea discussing Applicant’s
services and stating:

Using current HIIT and Tabata research, metabolic
profiling, perfect exercise programming, body assessment,
and motivational coaching skills you will learn how you can
lead this ahead of its time [-] body transformation program
and generate an amazing income stream owning your own
8-week total body turnaround bootcamp business.
Empower your clients with the Take 3 eating method that
will change the way they eat forever. Tabata Bootcamp will
allow you to create a business for yourself and permanent
change in your clients. Includes 8 workout programming
DVDs, 3 eating strategy DVDs, instructor manual,
resistance tubing, web membership and ongoing support
(at no additional fee - you will receive everything you need)
and a complete turn key program to grow your own Tabata
Bootcamp business.

● http:/lwww.livetocycle.com/tabata-Bootcamp.html, discussing
“Tabata Bootcamp” and stating:

Tabata Bootcamp is an 8 week bootcamp that is based
on High Intensity Interval Training (HUT) using the 20-10
Microburst Training Protocol. Bootcampers receive an easy
and individually formatted program from me, a certified
Tabata Bootcamp™ trainer, and participate in 3 weekly 40
minute workouts that will result in true, successful weight
loss, inches lost, body fat percentage loss and muscle gain.
These exercises are combined with metabolic tracking, and
24/7 web support that help deliver amazing body
transformation results.

My bootcampers meet in small groups (1-15
bootcampers) with me 3 times a week for a comprehensive,
total body workout[ ] that focus on lower body, upper body,
and core while providing cardio and strength training.
Within each 30 minute workout, bootcampers experience
short intervals based on Tabata Bootcamp's training that

23 Dec. 12, 2015 Office Action.
Serial No. 85365741
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delivers a calorie drenching workout and post metabolic
boost (i.e. boosts your metabolism to burn calories after the
workout).
***
Bootcamps:

Current Summer Tabata Bootcamp …

Cost for 8 Week Bootcamp …

*Call or email Carolyn for more information on how you
can reap all of the benefits of this Life Changing
Bootcamp Virtually!!!

● ptofitness.org (“boot camp” identified as a “circuit training
workout”);24

● elementsofexercise.com25 (“Boot Camp workouts are one of the
fastest-growing strength-and-conditioning-training trends in
America. It’s a vigorous workout that combines strength training,
aerobics and gymnastics all in one so that you become fitter than ever
imagined. Boot Camp offers an interesting balance of Intensity,
Effort, Community, and Coaching, and is one of the best ways to do
physical training in a group setting.”);26

● xsportfitness.com27 (“Bootcamp [-] A popular interval class that
mixes calisthenics and body weight exercises with cardio and
strength training.”);28

● www.ymcadc.cfm?bit=02&core=01, (“Bootcamp [-] The class will
utilize different types of training, from body weight and boxing-style
exercises to boot camp and athletic-style exercises …”);29

24 Id.
25 http://webcache.googleusercontent.com/search?q=cache:Va6sLIihf8J:
elementsofexercise.com/crossfit-bootcamp-new/+&cd=1&hl=en&ct=clnk&gl=us.
26 Dec. 12, 2015 Office Action.
27 http://www.xsportfitness.com/groupfitness/description.html.
28 Dec. 12, 2015 Office Action.
29 Id.
Serial No. 85365741
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● ballyfitness.com30 (“BOSU Boot Camp” offered);31

● gohastings.com32 (“Pilates Bootcamp” dvd);33

● http://ashleyturner.org/shop/ (“Yoga Bootcamp”);34

● bestbuy.com (“10 Minute Solution: Kickbox Bootcamp (DVD)
2005”);35

● slideshare.net36 (“Types of Boot Camps,” with “teen bootcamp,”
“aqua bootcamp” and “salsa bootcamp”);37

● healthworksfitness.com38 (“We offer various types of bootcamps
including Kettlebells, Sports Conditioning, Boxing and Basic
Training. At Healthworks there is a bootcamp for everyone.”);39

● sportsmedicine.about.com40 (“A fitness boot camp is type of outdoor
group exercise class that mixes traditional callisthenic and body
weight exercises with interval training and strength training. While
there are a variety of styles of fitness boot camps, most are designed
in a way that pushes the participants harder than they'd push
themselves and, in that way, resemble a military boot camp.”);41

● http://www.martialtribe.ca, (“Declare war on your extra pounds
with our Fitness Kickboxing Bootcamp!”);42 and

30 www.ballyfitness.com/achieve-your-goals/group-exercise.aspx.
31 Dec. 12, 2015 Office Action.
32 http://www.gohastings.com/1/1/141151-pilates-bootcamp-dvd-upc-066805308307.html.
33 Mar. 19, 2014 Office Action.
34 Id.
35 Id.
36 http://www.slideshare.net/fitnessfreakaustralia/types-of-bootcamp.
37 Dec. 12, 2015 Office Action.
38 http://www.healthworksfitness.com/small-group-training/bootcamp/.
39 Dec. 12, 2015 Office Action.
40 http://sportsmedicine.about.com/od/sampleworkouts/a/FitnessBootcamp.html.
41 Dec. 12, 2015 Office Action.
42 Id.
Serial No. 85365741
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● http://www.angiemillerfitness.com (“Kettlebell Bootcamp DVD”).43

In addition, the record contains the following statements in webpages which are
specifically directed to bootcamps for fitness professionals:
● http://ymlp.com/zdHH1N, (“360 bootcamp workouts for
bootcamp trainers by real bootcamp trainers!”);44

● https://www.facebook.com/events/429011447121556/,(“MWS
Master Trainers BootCamp is specifically crafted for the elite few
who has joined MWS as our Master Trainers.”);45 and

● http://www.blacktigerclub.com, (“Kickboxing Dynamics – Group
Exercise Instructor Certification Course Bootcamp for Fitness
Trainers”).46

Applicant’s statements:
The Examining Attorney also maintains that Applicant has acknowledged its
services include high-intensity physical fitness training in responding to questions
raised by the Examining Attorney:
Question: Do applicant’s seminar and workout services consist of or
include physical fitness training or instruction for trainers?

Answer: They introduce professional instructors to training protocols
in the field of fitness. Some of these training protocols are introduced by
the instructors actually doing physical fitness exercises while being
instructed on how to train others in the exercises.

Question: Does this physical fitness training for trainers consist of or
include high-intensity exercises and/or workouts?

Answer: Yes.47

43 Id.
44 Aug. 19, 2013 Office Action.
45 Id.
46 Id.
47 Feb. 19, 2014 Response.
Serial No. 85365741
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Applicant’s alleged concession:

Applicant, when it amended to seek registration on the Supplemental Register in
its February 7, 2012 response, and in response to the Examining Attorney’s
requirement, entered a disclaimer of BOOT CAMP (with a space between BOOT and
CAMP). Generic matter is disclaimed in Supplemental Register applications. See In
re Carolyn’s Candies, Inc., 206 USPQ 356, 360 (TTAB 1980) ("Section 6 of the
Trademark Act of 1946, which provides for the disclaimer of ‘unregistrable matter’,
does not limit the disclaimer practice to marks upon the Principal Register.").
Supplemental Register registrations with “boot camp” disclaimed:48

● TEXAS BOOT CAMP, for conducting physical fitness classes, Reg.
No. 4133397;

● ANNAPOLIS BOOT-CAMP, for physical fitness training, Reg.
No. 4103374;

● BROOKLYN BRIDGE BOOT CAMP, for physical fitness training,
Reg. No. 4014188;

● THE ORIGINAL BOOT CAMP, fitness training, Reg. No. 4412358;
and

● SOCAL FITNESS BOOT CAMP FOR WOMEN, for fitness instruction,
Reg. No. 3600548.

Registrations with “Boot Camp” in recitation of services:49

● No. 3770672 CORE ATHLETICA (including “physical fitness training
services, namely, physical fitness bootcamp”);

48 Mar. 19, 2014 Office Action.
49 Dec. 12, 2014 Office Action.
Serial No. 85365741
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● No. 4649823, MASTERING THE CORE (including “boot camps in the
field of core strength training and skill sets, physical fitness, motivation-
training”);

● Nos. 4451031 and 4451030, URBAN UJ JUNGLE (including “exercise
boot camps”);

● No. 4424785, DEBRA STEFAN FITNESS (including “boot camps in
the field of fitness”);

● No. 4433928, FITNESS ADDICTION (including “training services
including boot camps”); and

● No. 4240485, FITCULTURE (including “fitness boot camps and fitness
obstacle courses”).

Registrations without a disclaimer of “bootcamp”:
Applicant submitted with its February 19, 2014 response, registrations for the
following marks for educational services on the Principal Register which do not
contain a disclaimer of the term “bootcamp”:
UNDERWRITER BOOTCAMP RENOVATION BOOTCAMP
BUSINESS FUNDAMETALS BOOTCAMP RELATIONSHIP BOOTCAMP
AUDITING BOOTCAMP THE WEDDING BOOTCAMP50
Applicant’s disclaimer of “bootcamp.”
Applicant’s response dated February 7, 2012, included a disclaimer of the term
“bootcamp” and an amendment to the Supplemental Register. According to the

50 The registrations containing the term BOOTCAMP which are not for educational services
have limited probative value.
Also, the record contains search results from the Trademark Electronic Search Systems
(TESS) database of the USPTO for applications and registrations containing the term
“bootcamp.” The search results have limited probative value because the goods or services of
the applications and registrations are not listed therein.
Serial No. 85365741
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Examining Attorney, Applicant’s amendment confirms that “bootcamp” is the genus
for a type of physical fitness training.51
“Tabata Bootcamp”
In addition, we consider the evidence in the record concerning the combination of
“tabata” and “bootcamp” to determine whether it establishes that “bootcamp” and the
proposed mark as a whole, “tabata bootcamp,” is generic for the educational services
set forth in the recitation of services. Examples of such evidence are set forth below:
Internet evidence:
Submitted with the Examining Attorney’s supplemental brief:
● http://mountainsidewellness.com/bootcamps (“FALL 2015
TABATA BootCamps are open for registration!”);

● facebook.com52 (”New Year's Tabata Bootcamps … There are 3 new
Tabata Bootcamps starting next week!”);

● pinterest.com53 (“Trainer Jane Bootcamps & TABATA
Bootcamps”);

● http://www.minorsan.com/tabata-bootcamp/ (“What is Tabata
Bootcamp? …‘Tabata’ is a method of weight loss and fitness with short
training times. It has to do with timing (in seconds) and rest periods (in
seconds), plus differing levels of intensity during these timed segments.
Its broader term is high-intensity interval training (HIIT). It is named
after the researcher who discovered this method…”);

● https://vimeo.com/119980680 (“Intro to Tabata Bootcamps by
Fitness with Rachel - for new participants…”);

51 Examining Attorney’s Brief at 17, 10 TTABVUE 18.
52 https://www.facebook.com/events/264297660391359/.
53 https://www.pinterest.com/trainerjanewarr/trainer-jane-bootcamps-tabata-bootcamps/.
Serial No. 85365741
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● purebodystudios.com54 (“Tabata Bootcamps…The Tabata boot
camp is based on High Intensity Interval Training (HIIT), using the 20
second work/ 10 second rest ratio. During each 20 second bout you will
engage in high-intensity exercises such as squat jumps, shuffles, battle
ropes…”);

● meetup.com55 (“8-week Tabata Bootcamps (2x or 3x per week) start
in Septmember! [sic].”);

● blog.maldivescomplete.com56 (“Like everything in the Maldives,
there is usually a ‘Beach’ version. And Jumeirah Dhevanafushi offers a
superlative Beach Bootcamp. It was started by Elmer who also
pioneered Zumba in the Maldives. It was a ‘Tabata Bootcamp’ developed
by the Japanese to train their Olympic athletes. A high intensity
interval workout like circuit training. 20 seconds of working out followed
by 10 seconds rest for 8 rounds making a 4 minute segment.”);

● nydailynews.com57 (“Tabata boot camps combine bursts of
maximum effort with intervals of rest.”);

● toscareno.com58 (“This weekend I was enrolled in two Intensive
Training Workshops – a Tabata Bootcamp and a TRX Functional
Training Course. I was a little worried with the amount of exercise
incorporated in these workshops, but I had lots of energy power
th[]ough.”); and

● Evolutiontuscon.com/mindful (“Just slap a gimmick like a tabata
bootcamp or trampoline exotica on your class and don’t stop
moving/convulsing for an hour.”).

Submitted with prior Office Actions:

54 http://www.purebodystudios.com/fitness-bootcamps.html.
55 http://www.meetup.com/Eatontown-Tabata-Bootcamp/.
56 http://blog.maldivescomplete.com/2015/09/25/best-of-the-maldives-bootcamp-
jumeirahdhevanafushi/.
57 http://www.nydailynews.com/life-style/health/7-new-group-fitness-class-trends-article-
1.1419107.
58 http://www.toscareno.com/2015/11/13recap-from-the-authors-of-the-week-4-cat-clean-di....
Serial No. 85365741
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● community.runnersworld.com59 (“Also started more cross training
- did a tabata bootcamp”);60 and

● fitnessblender.com61 (“To get the most out of this bootcamp tabata
workout, we want you to select as heavy of a weight as you can with
proper form”).62

Declarations from three certified trainers:
The Examining Attorney submitted declarations from three physical trainers
which each state that “tabata bootcamp” refers generally “to a series of physical
fitness training sessions featuring the Tabata type of internal method. … This
wording is not widely understood to refer to one specific entity as the source of
physical fitness goods or services, but instead is a generic term referring to a
particular method and type of fitness training.”63
Applicant’s declarations:
Applicant submitted a number of declarations, including the supplemental
declaration and second supplemental declaration of Kate Jordan, one of Applicant’s
employees, Jeff Tuller, Applicant’s President and Mindy Mylrea, creator of the
TABATA BOOTCAMP fitness instructor training program sold by Applicant. Ms.
Jordan stated:
13. The vast majority of use of TABATA BOOT CAMP on the
internet is by authorized users (i.e. licensed fitness instructors).

59 http://community.runnersworld.com/topic/achilles-tendonitis-how-do-i-know-that-i-
amrecovering?reply=60124974646768529.
60 Dec. 12, 2015 Office Action.
61 http://www.fitnessblender.com/v/workout-detail/Happy-Healthy-Strong-Body-Boot-Camp-
Strength-and-Cardio-Tabata-Workout/g7/.
62 Dec. 12, 2015 Office Action.
63 Examining Attorney’s Supplemental Brief, 21 TTABVUE 8-9, 11.
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There are literally hundreds if not thousands of web pages and
uses by authorized users. Yet I have found only a handful of
infringers over the past 3 years of policing the mark.

14. When I determine that an improper use of TABATA
BOOTCAMP has been made, I contact the user, inform them
that the term is a trademark of Savvier, and request that the
user cease and desist in the improper use.

15. To date all of them but one immediately ceased the
improper use, and that one ceased use after a trademark
infringement action was decided in favor of applicant.64

In addition, Ms. Jordan provided the results of her investigation into internet uses
of “Tabata Bootcamp” submitted with the December 12, 2014 Office Action, indicating
that most of such uses are sourced from professional trainers licensed by Applicant.
Such uses include the following:
● prezi.com65 (“No equipment is necessary to complete what could be
considered a tabata bootcamp…I’m on a study on 12 men & women
performing a 40 minute tabata bootcamp”);

● livefromlaquinta.com66 (“I teach a Tabata Bootcamp and am
always looking for different combos to share with them.”);67

● yelp.com68 (“We are more than just a Tabata bootcamp.)”;

● http://powerofmovement.co/testimonials/, (“I hired Leslie to do a
Tabata Bootcamp for my company…”);

● bootcampideas.com69 (“Tabata Sprint and Strength Bootcamp”);

64 Mar. 30, 2015 Req. for Recon., ¶ 13-15.
65 http://prezi.com/lrizi2kowsbn/tabata-bootcamp/.
66 http://livefromlaquinta.com/2013/09/19/time-tabata/.
67 Dec. 12, 2015 Office Action.
68 http://www.yelp.com/biz_photos/white-fox-fitnessscottsdale?
select=RdUnnFjqtoKJRfph1SLLvA#RdUnnFjqtoKJRfph1SLLvA.
69 http://bootcampideas.com/tabata-sprint-and-strength-bootcamp/.
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● badassfitness.typepad.com (“All-Tabata Bootcamp”);

● pinterest.com70 (“Trainer Jane indoor and outdoor Bootcamps and
TABATA Bootcamps”);

● meetup.com71 (“TABATA STYLE BOOTCAMPS”);

● facebook.com72 (“There are 3 new Tabata Bootcamps starting next
week!”);

● facebook.com73 (“Tomorrow looks great for a tabata bootcamp 7
a.m…”); and

● fitnesscanbfun.com (“Looking for new ways to exercise? * Indoor &
Outdoor Tabata Boot Camps * Beach Yoga * Virtual Training *
Kickboxing * Interval Training Contact us today to begin your
journey to a healthier lifestyle…”).74

Ms. Jordan also submitted pages from Personal Fitness Professional, a magazine
which presented a joint award from PFP and another entity to Ms. Mindy Mylrea as
PFP Trainer of the Year, stating, “Mindy is the founder of … Tabata Boot Camp … .”
With regard to the material submitted by the Examining Attorney in connection
with his supplemental brief, Ms. Jordan stated in another supplemental declaration:
4. … Based on the contents of those documents, and further
investigation using, for example, searches on the Internet, we were able
to determine that there were references to 34 separate trainers, gyms
and/or studios in those documents.

***

7. Based upon this investigation, I was able to confirm that 19 of the
33 entities are, in fact, Savvier licensees. The Examining Attorney's

70 http://www.pinterest.com/trainerjanewarr/trainer-jane-bootcamps-tabata-bootcamps/.
71 www.meetup.com/Tabata-STYLE-BOOTCAMPS/member/6215889/.
72 https://www.facebook.com/events/264297660391359/.
73 https://facebook.com/KYABC/posts/1015274181149465.
74 http://fitnesscanbfun.com/2012/06/.
Serial No. 85365741
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evidence did not provide enough information to confirm whether 7 of the
references are a licensee or not. Only 7 of the references were to entities
that are not licensees. Notably, even for these people that are not
licensees, it is still possible that they could be a licensee as Savvier's
information for tracking licensees does not track, for example, married
versus maiden names for individual trainers.75

Survey:
Applicant retained Dr. David W. Stewart, identified as a psychologist and
marketing expert, to conduct a Teflon double-blind survey.76 The survey sample
comprised 339 certified fitness instructors or personal trainers who had been
teaching in the United States for at least two years. All of the respondents were
attendees interviewed at a fitness conference either in Ft. Lauderdale, Florida or in
Danvers, Massachusetts. In response to the question about whether “Tabata
Bootcamp” is a brand name or common name, 318 respondents (93.8%) indicated that
it is a brand name. In response to the question about how they use the “Tabata
Bootcamp” name, 225 of the respondents (65.5%) indicated that they use it mainly as
a brand name and another 87 respondents (25.7%) indicated that they use it as both
a brand name and a common name. According to Dr. Stewart, 91.2% of the
respondents indicated that they use the “Tabata Bootcamp” name as a brand name
at least some of the time.77

75 Jordan Supp. Dec., Resp. to Examining Attorney’s Supp. Brief Exh. 1, 39 TTABVUE 12.
76 Feb. 19, 2014 Resp., Stewart Rep. ¶ 10; A so-called “Teflon survey” refers to the format of
the survey used in E.I. duPont De Nemours & Co. v. Yoshida International, Inc., 393 F.Supp.
502, 185 USPQ 597 (E.D.N.Y. 1975) to prove that ‘Teflon’ was not generic.
77 Feb. 19, 2014 Resp., Stewart Report ¶ 25.
Serial No. 85365741
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Analysis
As Applicant notes, the bulk of the Examining Attorney’s internet evidence
demonstrates use of “bootcamp” in the context of performing physical exercise, and
not teaching exercise programs to fitness professionals. Only a handful of webpages
in the thousands of pages in the record use “bootcamp” in connection with rendering
educational services to professional instructors in the fitness context.78 These few
references do not persuade us that the term “bootcamp” identifies a species of
educational services which involves conducting live classroom and on-line seminars
and workshops for introducing professional fitness instructors to training protocols
in the field of fitness. Further, (i) the registrations with BOOTCAMP disclaimed
submitted by the Examining Attorney do not involve the type of educational services
for which Applicant seeks registration, but rather are for fitness classes of the type
that instructors trained by Applicant might then offer to their students, and hence
have limited probative value; and (ii) the Principal Register registrations for
educational services submitted by Applicant which do not contain a disclaimer of
“BOOTCAMP” counter the registrations submitted by the Examining Attorney.

78 See, e.g., the following:

● http://ymlp.com/zdHH1N, (“360 bootcamp workouts for bootcamp trainers by
real bootcamp trainers!”);
● https://www.facebook.com/events/429011447121556/,(“MWS Master
Trainers BootCamp is specifically crafted for the elite few who has joined MWS
as our Master Trainers.”); and
● http://www.blacktigerclub.com, (“Kickboxing Dynamics – Group Exercise
Instructor Certification Course Bootcamp for Fitness Trainers”).
Serial No. 85365741
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The internet evidence concerning the combined term “tabata bootcamp” also is not
persuasive. Ms. Jordan stated in her declarations that most references to “tabata
bootcamp” in the material introduced by the Examining Attorney are to classes
taught by Applicant’s licensees, to persons who participated in Applicant’s training
classes, or to blogs about licensed users, and three uses were unlicensed uses which
have ceased due to Applicant’s policing.79 Further, from our review of the record, we
have found few webpages located by the Examining Attorney which use TABATA
BOOTCAMP and concern educational services for professional fitness instructors;
most concern the rendering of fitness classes to the general public. Applicant’s
services are not providing exercise routines, but concern courses for persons already
certified as professional fitness instructors.
We now weigh Applicant’s Teflon survey, beginning with Applicant’s argument
that it has been “sandbag[ed]” by the Examining Attorney, who Applicant asserts
first challenged the survey in his brief, even though Applicant submitted the survey
well before the Examining Attorney’s filed his brief. (Applicant submitted the survey
with its February 19, 2014 response to a non-final Office Action). We have considered
the Examining Attorney’s challenges to the survey in his brief because Applicant filed
a reply brief and had an opportunity to, and did, respond to the Examining Attorney’s
criticisms of the survey. Moreover, the Examining Attorney did not introduce any
evidence contesting the survey results; his comments are all based on observation or

79 Mar. 30, 2015 Req. for Recon., Second Supp. Dec. of Kate Jordan, ¶¶ 42, 54 and 56; Jordan
Supp. Dec.¶ 7, Resp. to Examining Attorney’s Supp. Brief Exh. 1, 39 TTABVUE 12.
Serial No. 85365741
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on prior case law. We too have carefully reviewed the survey and its results, and have
our own concerns with the survey, which we discuss below.
First, it appears that the survey was conducted at fitness conferences where
Applicant was also promoting its services. The Examining Attorney has alleged that
Applicant was participating in the same venues where the survey was being
conducted, at the same time, and Applicant has not denied that it conducted the
surveys in such venues. Further, the webpage submitted by the Examining Attorney
from ecaworldfitness.com with the December 12, 2014 Office Action lists Applicant
as a participant in one of the ECA World Fitness trade shows in Florida. In addition,
Mr. Bruce Mylrea is listed as the contact for the surveyors. The record reflects that
Mr. Mylrea is involved with Applicant’s operation, as his name is listed in Applicant’s
promotional material.80 Second, Dr. Stewart, who conducted the survey, should not
have allowed respondents the option of stating that a term functions both as a
common term and as a trademark. See Sheetz of Del., Inc. v. Doctor's Assocs. Inc., 108
USPQ2d 1341, 1362 (TTAB 2013) (finding a Teflon survey flawed in part because
respondents had the option of indicating the subject terms were both common names
and brand names, noting that “[b]y definition, a generic term for a product can never
function as a trademark for that product,” citing Two Pesos, Inc. v. Taco Cabana, Inc.,
505 U.S. 763, 23 USPQ2d 1081, 1083 (1992) (“In contrast, generic marks [sic] — those
that ‘refe[r] to the genus of which the product is a species,’ … are not registrable as

80 See Applicant’s promotional material submitted by Applicant together with Applicant’s
survey with its February 19, 2014 response.
Serial No. 85365741
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trademarks.”); BellSouth Corp. v. DataNational Corp., 60 F.3d 1565, 35 USPQ2d
1554, 1557 (Fed. Cir. 1995) (“A generic term cannot be registered because such a term
cannot function as an indication of source.”); In re Merrill Lynch, Pierce, Fenner, and
Smith, 4 USPQ2d at 1142 (“Generic terms, by definition incapable of indicating
sources, are the antithesis of trademarks, and can never attain trademark status.”);
Restatement Third, Unfair Competition § 15, cmt. a (1995) (“Generic designations are
not subject to appropriation as trademarks at common law and are ineligible for
registration under state and federal trademark statutes.”)). Third, Dr. Stewart
included individuals who indicated that the term “tabata bootcamp” functions both
as a source indicator and as a term for particular services in his tally of persons who
considered the proposed mark to be source indicator. See Sheetz of Del., 108 USPQ2d
at 362 (“A respondent who said that a term was both a brand name and a common
name might not have understood the difference between the two. This calls into
question the validity of Dr. Cogan's results because we cannot be sure how many of
the respondents actually understood the difference between a brand name and a
common name.”). For these reasons, the probative value of Applicant's survey on the
question of whether prospective purchasers of Applicant’s services view the term
“Tabata Bootcamp” as a brand name is diminished.
Thus, the survey is probative on the question whether the combined term “tabata
bootcamp” functions as a source indicator, but its value is diminished by the
infirmities noted above.
Serial No. 85365741
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In addition, we are aware that Applicant filed a second application81 concurrently
with the present application for TABATA BOOTCAMP, for “pre-recorded audio tapes,
video tapes, DVDs featuring 30 minute and one hour, in-home instruction in the field
of fitness” in International Class 9, and that this application matured into a
registration on the Supplemental Register.82
Thus, we find that the few webpages using “bootcamp” in the educational context
are insufficient to demonstrate that the term is a generic term for Applicant’s
educational services for professional fitness instructors. There is little, if any,
corroborating material in the evidentiary record to demonstrate use of “bootcamp” in
connection with such educational services. Further, we do not hold Applicant’s
disclaimer of “BOOT CAMP” as a concession that BOOTCAMP is generic when it
provided the disclaimer in response to the Examining Attorney’s disclaimer
requirement and sought registration on the Supplemental Register; Applicant has
also argued acquired distinctiveness in TABATA BOOTCAMP. Cf. In re RiseSmart
Inc., 104 USPQ2d 1931, 1932 (TTAB 2012) (applicant consented to entry of the
disclaimers for TALENT and JOB in the alternative but maintained that the terms
are suggestive).83 While the survey suffers in certain respects and we therefore accord

81 The second application matured into Registration No. 4573797.
82 Trademark Registration No. 4573797, mentioned at p. 3 of Applicant’s brief, 7 TTABVUE
4. See also copy of the USPTO record for the application submitted with July 3, 2013 Office
Action. The registration itself has not been submitted into the record.
83 In its February 19, 2014 filing, Applicant stated, “Bootcamp is a suggestive term with
respect to conducting live classroom and online seminars and workshops for introducing
professional fitness instructors to training protocols in the field of fitness. Applicant
withdraws any direct or implied statement that bootcamp is descriptive of conducting live
Serial No. 85365741
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it reduced probative value, the survey does have some value in its conclusion that a
majority of respondents regard TABATA BOOTCAMP as a brand name. On the
record before us, and given that genericness must be shown by clear evidence, we do
not conclude that the term BOOTCAMP and hence the mark as a whole, i.e., TABATA
BOOTCAMP is generic for Applicant’s educational services. We hasten to add,
though, that on a different record, such as one that might be adduced by a competitor
in an opposition proceeding, we might arrive at a different result.
Mere Descriptiveness
Because we have not agreed with the Examining Attorney that the proposed mark
is generic, we proceed to consider whether the proposed mark is merely descriptive.84
A term is deemed to be merely descriptive of goods or services, within the meaning
of Section 2(e)(1), if it forthwith conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the goods or services. In re Gyulay,
820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Abcor Development Corp., 588
F.2d 811, 200 USPQ 215 (CCPA 1978). A term need not immediately convey an idea
of each and every specific feature of the applicant’s goods or services in order to be
considered merely descriptive; it is enough that the term describes one significant
attribute, function or property of the goods or services. In re H.U.D.D.L.E., 216 USPQ
358 (TTAB 1982); In re MBAssociates, 180 USPQ 338 (TTAB 1973). It is well-

classroom and on-line seminars and workshops for introducing professional fitness
instructors to training protocols in the field of fitness.”
84 Applicant stated in its February 19, 2014 filing that its “secondary meaning arguments are
always presented in the alternative to our arguments that TABATA BOOTCAMP is
inherently distinctive” for its services.
Serial No. 85365741
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established that the determination of mere descriptiveness must be made not in the
abstract, but in relation to the goods or services for which registration is sought. In
re Abcor, 200 USPQ at 218.
We are persuaded by the evidence in the record that fitness professionals who are
Applicant’s consumers, when viewing the proposed mark, would immediately
understand that “tabata bootcamp” refers to intense classes featuring the tabata
technique. See In re Gyulay, 3 USPQ2d at 1010. The evidence in the record, discussed
above, demonstrates, at the very least, that the term is highly descriptive of services
educating fitness professionals on how to teach such classes.
Acquired Distinctiveness
Applicant maintains that the mark in its entirety has acquired distinctiveness.85
When asserting a Trademark Act Section 2(f) claim, the burden of proving that a
mark has acquired distinctiveness is on the applicant. Yamaha Int’l Corp. v. Yoshino
Gakki Co., 840 F.2d 1572, 1578-79, 6 USPQ2d 1001, 1004 (Fed. Cir. 1988); In re Meyer
& Wenthe, Inc., 267 F.2d 945, 948, 122 USPQ 372, 375 (CCPA 1959); TRADEMARK
MANUAL OF EXAMINING PROCEDURE (“TMEP”) § 1212.01 (October 2015). Thus,
Applicant must establish that the purchasing public has come to view the proposed
mark as an indicator of origin. Here, even if the mark were found to be capable of
distinctiveness, Applicant has a heavy burden because the mark is highly descriptive
of the primary feature and subject matter of Applicant’s services. We hence require
significant evidence of acquired distinctiveness in order to allow registration of the

85 Applicant's Brief at 6, 7 TTABVUE 7.
Serial No. 85365741
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two marks. Yamaha Int’l, 6 USPQ2d at 1008 (the kind and amount of evidence of
acquired distinctiveness required to secure a registration will necessarily vary with
the subject matter for which registration is sought.). See also In re Steelbuilding.com,
75 USPQ2d at 1424 (“Finally, the applicant’s burden of showing acquired
distinctiveness increases with the level of descriptiveness; a more descriptive term
requires more evidence of secondary meaning.”).
Applicant relies heavily on the survey of certified fitness instructors or personal
trainers it conducted and the results that (i) 318 individuals (93.8%) responded that
“Tabata Bootcamp” is a brand name; and (ii) 225 individuals (65.5%) responded that
they use “Tabata Bootcamp” mainly as a brand name; and (iii) 87 respondents (25.7%)
indicated that they use “Tabata Bootcamp” as both a brand name and a common
name. Applicant concludes that 91.2% of the respondents indicated that use the
“Tabata Bootcamp” name as a brand name at least some of the time. However, as
noted earlier in this decision, the survey has its flaws and hence is accorded reduced
probative value.
Applicant also asserts that its use of “Tabata Bootcamp” is substantially exclusive
through its training and policing activities, as demonstrated by the uses of “Tabata
Bootcamp” provided by the Examining Attorney and the declarations of Ms. Jordan
and Mr. Tuller indicating that many of these uses are by authorized trainers who
have participated in Applicant’s training programs or have ceased using the proposed
mark when contacted by Ms. Jordan.86 Applicant notes too that it obtained an

86 Jordan Second Supp. Dec., March 30, 2015 Response, ¶¶ 12 – 15.
Serial No. 85365741
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injunction against use of “Tabata Bootcamp” by one unauthorized user and the
unauthorized user ceased use of the term.
In addition:
● Applicant cites to the trainer of the year award given to Ms. Mylrea,
founder of the TABATA BOOTCAMP BOOTCAMP fitness instructor
training program, from Personal Fitness Professional; and

● Applicant, which claims a first use date of January 6, 2012, relies
on the declaration of Mr. Tuller with its February 19, 2014 response,
who states in relevant part:

10. Savvier has spent more than one million dollars
advertising and developing TABATA BOOTCAMP. We have
trained more than 27,000 people in the TABATA BOOTCAMP
trainings and certified more than 4,000 instructors to teach the
TABATA BOOTCAMP fitness protocols.

11. Our marketing has been present at all major fitness
conventions and in all major fitness publications which target
the professional fitness market. Our advertisements in fitness
publications are often full-page ads. Some of the publications
that I can recall off the top of my head are IDEA Fitness Journal,
American Fitness, On Fitness, and Club Business International

12. Since, this is a relatively small industry (approximately
250,000 instructors according to the U.S. Bureau of Labor
Statistics), we have been able to reach most of the instructors
and trainers with our advertising and have reached many of
them multiple times.

13. Moreover, we have had great publicity in magazines and
newspapers. Our lead instructor, Mindy Mylrea, who created the
TABATA BOOTCAMP program has received instructor of the
year at CanFit Pro (the largest Canadian Fitness conference)
and East Coast Alliance Fitness (one of the largest U.S. Fitness
conferences). Additionally, East Coast Alliance awarded the
TABATA BOOTCAMP program as the Most Impactful Fitness
Program in the industry.87

87 Applicant also submitted the declaration of Ms. Mylrea with its February 19, 2014
response, who provided similar testimony.
Serial No. 85365741
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Applicant has not met its heavy burden of establishing that its mark has acquired
distinctiveness. Mr. Tuller’s declaration has included development expenses within
the million dollar figure without explaining what the development expenses are, and
whether they created recognition among the purchasing public of Applicant’s
proposed mark. Applicant has not used its proposed mark for an extended period of
time, and even if we considered Applicant’s million dollar figure as spent largely on
advertising, it does not establish acquired distinctiveness for such a highly
descriptive mark. See In re Boston Beer Co., L.P., 198 F.3d 1370, 53 USPQ2d 1056,
1057 (Fed. Cir. 1999) (annual advertising expenditures in excess of ten million dollars
found insufficient to establish acquired distinctiveness). Also, the number of certified
instructors as a percentage of the total population of fitness instructors is not
significant, amounting to under two percent of instructors. We also know little about
the magazine Personal Fitness Professional, which gave Ms. Mylrea an award, and
which Ms. Jordan identifies as “one of the leading magazines for professionals in the
fitness industry.” For example, we know nothing about the readership of Personal
Fitness Professional and the significance of Ms. Mylrea’s award. In view thereof, and
because of the infirmities in the survey and its results, we find that Applicant has not
met its burden of establishing that its proposed mark has acquired distinctiveness
despite its policing efforts.88

88 We note in any event that Applicant’s policing activities do not necessarily establish
acquired distinctiveness. See In re Wella Corp., 565 F.2d 143, 196 USPQ 7, 8 n.2 (CCPA 1977)
(“Appellant argues that various letters (of record) from competitors indicating their
discontinuance of use of its mark upon threat of legal action are evidence of its
Serial No. 85365741
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Refusal to accept specimen of use under Sections 1 and 45
The Examining Attorney has refused registration under Sections 1 and 45 of the
Trademark Act because Applicant’s specimen of use allegedly consists of one or more
pages from Applicant’s website, and does not reference that Applicant provides
seminars and workshops. Applicant submitted material that was used in training
sessions in classrooms, seminars and workshops, and Ms. Mylrea, in her declaration,
specifically states that the specimen “is not something from Applicant’s website.”89
The proposed mark is depicted on the front cover and within the four-page training
material, and includes headings such as “your Web Business,” “Metabolic Makeover”
and “Nutrition” and proposes a “30 Minute Core Workout[].”
An applicant for registration must submit a specimen showing the mark as used
in commerce. Section 1(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a);
Trademark Rule 2.34(a)(1)(iv), 37 CFR § 2.34(a)(1)(iv). A service mark specimen
“must show the mark as actually used in the sale or advertising of the services.”
Trademark Rule 2.56(b)(2), 37 CFR § 2.56(b)(2), and there must be a direct
association between the mark sought to be registered and the services specified in the
application. In re Advertising & Marketing Development Inc., 821 F.2d 614, 2 USPQ2d
2010, 2014 (Fed. Cir. 1987), quoting Trademark Act Section 45, 15 U.S.C. § 1127
(implicit in the statutory definition of a service mark is a requirement that there be
a direct association between the mark and the services). This direct association may

distinctiveness, but . . . such evidence shows a desire of competitors to avoid litigation rather
than distinctiveness of the mark.”).
89 See Feb. 19, 2014 Resp., Mylrea Dec., ¶¶ 4-6.
Serial No. 85365741
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be achieved when the specimen of use shows the mark used in the rendering of the
services. See In re Metriplex Inc., 23 USPQ2d 1315, 1316-17 (TTAB 1992) (used in
connection with the recited services as the services were being performed, i.e., during
the transmission of data via computer); In re Red Robin Enters., 222 USPQ 911, 914
(TTAB 1984) (use during the performance of entertainment services.).
Because the material which forms the specimen was used in rendering the
services, we find the specimen is acceptable. The refusal on this basis is reversed.
Decision: The refusal to register TABATA BOOTCAMP on the Principal Register
based upon mere descriptiveness and Applicant's insufficient showing of acquired
distinctiveness is hereby affirmed.
The refusal to register to accept Applicant’s specimen of use is reversed.
Because we have found the term “tabata” to be generic for Applicant’s services,
and because Applicant has not disclaimed this term, the refusal to register TABATA
BOOTCAMP on the ground of genericness is affirmed. If Applicant, however, submits
an acceptable disclaimer of the term “tabata” within 30 days of the date of this
decision, we will set this decision aside, reverse the Examining Attorney’s finding
that the proposed mark is generic and accept Applicant’s amendment in the
alternative to the Supplemental Register. See Trademark Rule 2.142(g), 37 C.F.R.
§ 2.142(g).90 See also In re Country Music Association Inc., 100 USPQ2d 1824, 1835
(TTAB 2011).

90 The disclaimer should be worded as follows: “No claim is made to the exclusive right to
use TABATA apart from the mark as shown.”