Wright Medical Technology, Inc.

Trademark Trial and Appeal Board

Jan 13, 2011

No. 77648337 (T.T.A.B. Jan. 13, 2011)

Mailed: January 13, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Wright Medical Technology, Inc.
________

Serial No. 77648337
_______

Shawn D. Sentilles, Esq. for Wright Medical Technology,
Inc.

Mark A. Rademacher, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney).
_______

Before Walters, Bergsman and Wellington,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Wright Medical Technology, Inc. filed an application
for the mark FUSION FOAN, in standard character format, for
“surgical implant material for promoting fusion of bone
comprising collagen in the form of human allograft tissue.”1
Registration was refused on the ground that the
proposed mark used in connection with the identified goods

1 Application Serial No. 77648337, filed January 13, 2009, based
on applicant’s stated intent to use the mark in commerce.
Section 1(b) Trademark Act.

THIS OPINION IS NOT
A PRECEDENT OF THE TTAB
Serial No. 77648337
2
is merely descriptive. Section 2(e)(1) of the Lanham Act,
15 U.S.C. §1052(e)(1). When the refusal was made final,
applicant appealed. Both applicant and the examining
attorney filed briefs.
The examining attorney contends that FUSION FOAM is
merely descriptive of the identified goods because the term
“‘fusion’ immediately informs consumers that the surgical
implant material is used to fuse, i.e., the act of uniting
two or more bones of a joint” and that “‘foam’ immediately
informs consumers that the material is in a lightweight
cellular form...or is something resembling foam.” Brief,
(unnumbered) p. 3. Taken together, the examining attorney
argues that the terms do not lose their descriptive nature,
but would be immediately understood by consumers as “that
the surgical implant material is made of a foam or foam-
like material and is used to fuse bone.” Brief,
(unnumbered) p. 4. In support of the refusal, the
examining attorney submitted the following definitions:
Fusion2
1. the joining into a single entity, as in optic fusion.
2. The act of uniting two or more bones of a joint. Also called
ankylosis.
3. the surgical joining of two or more vertebrae, performed to
stabilize a segment of the spinal column after severe trauma,

2 From Mosby’s Dictionary of Medicine, Nursing & Health
Professions. Elsevier Health Sciences, retrieved March 14, 2009.
Attached to March 14, 2000 Office Action.

Serial No. 77648337
3
herniation of a disk, or degenerative disease. Under general
anesthesia the cartilage pads are removed from between the
posterior parts of the involved vertebrae. Bone chips are cut
from one of the patient’s iliac crests and inserted in place of the
cartilage, fusing the articulating surfaces into one segment of
bone.

Foam3
1. a light frothy mass of fine bubbles formed in or on the surface
of a liquid or from a liquid: as a : a frothy mass formed in
salivating or sweating b : a stabilized froth produced chemically
or mechanically and used especially in fighting oil fires c : a
material in a lightweight cellular form resulting from introduction
of gas bubbles during manufacture…
3. something resembling foam

The examining attorney also submitted a printout of a
“patent abstract” for US patent no. 5501706 (“Medical
implant structure and method for using the same”).4 In
pertinent part, this abstract describes a medical implant
structure that “includes a containment member preferably
manufactured from collagen (particularly collagen foam)”
and that “[i]n use, the implant structure is inserted
within a patient and positioned adjacent to and against the

3 From Merriam-Webster Online Dictionary (2009); www.merriam-
webster.com, retrieved March 14, 2009. Attached to March 14,
2000 Office Action. In his brief, the examining attorney further
requests that the Board take judicial notice that “foam” is also
“identified as a ‘spongy material’” and cites to an additional
dictionary definition. Brief, (unnumbered) p. 3. A printout of
the definition (from The American Heritage Dictionary of the
English Language, 2007) is attached to the brief. We take notice
of this definition entry, but further note for sake of clarity
that the full definition reads: “any of various light, porous,
semirigid or spongy materials used for thermal insulation or
shock absorption, as in packaging.” Thus, in context, the
defined meaning involves goods in a different field of use.
4 From www.patentstorm.com, printout attached to March 14, 2000
Office Action.
Serial No. 77648337
4
tissue region to be reinforced, it is then physically
shaped to conform with adjacent tissue materials.”
(emphasis added).
In its brief, applicant acknowledges that “[t]he term
‘FUSION’ is a medical term that is admittedly descriptive
of surgical procedures that are used to fuse bones
together” and that “[a]dmittedly, the term “FOAM” is
descriptive of a desired characteristic of applicant’s
contemplated product.” Brief, p. 3. Nevertheless,
applicant argues that the term “foam” has no inherent
meaning in the orthopedic field and, ultimately, “there is
nothing about the composite mark ‘FUSION FOAM’ that would
lead relevant consumers (in this case, orthopedic surgeons)
to logically or inevitably conclude that the mark describes
an ‘implant material for promoting fusion of bone.” Id.
A term is merely descriptive if it immediately conveys
knowledge of a significant quality, characteristic,
function, feature or purpose of the goods with which it is
used. In re Gyulay, 820 F.2d 1216, 3 USPQ 1009 (Fed. Cir.
1987). Whether a particular term is merely descriptive is
determined in relation to the goods for which registration
is sought and the context in which the term is used, not in
the abstract or on the basis of guesswork. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
Serial No. 77648337
5
1978); In re Remacle, 66 USPQ 1222, 1224 (TTAB 2002). In
other words, the issue is whether someone who knows what
the goods are will understand the mark to convey
information about them. In re Tower Tech, Inc., 64 USPQ
1314, 1316-1317 (TTAB 2002); In re Patent & Trademark
Services Inc., 49 USPQ2d 1537, 1539 (TTAB 1998); In re Home
Builders Association of Greenville, 18 USPQ2d 1313, 1317
(TTAB 1990); In re American Greetings Corp., 226 UPSQ 365,
366 (TTAB 1985).
We affirm the refusal.
Based on the dictionary definitions, we believe that
the proposed mark would be immediately understood as
describing a lightweight, frothy material that is used for
adhering or joining materials. The patent abstract of
record, in describing goods very similar or identical to
those identified in the application, references a collagen
(the material used in applicant’s identified goods) as
taking the form of “collagen foam.” The combination of the
terms FUSION and FOAM does not result in a composite that
alters the descriptive meaning of either term or the mark
as a whole, and refusal on the ground of descriptiveness is
appropriate. See In re Gould Paper Corp., 834 F.2d 1017, 5
USPQ2d 1110, 1111 (Fed. Cir. 1987). Viewing the entire
mark in the context of the identified goods, we have no
Serial No. 77648337
6
doubt that it would be understood by consumers as
describing the purpose and nature of the “surgical implant
material for promoting fusion of bone comprising collagen
in the form of human allograft tissue.” In other words,
the mark describes the goods being comprised of a foam or
foam-like material that is used for promoting bone fusion.
Finally, in attempting to make its point the mark has
a “subtle, understated characteristic...that puts it in the
suggestive rather than descriptive category,” applicant
asserts that “[t]he situation would be entirely different
if orthopedic surgeons were currently using ‘fusion foam’
or some variation thereof as a descriptive term, but to the
best of applicant’s knowledge, the combination ‘fusion
foam’ is not currently used in the orthopedic or broader
medical fields.” Brief, p. 4. We have long held that even
if an applicant is the only user (or potential user) of a
term, this does not mean that said term is not descriptive.
In re Sun Microsystems, Inc. 59 USPQ2d 1084, 1087 (TTAB
2001) (“The Fact that AGENTBEANS does not appear in the
dictionary in not determinative. Likewise, the fact that
applicant may be the first and/or only entity using the
phrase AGENTBEANS is not dispositive where, as here, the
term unequivocally projects a merely descriptive
connotation”); In re Acuson, 225 USPQ 790, 792 (TTAB 1985)
Serial No. 77648337
7
(“A descriptive term used first or even only by applicant
is not registrable as long as the relevant purchasing
public perceives of the term as describing the good”); and
In re Gould, 173 USPQ 243, 245 (TTAB 1972) (“The fact that
applicant may be the first and possibly the only one to
utilize this notation in connection with its services
cannot alone alter the basic descriptive significance of
the term and bestow trademark rights therein”).
Decision: The refusal to register is affirmed and
registration to applicant is refused.