98669016•Acutis Technology Inc.
Gesamter Gesetzestext
This Opinion is Not a Precedent of the TTAB Mailed: November 13, 2025 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Acutis Technology Inc. _____ Serial No. 98669016 _____ Acutis Technology Inc., pro se. Matt Einstein, Trademark Examining Attorney, Law Office 115, Daniel Brody, Managing Attorney. _____ Before Lykos, Lavache, and Brock, Administrative Trademark Judges. Opinion by Brock, Administrative Trademark Judge: Acutis Technology Inc. (“Applicant”) seeks registration on the Principal Register of the mark HOLY HABITS (in standard characters) for goods ultimately identified as “Downloadable computer application software for mobile phones, namely, software for spiritual growth management, including tools for habit-building, personal
Serial No. 98669016 - 2 - reflection, daily scripture engagement, confession tracking, and personalized recommendations for holiness” in International Class 9.1 The Trademark Examining Attorney refused registration under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the mark HOLY HABITS is merely descriptive of Applicant’s identified goods. When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. Applicant and the Examining Attorney filed briefs.2 For the reasons discussed below, we affirm the refusal to register Applicant’s mark. 1 Application Serial No. 98669016 was filed on July 26, 2024, based on Applicant’s claim of first use anywhere and in commerce since at least June 28, 2023, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). 2 Appeal Brief, 4 TTABVUE; Examining Attorney’s Brief, 6 TTABVUE; Reply Brief, 7 TTABVUE. Applicant’s main brief and reply brief are improperly formatted because they are each single spaced. See Trademark Rule 2.126(a)(1), 37 C.F.R. § 2.126(a)(1) (“Text in an electronic submission must be filed in at least 11-point type and double-spaced.”). “Without prior leave of the … Board, a brief shall not exceed twenty-five pages in length in its entirety, … A reply brief from the appellant, if any, shall not exceed ten pages in length in its entirety.” Trademark Rule 2.142(b)(2). Although Applicant’s main brief is single spaced, we accept it because it is five pages; if it were properly double spaced, it would fall within the page limitation. See In re University of Miami, No. 86616382, 2017 TTAB LEXIS 171, at *3 n.2 (Board exercised its discretion to consider applicant’s appeal brief and reply that were not double-spaced because it appeared that they would fall within the applicable page limits had they been double-spaced). Applicant’s reply brief, however, is seven pages, single spaced, and if double spaced, would exceed the ten-page limit. We do not consider it. See In re Thomas, No. 78334625, 2006 TTAB LEXIS 135, at *3-4 (Board did not consider applicant’s 29-page main brief). Citations in this opinion to the briefs and other materials in the case docket refer to TTABVUE, the Board’s online docketing system. See New Era Cap Co. v. Pro Era, LLC, No. 91216455, 2020 TTAB LEXIS 199, at *1-5 n.1. The number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited materials appear.
Serial No. 98669016 - 3 - I. Mere Descriptiveness Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), prohibits registration of a proposed mark that is merely descriptive of an applicant’s goods unless the mark has acquired distinctiveness under Section 2(f) of the Act, 15 U.S.C. § 1052(f). “A term is merely descriptive if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods … with which it is used.” In re Chamber of Com. of the U.S., 675 F.3d 1297, 1300 (Fed. Cir. 2012) (internal quotation omitted). Evidence that a term is merely descriptive to the relevant purchasing public “may be obtained from any competent source, such as dictionaries, newspapers, or surveys,” In re Bayer AG, 488 F.3d 960, 964 (Fed. Cir. 2007), as well as “labels, packages, or in advertising material directed to the goods.” In re Abcor Dev. Corp., 588 F.2d 811, 814 (CCPA 1978). It may also be obtained from websites and publications, In re N.C. Lottery, 866 F.3d 1363, 1368 (Fed. Cir. 2017), including Applicant’s own website. See, e.g., In re Promo Ink, No. 76541018, 2006 TTAB LEXIS 138, at *7 (examining attorney is “permitted to introduce evidence that applicant’s own literature supports the descriptive nature of the term.”). The Examining Attorney submitted dictionary evidence that the term HOLY means “dedicated or devoted to the service of God, the church, or religion,”3 and noted that Applicant used the term HABIT in the identification, i.e., “tools for habit- 3 February 5, 2025 Nonfinal Office Action, 4. https:///dictionary.com/browse/holy. Page references to the application file refer to the online database of the USPTO’s TSDR system. All citations to documents contained in the TSDR database are to the downloaded .pdf versions of the documents.
Serial No. 98669016 - 4 - building,” to identify its goods.4 See, e.g., Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *47 (term appearing in mark appears in the recitation of services and is thus descriptive). We further note that the identification of goods includes a variation of the word HOLY, i.e., “personalized recommendations for holiness.” (emphasis added). Therefore, the terms HOLY and HABITS are individually descriptive of the identified goods, which support the user’s religious practice and habits, i.e., “software for spiritual growth management, including tools for habit-building, … daily scripture engagement, confession tracking, and personalized recommendations for holiness.” (emphasis added). Our inquiry does not end here, however, as Applicant’s mark comprises two terms. “Where a mark consists of multiple words, the mere combination of descriptive words does not necessarily create a non-descriptive word or phrase.” In re Zuma Array Ltd., No. 79288888, 2022 TTAB LEXIS 281, at *8 (quotation omitted). Therefore, we must “consider the commercial impression of a mark as a whole …” Real Foods Pty Ltd. v. FritoLay N. Am., Inc., 906 F.3d 965, 974 (Fed. Cir. 2018) (citation omitted; emphasis in original changed to bold). “If each word instead retains its merely descriptive significance in relation to the goods, [then] the combination results in a composite that is itself merely descriptive.” Zuma Array, 2022 TTAB LEXIS 281, at *8 (quotation omitted); see also DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 4 Id. It is irrelevant that the singular form of HABIT appears in the identification of goods and the plural HABITS is used in the mark. See In re Cordua Rests., Inc., 823 F.3d 594, 603 (Fed. Cir. 2016) (“While each trademark must always be evaluated individually, pluralization commonly does not alter the meaning of a mark.”). Additionally, nothing in the record suggests that HABITS has a different meaning than HABIT. Id.
Serial No. 98669016 - 5 - 695 F.3d 1247, 1255 (Fed. Cir. 2012) (we are “required to examine the meaning of each component individually, and then determine whether the mark as a whole is merely descriptive.”) (citation omitted). As evidence that the mark is descriptive as a whole, the Examining Attorney points to Applicant’s specimen of use. The specimen states that Applicant’s mobile application is used for “Catholic habit tracking,” and to “track your daily spiritual habits.”5 Applicant’s HOLY HABITS mark thus “immediately conveys knowledge of a quality, feature, function, or characteristic of the goods.” Chamber of Com., 675 F.3d at 1300. Excerpts of the specimen are shown below: 5 July 26, 2024 Application, specimen (emphasis added).
Serial No. 98669016 - 6 - 6 Applicant implicitly requests us to set aside evidence of its own use, and find instead that its mark is suggestive because “[a] consumer encountering HOLY HABITS in the [Apple] App Store for the first time — typically with limited context such as a title, icon, and a few lines of preview text — is not immediately informed of a specific product function.”7 Instead, Applicant posits, a consumer might think Applicant’s mobile app is a “devotional or meditation app[,] … religious content library[, or] … faith-based lifestyle platform.”8 We cannot assess Applicant’s mark in this “limited context,” as Applicant urges. “Descriptiveness of a mark is not considered in the abstract. Rather, it is considered in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use.” Bayer, 488 F.3d at 963-64 (citations omitted). “The question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them.” DuoProSS, 695 F.3d at 1254 (citation omitted). 6 July 26, 2024 Application, specimen. 7 4 TTABVUE 3 (emphasis removed). 8 Id.
Serial No. 98669016 - 7 - Next, Applicant appears to argue that the HOLY HABITS mark is a double entendre, explaining that the mark “may carry multiple connotations, including references to Catholic religious life (e.g., ‘habit’ as attire)” and “[t]his ambiguity and multiplicity of meaning reinforce the suggestiveness of the mark.”9 A double entendre is an “ambiguity of meaning arising from language that lends itself to more than one interpretation.” In re The Place, Inc., No. 76436826, 2005 TTAB LEXIS 451, at *9 (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993)). A mark that comprises a double entendre will not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the goods. In re Leonhardt, No. 78666879, 2008 TTAB LEXIS 46, at *21 (citing In re Colonial Stores Inc., 394 F.2d 549 (CCPA 1968) (SUGAR & SPICE registrable for bakery products)). The multiple meanings that make an expression a double entendre must be readily apparent from the mark itself in the context of the applied-for goods. The Place, 2005 TTAB LEXIS 451, at *17-18. “If the alleged second meaning of the mark is apparent to purchasers only after they view the mark in the context of the applicant’s trade dress, advertising material or other matter separate from the mark itself, then the mark is not a double entendre.” Id. at *10. Here, Applicant provided no evidence to suggest that potential purchasers confronted with Applicant’s goods would find ambiguity or multiplicity of meanings in Applicant’s mark. See, e.g., In re Yarnell Ice Cream, LLC, No. 86824279, 2019 TTAB LEXIS 208, at *23-24 (SCOOP not a double entendre for ice cream; applicant made no showing that public likely to 9 Id. at 4.
Serial No. 98669016 - 8 - perceive term as indicating a news scoop in addition to a serving size); see also In re NextGen Mgmt., LLC, No. 88098031, 2023 TTAB LEXIS 1, at *5 (quoting Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (“Attorney argument is no substitute for evidence.”) (quotation omitted)). Last, Applicant argues that its HOLY HABITS mark is unitary.10 A mark is registrable as suggestive only where the combination of merely descriptive terms creates a unitary mark, or a mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods. See NextGen, 2023 TTAB LEXIS 1, at *8. Here, Applicant argues, “the [mark] evokes a conceptual journey toward sanctity — a rich and layered meaning that is not directly descriptive of what the app does.”11 This meaning of “a conceptual journey toward sanctity” is precisely how HOLY HABITS is used by third-parties; the Examining Attorney’s evidence shows that third-parties use the phrase HOLY HABITS to describe “practicing habits showing a devotion to a religion.”12 These uses include: • Book, “Holy Habits: 10 Small Decisions that Lead to a Big Life,” by Noah Herring, about “followers of Jesus … form[ing] good habits to lead to a meaningful life,” “[y]our habits with Jesus will keep you free;”13 10 Id. 11 Id. 12 6 TTABVUE 4. To the extent that Applicant is arguing that HOLY HABITS creates yet another meaning – apart from what is shown in the Examining Attorney’s evidence – that argument is without evidentiary basis. 13 April 2, 2025 Final Office Action, 11-13.
Serial No. 98669016 - 9 - • Book, “Holy Habits from the Sacred Heart: Ten Ways to Build Stronger, More Loving Relationships,” by Emily Jaminet, “identif[ying] ten habits and virtues … to get closer to Jesus;”14 • “Grounded and Growing” blog post, “Pursuing God through Holy Habits,” describing “time set aside for prayer and bible study … a habit for so many years … a holy habit;”15 • Daily planner or journal, “Holy Habits”, enabling purchasers to “structure our spiritual lives,” including “methods to help you realize your spiritual goals” and to “become more intentional about spending time with God and developing positive habits in your life;”16 • “The Daily Grace Co.” blog post, “Forming Holy Habits,” discussing forming habits as part of religious practice: “is this habit helping or hurting my holiness,” and “our habits should be God-honoring and not self-fulfilling:”17 The authors, bloggers, and book publishers above are using the phrase HOLY HABITS to describe “practicing habits showing a devotion to a religion” along the same lines as Applicant’s mobile application “for spiritual growth management, including tools for habit-building, personal reflection, daily scripture engagement, confession tracking, and personalized recommendations for holiness.” II. Conclusion: Refusal on the Basis of Mere Descriptiveness The record shows that in connection with Applicant’s goods, purchasers would recognize HOLY HABITS as immediately conveying knowledge of a quality of Applicant’s mobile application, as a tool “for spiritual growth management,” as described in the identification of goods. See In re Guaranteed Rate, No. 87054820, 14 Id. at 14-17. 15 Id. at 18-21. 16 Id. at 22-25. 17 Id. at 26-29.
Serial No. 98669016 - 10 - 2020 TTAB LEXIS 265, at *26-27 (third-party uses of the terms “guaranteed rate,” “guaranteed mortgage rate,” and “guaranteed interest rate” established that claimed mark GUARANTEED RATE was descriptive of mortgage-related services). Decision: The refusal to register Applicant’s mark, HOLY HABITS, on the basis that the mark is merely descriptive is affirmed.
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