In a less that scintillating case, the Board affirmed a Section 2(e)(1) refusal to register the proposed mark DXPORTAL, finding the mark to be merely descriptive of "providing an Internet website portal in the healthcare field to provide a patient and caregivers with the patient's drug prescription information." Dictionary definitions of DX (a common abbreviation for "diagnostic") and of "portal," information on applicant's and third-party websites, and its acknowledged intention to offer diagnostic services in connection with the mark, led the Board to conclude that consumers would immediately understand that the mark "identifies a portal that will also link them with diagnostic information, specifically the diagnosis relied upon by the healthcare provider who wrote the drug prescription." In re NextGen Management, LLC, 203 USPQ2d 14 (TTAB 2023) [precedential] (Opinion by Judge Frances S. Wolfson).
Applicant argued that, although it "does intend (in the future) to include limited diagnostic information on the portal, the storing of diagnostic information is not the focus of the portal, nor is it recited in the description of services of the mark." The Board confirmed that it was proper for the Examining Attorney to look at applicant's website for possible evidence of descriptive use. The website demonstrated that providing diagnostic information is an "integral part of Applicant's website relating to drug prescriptions, even if it is not the paramount aspect." In short, [d]iagnostic information necessarily is tied to prescriptions, which treat conditions that are diagnosed."
Moreover, third-party webpages "illustrate how diagnostic information and therapeutic solutions, such as prescription drugs, are integral to each other." These webpages showed "an inherent relationship between diagnostic services and treatment, which could include prescribing drugs to address a condition." Furthermore, the term "drug prescription information" is broad enough to encompass diagnostic information on which a prescription is based.
The Board concluded that the mark DXPORTAL "as a whole conveys no more than the sum of its individually descriptive parts." And so, the Board affirmed the refusal.
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TTABlogger comment: I invite suggestions as to why this opinion is precedential. I can't think of a reason.
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