Each class in a multi-class trademark application is, in effect, a separate application. Monster Energy Co. v. Tom & Martha LLC, 2021 USPQ2d 1197, at *11 n.15 (TTAB 2021) (“With multiple class applications, the Board treats each class as a single class application, and the claims and evidence are considered as they bear on each class, separately.”). In other words, each class of services is independent from the other classes of services recited in a trademark application.

If a disclaimer is required, such as for descriptiveness, then the evidence substantiating that requirement is considered on a class-by-class basis. See In re Bonni Keller Collections Ltd., 6 USPQ2d 1224, 1226 (TTAB 1987).

Health Perks

The TTAB recently addressed a disclaimer requirement in connection with trademark applications for the marks MOLINA MY HEALTH PERKS and MY HEALTH PERKS in Class 35 (“Business administration of a wellness incentive program; …”) and Class 44 (“Providing information in the fields of health and wellness”). In re Molina Healthcare, Inc., Ser. Nos. 90887104 and 90887134 (TTAB Aug. 18, 2023).

The Examining Attorney asserted that “HEALTH PERKS” was merely descriptive of all of the services. The applicant agreed as to class 35 services for business administration of a wellness incentive program, but would only agree to disclaim “health” for the class 44 services for providing information in the fields of health and wellness.

          There is no question that “health” is descriptive of Applicant's information services, and it has been disclaimed. See In re NextGen Mgmt., LLC, 2023 USPQ2d 14, at *9 (TTAB 2023) (“Use of a term in an application's recitation of services strongly suggests that the term is merely descriptive.”); In re Six Continents Ltd., 2022 USPQ2d 135, at *18 (TTAB 2022) (a disclaimer is a concession that a term is not inherently distinctive). However, Applicant argues that the evidence of record is insufficient to support the disclaimer requirement in Class 44 of HEALTH PERKS, as a combined term, as opposed to the disclaimer of HEALTH alone which Applicant already provided.

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The record before us contains only a scintilla of evidence related to the Class 44 services, but no more.

Finding that the Examining Attorney has not carried the burden for a disclaimer requirement with respect to the Class 44 services, the TTAB held that a disclaimer of the wording HEALTH PERKS in Class 44 was not required.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.