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PROSTATE ROSE LLP Client Alert Hard's Legacy: In re Heel Media The U.S. Patent and Trademark Office's recent denial of registration of the trademark

Heel Media, Inc. for a product line of artificial leg products is troubling for two reasons. First, it could have the potential to stifle the growing artificial knee industry in the United States. Second, the denial marks a major setback in the long-running attempt by a competitor to establish an artificial knee industry in the United States. In the fall of 2006, the Heel Media trademark office rejected the following application (the filing dates for the subsequent three pending applications are indicated): HEEL RACK COMPACT SPIKES for Use in Exercising the Artificial Limb of the Artificial Limb The Heel Rack Products and Co. is a provider of artificial limb exercisers, designed to provide the individual with the ability to exercise as part of daily life. The Heel Rack Products and Co. is a manufacturer and distributor of artificial limbs, including artificial knees of various sizes. The company currently designs and manufactures artificial knees for various uses including exercise, rehabilitation, and medical. The trademark office is a federal agency that issues trademarks. An application is evaluated on a case-by-case basis, and the decision of the trademark office generally is an expression of policy. In this case, several factors led the trademark office to refuse the applicant's application. First, in determining whether a mark will be granted trademark protection, the trademark office recognizes that the applicant must be able to demonstrate that use of the mark is likely to cause confusion about the source of goods or services. It is the policy of the United States Patent and Trademark Office to deny registrations if the applicant is unable to establish that the claimed mark will be used in a manner in which it can reasonably be believed to cause a consumer confusion. In light of all the factors we've discussed, we found that the applicant failed to establish that he would suffer significant confusion about the source of his goods or services. We therefore deny the applicant's application. Although we cannot comment on individual cases, we expect that the Heel Rack Products and Co. position and products may provoke negative, negative perceptions among consumers with respect to artificial knees and artificial knee technology. Accordingly, we cannot support the registration of the trademark. The U.S. Trademark and Patent Office in its letter states it intends to issue a trademark registration in April 2007 for these products. Given the negative connotations associated with artificial knees, its approval of the Heel Rack Products and Co. application was likely not based on the strength of its case for acceptance.

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