1047406 Ontario Ltd. and Purifics ES, Inc.v.UVCleaning Systems, Inc. d/b/a Puralytics Corporation

Trademark Trial and Appeal Board

Apr 14, 2014

No. 91194706 (T.T.A.B. Apr. 14, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: Mailed:
March 5, 2014 April 14, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

1047406 Ontario Ltd.
and
Purifics ES, Inc.
v.
UVCleaning Systems, Inc. d/b/a Puralytics Corporation
_____
Opposition No. 91194706
_____

Myall S. Hawkins and Lisa H. Meyerhoff of Baker & McKenzie LLP for 1047406
Ontario Ltd. and Purifics ES, Inc.

Salumeh R. Loesch and David P. Petersen of Klarquist Sparkman, LLP for
UVCleaning Systems, Inc.
_____

Before Wellington, Adlin and Masiello, Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:

UVCleaning Systems, Inc. (“applicant”) filed an application to register the
mark PURALYTICS in standard character form for “Waste water purification units;
Opposition No. 91194706
2

Water purification and filtration apparatus; Water purification units,” in
International Class 11.1
1047406 Ontario Ltd. (“Ontario Ltd.”) and Purifics ES, Inc. (“Purifics ES”)
(collectively “opposers”) opposed registration of the mark under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that applicant’s mark, as used in
connection with applicant’s goods, so resembles opposers' previously used and
registered mark PURIFICS as to be likely to cause confusion, mistake or deception.
Opposers allege that since December 1993, they have provided “environmental
remediation products and services in the fields of soil, waste, and water treatment
and air purification,” including “waste water purification units, water purification
and filtration apparatus, and water purification units.”2 Ontario Ltd. has pleaded
ownership of U.S. Registration 2062935 for the mark PURIFICS in standard
character form for “environmental remediation services, namely, soil, waste and
water treatment services and air purification services,” in International Class 40.3
Applicant denied the salient allegations of the notice of opposition.
The parties have filed briefs on the case. Opposers’ reply brief was stricken
as untimely by Board order of August 28, 2014. An oral hearing was held on March
5, 2014.

1 Application Serial No. 77861438, filed October 30, 2009 under Trademark Act § 1(b), 15
U.S.C. § 1051(b).
2 Notice of opposition, ¶¶ 1-2 (TTABvue # 1).
3 Reg. No. 2062935 issued on May 20, 1997; Section 15 affidavit filed and acknowledged;
renewed.
Opposition No. 91194706
3

I. The record
The record includes the pleadings and, by operation of Trademark Rule
2.122, 37 C.F.R. § 2.122, the application file for applicant’s mark. The record also
includes the following testimony and evidence.
A. Opposers’ evidence.
Opposers made of record, with their notice of opposition, a current printout of
information from the electronic database records of the Patent and Trademark
Office showing the current status and title of pleaded Registration. No. 2062935.
Opposers also made of record the testimony and discovery depositions (with
exhibits thereto) of the following witnesses:
Testimony deposition of opposers’ president Brian Butters (TTABvue
## 35 and 37).

Discovery deposition of applicant’s chief executive officer Mark Owen
(“Owen I,” TTABvue # 36).

B. Applicant’s evidence.
Applicant made of record testimony depositions (with exhibits thereto) of the
following witnesses:
Testimony deposition of applicant’s chief executive officer Mark Owen
(“Owen II,” TTABvue ## 40-42).

Testimony deposition of Marla Beier, litigation assistant for applicant’s
counsel (TTABvue # 38).

Testimony deposition of Heidi Van Baalen, trademark paralegal for
applicant’s counsel (TTABvue # 39).

Applicant also submitted notices of reliance on the following:
Opposition No. 91194706
4

Opposers’ responses to applicant’s first set of interrogatories and first
and second sets of requests for admission (TTABvue # 33).

Printouts of information from the electronic database records of the
Patent and Trademark Office relating to various third-party U.S.
trademark registrations (TTABvue #34).

II. The parties.
A. Opposers.
Ontario Ltd. (or its predecessor in interest) commenced business in 1993.
Purifics ES was formed in 2003 and is Ontario Ltd.’s wholly-owned subsidiary.
Purifics ES is now the operating company that does business under the PURIFICS
mark, and it does so under a license from Ontario Ltd. Although both companies
are based in Canada, 85-90% of their business is with the United States market.4
B. Applicant.
Applicant is an Oregon corporation organized in 2007, initially doing
business under its corporate name UVCleaning Systems. In 2009, applicant
adopted the trade name Puralytics. Applicant is headquartered in Beaverton,
Oregon, and markets its goods in 36 countries, including the United States.5 A
substantial percentage of its goods are sold to customers abroad.6
III. Opposers’ evidentiary objections.

A. Opposers object to the admission of applicant’s Exhibit 127, consisting of
printouts of various internet web pages showing purported third-party trademarks

4 See Butters 8:23-10:6; and opposers’ response to request for admission No. 40.
5 Owen I 8:2-10:11; 75:24-76:8.
6 Id. 78:23-79:13.
Opposition No. 91194706
5

that include the designation PUR-, on the ground that applicant did not provide the
date on which such web pages were published or accessed. Applicant contends that,
for this reason, the evidence does not meet the requirements for admission of
internet materials as “publicly available evidence,” citing Safer Inc. v. OMS
Investments Inc., 94 USPQ2d 1031, 1039 (TTAB 2010).7 The objection is overruled.
The requirements established by Safer relate to internet materials offered under a
notice of reliance as self-authenticating documents within the meaning of 37 C.F.R.
§ 122(e). The materials at issue were not so offered; rather, they were entered into
evidence under the testimony of Ms. Beier and Ms. Van Baalen, who explained how
they accessed the materials on the internet, the dates on which they did so, and how
they created the printouts of which Exhibit 127 is composed.8 Their testimony is
sufficient to admit these materials for what they show on their face.
B. Opposers object to the same Exhibit 127 on the ground that the evidence
contained therein is not relevant. Opposers argue that, in order for evidence
regarding third-party marks to be relevant, applicant must demonstrate that the
third-party marks were actually used and well promoted and have been recognized
by consumers, citing Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison
Fondee en 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005). The
objection is overruled. Palm Bay did not find such evidence excludable for lack of
relevance; rather, it merely discussed the limited probative value of such evidence

7 Applicant’s brief at 2-3.
8 The Beier and Van Baalen depositions are devoted in their entireties to placing Exhibit
127 in evidence.
Opposition No. 91194706
6

where the extent of use, promotion, and recognition of the third-party marks has
not been shown. We agree with opposers that internet web pages, alone, do not
demonstrate the extent to which a trademark has actually been used on a product
or in connection with a service, if at all; however, such web pages, which are in fact
available online to the general public, are relevant to show the existence of marks
that include the PUR- formative and that these marks have been disseminated
online in connection with the offering of products and services relating to water
treatment.
C. Finally, opposers object to the entirety of the testimony of Mses. Beier and
Van Baalen, on the ground that it is inadmissible hearsay. Opposers contend that
Mses. Beier and Van Baalen undertook purely ministerial duties in collecting the
webpages and have no knowledge on which to base any testimony as to “whether
the goods associated with the third-party marks are sold; when the goods were first
sold, if ever; whether any other trade channels or forms of advertising were used
with the third-party goods; or whether consumers recognized the third-party marks
or the extent of their recognition of the marks.”9 The objection is overruled. Mses.
Beier and Van Baalen testified only as to the manner in which they collected the
materials included in Exhibit 127. It is not hearsay and is sufficient for the
purposes of putting Exhibit 127 into the record, for what it shows on its face. Note
also that the Board does not ordinarily strike testimony taken in accordance with
the applicable rules on the basis of substantive objections; rather, such objections

9 Opposers’ brief at 4.
Opposition No. 91194706
7

are considered by the Board in its evaluation of the probative value of the testimony
at final hearing. Krause v. Krause Publications Inc., 76 USPQ2d 1904, 1907 (TTAB
2005); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1326 (TTAB
1992).
IV. Applicant’s evidentiary objections.
A. Applicant objects on grounds of hearsay to Mr. Butters’ testimony that an ex-
employee named Owen Egan stated that, at a particular time, he thought that
Purifics and Puralytics were the same company. See Butters I 44:23-45:3. Mr.
Egan’s statement was offered for the truth of the matter asserted (i.e., to
demonstrate that he was confused). Mr. Butters’ account of the incident is far too
vague to be within the state-of mind exception of the hearsay rule. Accordingly, we
sustain the objection. Georgia-Pacific Corp. v. Great Plains Bag Co., 614 F.2d 757,
204 USPQ 697, 701 (CCPA 1980).
B. Under the rubric of an “evidentiary objection,” applicant objects that
“Opposers did not assert common law rights in their Notice of Opposition,” and that
they “have provided no evidence of any prior use or common law rights in the
PURIFICS mark outside of their Registration.”10 To the extent that applicant seeks
to characterize opposers’ common law rights as an unpleaded claim as to which we
should decline to receive evidence and testimony, the objection is overruled; the
notice of opposition repeatedly asserts prior use of opposers’ mark on goods not

10 Applicant’s brief at 21-22.
Opposition No. 91194706
8

included in the pleaded registration. Otherwise, the “objection” merely goes to the
sufficiency of opposers’ proof and provides no basis for exclusion of any evidence.
V. Standing.
Ontario Ltd. has properly made of record its pleaded Registration. No.
2062935; and the evidence demonstrates that Purifics ES makes use of the
PURIFICS mark as a licensee of Ontario Ltd.11 Opposers have thus shown that
they are not mere intermeddlers and have established their standing to oppose
registration of applicant’s mark. See Cunningham v. Laser Golf Corp., 222 F.3d
943, 55 USPQ2d 1842 (Fed. Cir. 2000); Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023 (Fed. Cir. 1999); Lipton Industries, Inc. v. Ralston Purina Co., 670
F.2d 1024, 213 USPQ 185 (CCPA 1982). See also Syngenta Crop Protection Inc. v.
Bio-Chek LLC, 90 USPQ2d 1112, 1118 n.8 (TTAB 2009); Chicago Bears Football
Club Inc. v. 12TH Man/Tennessee LLC, 83 USPQ2d 1073, 1075 (TTAB 2007)
(licensees have standing to oppose).
VI. Priority.
In view of opposer Ontario Ltd.'s ownership of a valid and subsisting
registration of its pleaded mark, priority is not at issue with respect to the mark
and services identified in that registration. King Candy, Inc. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974). To the extent that
opposers assert prior use of their mark in connection with goods, such priority must
be proven, because it is not established by the registration.

11 Butters 8:23-10:6; opposers’ response to interrogatory No. 5.
Opposition No. 91194706
9

For purposes of testing opposers’ asserted priority with respect to goods, we
look to the filing date of the opposed application, which is October 30, 2009. Under
Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c), applicant is entitled to rely
on the filing date of its application as its date of constructive use. Larami Corp. v.
Talk To Me Programs Inc., 36 USPQ2d 1840 (TTAB 1995); Zirco Corp. v. American
Telephone and Telegraph Co., 21 USPQ2d 1542 (TTAB 1991). Although applicant’s
witness stated that applicant first used its mark “in the beginning of 2009,”12 the
evidence does not clearly establish any date of use earlier than the filing date of the
application. In any event, as discussed below, opposers have demonstrated use of
their mark on goods prior to this time.
The evidence of opposers’ early use of their mark is very scant, but we find it
sufficient to show use of the mark in connection with goods earlier than 2009. A
news article from June 1998 makes note of opposers’ Photo-Cat water treatment
systems and includes a photograph of equipment bearing the PURIFICS mark.13
An advertisement, bearing the PURIFICS mark, for opposers’ booth at the
Brownfields 2004 trade show makes reference to the Photo-Cat air/water treatment
systems, with a photograph of the product.14 (If the mark is on the goods, it is not
legible.) A certificate of NSF International, addressed to Purifics ES and dated
June 6, 2008, relates to opposers’ Photo-Cat product, stating, “NSF International
Certifies that the products appearing on this Listing conform to the requirements of

12 Owen I 13:25-14:18.
13 “New remediation technology uses titanium dioxide, light to destroy contaminants in
water,” U.S. Water News, June, 1998, p. 16. See Butters Exhibit 13.
14 Butters Exhibit 16.
Opposition No. 91194706
10

NSF/ANSI Standard 61 – Drinking Water System Components – Health Effects.”15
Opposers’ witness testified that the certification “is a requirement in many states in
the U.S. before you can sell your wares for drinking water application. … It’s an
important third-party validation that your product, in this case, our photocatalytic
product, does not do any harm to the water. It doesn’t release any chemicals or
other undesirable minerals or metals to the water.”16 The record contains no
documentation or even testimony relating to early sales or shipments of goods
bearing the PURIFICS mark. The testimony of opposers’ witness was vague and
reticent with respect to details of early use of the mark on goods. Nonetheless, we
find the evidence sufficient to demonstrate that prior to 2009, opposers associated
the designation PURIFICS with their photocatalytic water purification system, at
least as a trade name.
In sum, priority is not an issue with respect to the services recited in
opposers’ pleaded registration vis-à-vis the goods listed in the application, and
opposers have demonstrated priority with regard to their use of the PURIFICS
mark on a water treatment unit.
VII. Likelihood of confusion.
Our determination of likelihood of confusion is based on an analysis of all of
the probative facts in evidence that are relevant to the factors set forth in In re E. I.
du Pont de Nemours & Co. 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also In
re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003).

15 Butters Exhibit 12.
16 Butters 17:8-18:11.
Opposition No. 91194706
11

A. The parties’ goods and services.
We consider first the similarity or dissimilarity between applicant’s goods
and the services recited in opposers’ registration. Applicant seeks registration of its
mark for:
Waste water purification units; Water purification and
filtration apparatus; Water purification units.
Opposers’ pleaded registration covers the following services:
Environmental remediation services, namely, soil, waste
and water treatment services and air purification
services.
Opposers’ recitation of services is broad. The phrase “water treatment
services” clearly encompasses water purification services; and presumably the
provision of water treatment services would likely entail the use of “Water…
filtration apparatus” or “Water purification… apparatus,” as identified in
applicant’s application. The question before us, however, is whether applicant’s
goods and opposers’ services are related in such a way that they may be
encountered by the same persons under circumstances that could, because of the
similarity of the marks used with them, give rise to the mistaken belief that they
originate from or are in some way associated with the same producer. Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399. 1410 (TTAB 2010). The
commercial aspects of environmental remediation services and water purification
equipment are not a matter of common knowledge. Accordingly, it is not a foregone
conclusion that applicant’s goods and opposers’ services are commercially related
merely because the goods might be used in rendering the services. Opposers have
Opposition No. 91194706
12

presented little in the way of evidence or testimony to persuade us that customers
would believe that a single company would offer both the services and the goods.
Indeed, the testimony and evidence provide only a vague idea of the nature of
opposers’ services,17 and at times opposers’ witness did not appear to appreciate the
difference between providing remediation services and selling customized
remediation equipment.18 Applicant contends that it sells water purification
apparatus but does not provide environmental remediation services of any kind.19
Opposers, for their part, have demonstrated that they sell water purification goods,
but their involvement in remediation services is established primarily by the
statutory presumptions accorded their pleaded registration under 15 U.S.C. § 7(b).
Lacking better evidence than this, we cannot conclude that there is a commercial
relationship between applicant’s goods and opposers’ services such that customers
would be likely to suffer source confusion.
We next compare opposers' goods with those identified in the application.
Opposers have shown that they produce, among other goods, a water purification
unit called Photo-Cat that is marked with the PURIFICS brand. Opposers’ website
describes the product as follows:
Photo-Cat purifies water of chemicals, biologicals and
certain metals to very high standards of purity.

17 When asked to list the services that opposers offer, Mr. Butters listed design services,
startup services, after-sales support, “control or software services for our products,” energy
services, engineering services, and certification services, none of which squarely match the
services recited in opposers’ registration. See Butters 19:2-20:6.
18 Butters 46:4-11, in which the witness characterized applicants as providing a service.
19 Owen I 54:3-6; Owen II 10:22-11:6; 13:12-16.
Opposition No. 91194706
13

Photo-Cat systems will treat water with a wide range of
organics and concentrations, suspended oil, turbidity,
high levels of total dissolved solids, and metals. These
systems are fully automated and DO NOT require
chemical oxidants.
…
Photo-Cat is produced to meet the specifications of a
variety of clients in remediation, industrial, nuclear,
military, pharmaceutical, potable, metals removal,
process and laboratory applications.
These specifications can include NSF certification, food
grade construction, pressure vessel certification, leak
proof designs, customer specific materials of construction,
specific instrumentation, performance factors, durability,
and wash-down capability.20
Opposers' witness described the main markets for opposers’ goods as “municipal,
industrial, and remedial,” and explained as follows:
Municipal water is drinking water and it’s water reuse
and it’s wastewater treatment.
…
[Water reuse] means that you clean up the water, that it
can be reused for drinking water or other residential uses.
…
[Wastewater treatment is] upgrading the sewage to a
reuse standard.
…
Industrial market involves… cleaning up the water that’s
discharged from industry…. cleaning up water going into
industry…. reusing the water in industry.
…
[Industrial customers] are various departments of the
U.S. government….[and] private entities.
…
[Remedial] involves cleaning up groundwater for surface
water discharge, reinjection, discharge to wastewater
treatment plants. … [Groundwater for surface water
discharge] means we clean up the contaminated

20 Butters Exhibit 14 at 000126-7.
Opposition No. 91194706
14

groundwater such that it’s clean enough that it can be
discharged back into the environment directly.
…
[Remedial customers are] Industry and municipalities.21

In our analysis, when we consider applicant’s goods we look only to the goods
as identified in the application (even though the record may show that applicant’s
goods are somewhat different in nature from those of opposers), because the
application defines the scope of the registration that applicant seeks. Stone Lion
Capital Partners, LP v. Lion Capital LLP, __ F.3d __, 110 USPQ2d 1157, 1161 (Fed.
Cir. 2014), Octocom Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). Doing so, we find the parties’ goods to be
legally identical, as it is clear that opposers’ goods, as shown by the evidence, are
encompassed within the scope of “Water purification and filtration apparatus;
Water purification units.” Accordingly, with respect to the parties’ goods, we find
that the du Pont factor of the similarity or dissimilarity of the goods favors a finding
of likelihood of confusion.
B. Customers; channels of trade; conditions of sale.
Applicant has submitted evidence and testimony to demonstrate that its
goods consist of two distinct products (and several variations thereof) that are
offered to quite distinct customer classes. One product, called SolarBag, is a small
container for water that, when exposed to the sun, will purify the water and render
it potable. It is marketed to recreational users such as campers, fishers, and
backpackers; it is marketed to non-governmental organizations such as UNICEF

21 Butters 64:24-67:7.
Opposition No. 91194706
15

and USAID, primarily for use abroad; and it is also appropriate for inclusion in
emergency preparedness kits.22 The other product, called Shield, is marketed to
“light industry,” especially to laboratories for the production of ultra-pure water and
treatment of waste emanating from the laboratory.23
Although applicant’s customers may appear to be distinct from opposers’
(discussed above in part VII(A)), these distinctions arise from differences between
the parties’ goods that are not reflected in applicant’s identification of goods.
Opposers correctly argue that, because the application covers water purification
units without limitation, we must consider that applicant’s goods may be purchased
by all potential customers for such goods. Stone Lion 110 USPQ2d at 1162;
Octocom, 16 USPQ2d at 1787-8; Paula Payne Products Co. v. Johnson Publishing
Co., 473 F.2d 901, 177 USPQ 76 (CCPA 1973). Similarly, we must assume that
applicant’s goods travel through all normal trade channels for such goods, id., and
such channels of trade would include those in which opposers’ goods are found.
Considering the breadth of applicant’s identification of goods, the potential
customers for such goods would include the types of municipalities, government
agencies, and industries to which opposers offer their goods. Stone Lion, 110
USPQ2d at 1163. Accordingly, the du Pont factor of the similarity or dissimilarity
of established, likely to continue trade channels favors a finding of likelihood of
confusion.

22 Owen I 31:13-24.
23 Id. 32:3-33:4.
Opposition No. 91194706
16

We note applicant’s argument that customers for remediation services and
water purification units are sophisticated and exercise great care in selecting such
goods and services.24 However, the evidence shows that customers for applicant’s
SolarBag product, which has been offered on Amazon.com for $75.05,25 include
consumers such as campers and backpackers.26 More importantly, while applicant’s
customers may in fact include highly sophisticated customers, we cannot base our
decision on potential purchasers not specified in the identification of applicant’s
goods. Stone Lion, 110 USPQ2d at 1163. The care and sophistication of potential
customers is a neutral factor in our analysis.
C. The marks at issue.
We next consider the similarity or dissimilarity of the marks PURIFICS and
PURALYTICS in terms of appearance, sound, meaning, and overall commercial
impression. Palm Bay Imports, 73 USPQ2d 1689. We base our determination on a
consideration of the marks in their entireties. Id.; In re National Data Corp., 753
F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also Franklin Mint Corp. v.
Master Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981). However, an
analysis of individual aspects of the marks is a permissible part of our
determination. Price Candy Company v. Gold Medal Candy Corporation, 220 F.2d
759, 105 USPQ 266, 268 (CCPA 1955). In fact, there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature

24 Applicant’s brief at 33; Owen II 19:13-20:10; 29:24-30:6.
25 Owen I, Exhibit 6.
26 Owen I 31:13-24.
Opposition No. 91194706
17

of a mark, provided the ultimate conclusion rests on a consideration of the marks in
their entireties. Stone Lion, 110 USPQ2d at 1161.
Opposers emphasize that both marks at issue begin with the syllable PUR-
and end with the syllable –ICS; and that customers are likely to be more strongly
impressed by the initial component of a mark than the remainder of it.27 Opposers
also argue that “both marks suggest the idea of water purification goods and
services”; and that both parties selected the syllable PUR- in order to convey this
meaning.28 Moreover, opposers claim that in selecting their mark, they “wanted a
mark that suggested to consumers the idea that purification was accomplished
using photocatalytic means,” and that in this regard the motives of both parties, in
selecting their respective marks, were the same.29
While we acknowledge the elements of similarity between the marks, we also
note substantial differences. The middle components of the two marks, -IF- in the
case of opposers and -ALYT- in the case of applicant, are different in all respects
and have a substantial impact on the respective commercial impressions created by
the marks. In opposers’ mark, the letters -IF- combine with the letters before and
after them to powerfully suggest the word “purification,” inasmuch as the mark and
the word share the seven sequential letters PURIFIC- in common. This
combination of letters might also call to mind the common word “terrific” in the
minds of customers. By contrast, in applicant’s mark the combination of PUR- with

27 Opposers’ brief at 14-16.
28 Id. at 16-17.
29 Id. at 17; see Butters 10:21-11:11.
Opposition No. 91194706
18

-ALYT- results in a seemingly arbitrary string of letters, not suggestive of any
common word. Instead, -ALYT- combines with the letters following it, -ICS, to
strongly suggest well known words such as “catalytic” and “analytic.” In this
regard, it differs pointedly from opposers’ mark. Despite opposers’ contention that
they too selected their mark in order to suggest the “photocatalytic” process that is a
feature of the goods, it is unlikely that customers would derive such an impression
from the letters -ICS alone or from opposers’ mark as a whole. Thus, while the
impression of “catalytic” is present in applicant’s mark, it is absent from opposers’
mark.
In considering the common elements of the marks, we find that the element
PUR- is only weakly distinctive with respect to goods and services that relate to a
purification process. Where the common elements of conflicting marks are
suggestive of the goods or services at issue, the likelihood of confusion is reduced.
See, e.g., Keebler Co. v. Murray Bakery Products, 866 F.2d 1386, 9 USPQ2d 1736
(Fed. Cir. 1989) (PECAN SANDIES and PECAN SHORTEES); Magnaflux Corp. v.
Sonoflux Corp., 231 F.2d 669, 109 USPQ 313 (CCPA 1956) (MAGNAFLUX and
SONOFLUX); and Land-O-Nod Co. v. Paulison, 220 USPQ 61 (TTAB 1983)
(CHIROPRACTIC and CHIRO-MATIC). In addition, the shared –ICS component
of the two marks is an extremely common suffix that is found in many commonplace
words of diverse meaning (e.g., politics, mathematics, aerobics, economics). We find
that this shared component of the two marks is not likely to suggest to customers
that the goods and services of the parties emanate from a common source.
Opposition No. 91194706
19

In sum, we find that the two marks at issue are different from each other
with respect to the relevant considerations of appearance, sound, meaning or
connotation, and overall commercial impression. This du Pont factor weighs
against a finding of likelihood of confusion.
D. Absence of actual confusion.
We note applicant’s argument that there has been no actual confusion
involving the parties’ marks, despite co-existence in the marketplace since 2009.30
Indeed, the absence of confusion has been proven by admission.31 While evidence of
actual confusion is highly probative, its absence is not, unless it is accompanied by
evidence demonstrating that, in light of the parties’ actual business activities,
confusion, if likely, would have occurred. No such evidence is before us. Therefore,
we find the lack of evidence of actual confusion to be a neutral factor in our analysis
of likelihood of confusion.
E. Relative fame of the marks.
Opposers argue that their mark is more famous than applicant’s mark; that
opposers have generated more sales of their goods and services under the
PURIFICS mark than has applicant under the PURALYTICS mark; that opposers
have “outspent” applicant in terms of promotion of their goods; and that opposers’
mark has been in the market much longer than applicant’s mark.32 Opposers have

30 Applicant’s brief at 34-35.
31 Opposers’ response to request for admission No. 1; opposers’ response to interrogatory No.
3.
32 Opposers’ brief at 17-18.
Opposition No. 91194706
20

not made any substantial evidentiary showing of the fame, or even commercial
strength, of their mark and, accordingly, this factor is neutral in our analysis.
VIII. Conclusion.
We have considered all of the evidence of record and all arguments of the
parties relevant to the issues before us, including those not specifically discussed
herein. Considering all of the du Pont factors, we find the dissimilarity of the
marks to be dispositive of this case. While applicant’s goods are legally identical to
opposers’, we find that applicant’s mark is not likely to give rise to confusion,
mistake or deception as to the source of applicant’s goods. See Kellogg Co. v.
Pack’em Enterprises Inc., 951 F.2d 330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991)
(“We know of no reason why, in a particular case, a single du Pont factor may not be
dispositive.”)
Decision: The opposition is dismissed.