Aspen Medical Products, Inc.

Trademark Trial and Appeal Board

Jan 9, 2015

No. 85778031 (T.T.A.B. Jan. 9, 2015)

Mailed:
January 9, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Aspen Medical Products, Inc.
_____

Serial No. 85778031
_____

Ryan Dean of Fish & Tsang LLP for Aspen Medical Products, Inc.

Kaelie E. Kung, Trademark Examining Attorney, Law Office 103 (Michael
Hamilton, Managing Attorney).
_____

Before Seeherman, Kuhlke, and Wellington, Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Applicant, Aspen Medical Products, Inc., filed an application to register on
the Principal Register the standard character mark HORIZON for goods identified
as “Non-implantable back supports, namely, lower spine braces,” in International
Class 10.1

1 Application Serial No. 85778031, filed on November 13, 2012, based on an allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act,
15 U.S.C. § 1051(b).

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 85778031

2

Registration has been refused under Section 2(d) of the Trademark Act, 15
U.S.C. § 1052(d), on the ground that Applicant’s mark, when used with the
identified goods, so resembles the mark CD HORIZON in typed form2 registered on
the Principal Register for “goods in the medical field, namely plates, screws, rings,
rods, hooks, bolts and other components used in surgical implant procedures
particularly involving the spine, and for application tools and instruments for such
uses” in International Class 10,3 and CD HORIZON BALANC in standard
characters registered on the Principal Register for “surgical and medical apparatus
and instruments for use in spinal surgery,” in International Class 10,4 as to be
likely to cause confusion, mistake or deception. The listed owner for both cited
registrations is Warsaw Orthopedic, Inc.
When the refusal was made final, Applicant appealed and filed a request for
reconsideration. On March 21, 2014, the Examining Attorney denied the request.
Thereafter, Applicant and the Examining Attorney filed briefs. We affirm the
refusal to register.
When the question is likelihood of confusion, we analyze the facts as they
relate to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any likelihood of confusion

2 Prior to November 2, 2003, “standard character” drawings were known as “typed”
drawings.

3 Registration No. 2108361, issued on October 28, 1997, renewed.

4 Registration No. 3995189, issued on July 12, 2011.

Serial No. 85778031

3

analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
SIMILARITY OF THE GOODS/CHANNELS OF TRADE/CONSUMERS
We first consider the goods, channels of trade and classes of consumers. We
must make our determinations under these factors based on the goods as they are
identified in the registration and application. See In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157 (Fed. Cir.
2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002); and Octocom Systems, Inc. v. Houston Computers Services Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Goods need not be identical or
even competitive to find a likelihood of confusion. Recot Inc. v. M.C. Becton, 214
F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). It is sufficient that the goods in
the application and the registration are related in some manner or that the
conditions surrounding their marketing are such that they are likely to be
encountered by the same persons under circumstances that, because of the marks
used in connection therewith, would lead to the mistaken belief that they originate
from the same source. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1722 (Fed. Cir. 2012); On-line Careline Inc. v. Am. Online Inc.,
229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); and In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984).
Serial No. 85778031

4

The Examining Attorney argues that the goods are related and “could be
overlapping.” Ex. Att. Br. p. 9. She asserts that Applicant’s non-implantable lower
spine braces are complementary to registrant’s spinal surgery goods. She submitted
a printout from Applicant’s website and highlights the excerpt where one of
Applicant’s back braces is described as intended for use “throughout the healing
process.” See Office Action, March 18, 2013, TSDR p. 7.5 In addition, she relies on a
printout from registrant’s website showing how its spinal surgical goods are used to
treat disorders of the spine. Id., TSDR pp. 5-6.
In further support of her position, the Examining Attorney submitted several
use-based, third-party registrations for marks registered for the same or similar
types of goods as those of Applicant and registrant. See, e.g., Reg. No. 4049599 for
the mark K SPINE for adjustable braces for correcting an abnormal curvature of
the spine, and spinal implants composed of artificial material; Reg. No. 4006837 for
the mark LUMEN LOCKING for, inter alia, medical braces for limbs and joints;
bone screws, plates, rods, pin, wire loops and rectangles, and cables; orthopedic or
surgical splints, spinal implants made of artificial materials; splints for the spine;
supports for medical use along spine, and supports for spine, supports for medical
use along spine, and supports for spine for medical use. We find this evidence serves
to show the relationship of the goods in question. In re Anderson, 101 USPQ2d
1912, 1919 (TTAB 2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 199 3); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n. 6 (TTAB

5 Citations to “TSDR,” refer to the USPTO’s Trademark Status & Document Retrieval
database available online.
Serial No. 85778031

5

1988). Also persuasive are the various third-party website excerpts showing that
the same medical goods manufacturers offer both types of goods under the same
house mark. See Biomet website offering implantable spine fusion stimulators and
spinal braces (Office Action, September 20, 2013, TSDR p. 44-47); DeRoyal website
offering a variety of spinal braces and surgical implants, including screws (Id.,
TSDR pp. 48-49); and Precision Spine website offering spinal braces and
implantable screws and plates (Id., TSDR pp. 55-59). In addition, the Scarlett
Medical website shows products from Orthofix that include spinal implants and a
spinal-stim device worn on the outside to stimulate bone growth to “treat patients
before, during and after surgical procedures” (Id. TSDR p. 3, 4).
Applicant takes issue with this evidence, explaining that these websites are
for medical equipment suppliers and “those sales do not reach end users – instead
sales reach distributors for later final sale.” App. Br. p. 18. While the end user, or
patient, may not be able to buy the spinal implants on these websites, they are
exposed to the various brands of spinal implants and back braces under the same
brand name. As Applicant describes one website, Biomet, it has two sections, one for
medical professionals and one for patients, but all may view the products. Even if
we exclude the ultimate end user, and restrict the overlap in potential consumers to
medical professionals, the evidence still shows the potential consumers being
exposed to Applicant’s and registrant’s types of goods emanating from the same
source.
Serial No. 85778031

6

We find these goods to be related in view of their complementary nature, in
that back braces may be used to promote healing after spinal surgery, which could
include use of spinal implants, or to prevent the need for spinal surgery. These
types of goods could be used by physicians and other medical personnel in the
treatment of the same patient and they can be purchased by the same facilities.
Thus, we conclude that these goods are related. See In re Toshiba Med. Sys. Corp.,
91 USPQ2d 1266, 1272 (TTAB 2009).
Considering the channels of trade and classes of purchasers, because there
are no limitations as to channels of trade or classes of consumers in the application
or cited registrations, we must presume that Applicant’s and registrant’s goods will
be offered in the ordinary channels of trade for such goods. Octocom Systems, 16
USPQ2d at 1787. As discussed above, the record shows the respective types of goods
are advertised and offered on the same web pages of third-party medical supplier
websites. In view thereof, there is overlap in the trade channels and classes of
consumers, at least as to medical professionals.
In view of the above, the du Pont factors of the similarity of the goods, the
channels of trade and classes of purchasers favor a finding of likelihood of confusion.
With regard to the conditions of sale, Applicant argues that purchasers of
spinal implants are extremely sophisticated and “almost always the final say on
spinal implant purchases will come from spinal surgeons.” App. Br. p. 17. In
addition, Applicant asserts that spinal implants are expensive and “[t]he relevant
consumers are extremely careful in making their selections in light of the grave
Serial No. 85778031

7

risks associated with surgery and the impact of the outcome in the patient’s life
following spinal implant surgery.” Id. Applicant also contends that purchasers of
back braces “are likely to … consult a physician or other professional in selecting
the proper brace for the type of pain or discomfort experienced … [and] [n]either
product is subject to impulse purchasing.” Other than the registrant’s website
describing its product for potential users, there is no direct evidence on the
conditions of sale. However, from the nature of the goods as identified in the
registration (surgical implants) and described in the evidence submitted by
Applicant and the Examining Attorney (the “system consists of rods, hooks and
screws for implantation in the spine … your surgeon can choose the appropriate size
for your condition, anatomy, and activity level,” Office Action, March 18, 2013,
TSDR p. 6), it is clear that the decision to purchase and use registrant’s goods would
require a high level of skill and knowledge. At a minimum, a surgeon would make
the final approval decision if presented with this type of product option by a patient
after seeing it advertised. In addition, because registrant’s goods are limited to
these surgical implants, the relevant overlapping consumers are limited to such
sophisticated consumers. We are less persuaded that the purchase of a back brace
available at any drug store without a prescription would involve a high level of care
beyond verifying it is for the area of the back the purchaser is interested in
assisting. While Applicant’s product may be a more sophisticated type of brace that
could heighten the level of care taken in the purchase, the identification of goods is
not so limited.
Serial No. 85778031

8

In view of the nature of registrant’s goods, we find this factor weighs in favor
of a finding of no likelihood of confusion.
SIMILARITY OF THE MARKS
We next consider the marks HORIZON, and CD HORIZON and CD
HORIZON BALANC, and compare them “in their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005) quoting du Pont, 177 USPQ at 567.
Applicant argues that the differences in sound, appearance, meaning and
commercial impression are sufficient to distinguish the marks, in particular given
the weakness of the common term HORIZON, the addition of the letters CD at the
beginning of each of registrant’s marks and the addition of BALANC, a misspelling
of the word “balance,” at the end of one of the registered marks.
In support of its position that the letters CD create a different meaning and
commercial impression, Applicant submitted an article from the website Medtronic
Eureka discussing the development of registrant’s products by Drs. Yves Cotrel and
Jean Dubousset. See Req. for Recon., February 19, 2014, TSDR pp. 17-18. The
resulting spinal correction system “became known as the CD HORIZON system, CD
standing for Cotrel and Dubousset.”6 App. Br. p. 9. In addition, Applicant submitted

6 We note that this website, although translated into English, is a Greek website,
www.medtroniceureka.com/gr/innovation-articles/inspiration/cdhorizon_gr. However, we
may, where appropriate, consider web pages from a foreign source. In re Remacle, 66
USPQ2d 1222, 1224 n.5 (TTAB 2002) (“[I]t is reasonable to assume that professionals in
medicine, engineering, computers, telecommunications and many other fields are likely to
utilize all available resources, regardless of country of origin or medium.”).
Serial No. 85778031

9

two other articles from the website www.scoliosis.org (dated December 27, 2013)
and THE JOURNAL OF BONE AND JOINT SURGERY (British Editorial Society of
Bone and Joint Surgery 1990) discussing the “Cotrel-Dubousset” system. Id., TSDR
pp. 20-27. In the body of the Request for Reconsideration, Applicant presented a
table with excerpts from papers published by the National Center for Biotechnology
Information discussing the “Cotrel-Dubousset CD” surgical technique or
instrumentation. Applicant contends that “CD is widely recognized among many
health care professionals and researchers as corresponding to ‘Cotrel-Dubousset’.”
App. Br. p. 11. In view of the known meaning of CD in the field of spinal implants
Applicant believes that “the absence of ‘CD’ creates an immediate and significant
dissimilarity in connotation between the applied-for mark and the existing marks.”
App. Br. p. 10.
We find that the additions of the letters CD and the word BALANC are not
sufficient to distinguish the marks in this case. See Crocker Nat’l Bank. v. Canadian
Imperial Bank of Commerce, 228 USPQ 689 (TTAB 1986), aff’d sub nom. Canadian
Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1
USPQ2d 1813 (Fed. Cir. 1987). The first part of registrant’s marks is the lettering
CD which the record shows would have a specific meaning to the medical
professionals purchasing the spinal implants. However, in the context of
registrant’s goods, as the initials of the inventors of the implants, the letters CD
serve a more informative function to indicate the specific type of spinal implant.
The word BALANC is somewhat suggestive of the purpose of the implants, namely,
Serial No. 85778031

10

providing stability to a patient’s spinal column and improving the patient’s balance.
We find that the word HORIZON is the more significant source-identifying element
in registrant’s marks. In view thereof, despite the very specific added connotation to
registrant’s marks from the letters CD and the more general suggestive connotation
from the word BALANC, we find they are not sufficient to obviate a likelihood of
confusion with Applicant’s mark inasmuch as potential purchasers, including
medical professionals, could view Applicant’s simple HORIZON mark as a variant
of registrant’s CD HORIZON and CD HORIZON BALANC marks. Applicant argues
the CD in registrant’s marks signals that the product is related to spinal surgery.
However, the absence of CD in Applicant’s mark could signal this is the non-
surgical product used in conjunction with the CD surgery.
In regard to the common term HORIZON, Applicant argues that it is
“frequently used in commerce by numerous companies in conjunction with goods in
the medical field, and in particular goods falling within International Class 10 [such
that] [t]he common use of the term ‘Horizon’ has created a crowded field of similar
marks where the consuming public will look to other elements to distinguish the
source of the goods or services.” App. Br. p. 11. In support of its position that
HORIZON is weak in this field, Applicant submitted several third-party
registrations.7

7 Applicant’s reference to a “search using Google” has not been considered. Such results
were not made of record and, in any event, search summaries are of limited probative value
inasmuch as there may not be sufficient text to show the context within which a term is
used. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007).
In addition, the third-party applications have no probative value other than as evidence
Serial No. 85778031

11

We begin by noting that third-party registrations are not evidence of “of what
happens in the market place or that customers are familiar with them.” AMF Inc. v.
American Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973).
When considering the sixth du Pont factor, the number and nature of similar marks
in use on similar goods, “[t]he probative value of third-party trademarks depends
entirely upon their usage.” Palm Bay, 73 USPQ2d at 1693. However, third-party
registrations may be relevant to show that a mark or a portion of a mark is
descriptive, suggestive, or so commonly registered as a mark or portion of a mark
that the public will look to other elements to distinguish the source of the goods or
services. In re Hartz Hotel Servs., Inc., 102 USPQ2d 1150, 1153-54 (TTAB 2012).
Used in this limited manner, third-party registrations are similar to dictionaries
showing how language is generally used. Tektronix, Inc. v. Daktronics, Inc., 534
F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976).
While the third-party registrations are in the broad medical field, none of
them is for treating conditions of the spine and as such do not demonstrate that this
term is weak for use in connection with these types of goods or even more generally
in the orthopedic field. See Reg. No. 1826868 for the mark HORIZON for infusion
pump for IV administration of fluids; Reg. No. 2794089 for the mark
BIOHORIZONS for dental implants, dental drills and specialized screw drivers,
dental prosthesis components, and resorbable dental fixation devices; Reg. No.
3080023 for the mark HORIZON for latex, vinyl, and nitrile examination gloves for

that the applications were filed. In re Toshiba Medical Systems Corp., 91 USPQ2d 1266,
1270 n.8 (TTAB 2009); TBMP § 1208.02.
Serial No. 85778031

12

medical use; Reg. No. 3152907 for the mark HORIZON SE for computerized medical
apparatus for monitoring and analyzing patient physiological parameters during
diagnostic and interventional cardiac catheterization procedures; and Reg. No.
3857918 for the mark HORIZON for medical hearing aids and parts thereof.
Response to Office Action (August 14, 2013), TSDR pp. 13-33. After a review of the
third-party registrations, we find that they are not “of any great value to applicant
in seeking to prove that confusion is unlikely between its mark and registrant’s.” In
re Melville Corp., 18 USPQ2d 1386, 1389 (TTAB 1991). Specifically, they do not
serve to narrow the scope of protection to be accorded the word HORIZON as part of
a mark in connection with the goods in issue.
We find that the similarities between the marks in appearance, sound,
meaning and commercial impression outweigh the dissimilarities. In view thereof,
the du Pont factor of the similarity of the marks favors a finding of likelihood of
confusion.
ACTUAL CONFUSION
Finally, Applicant argues that despite co-existence in the marketplace there
has been no actual confusion. We first observe that while a showing of actual
confusion would be highly probative, the lack thereof is not. “The lack of evidence of
actual confusion carries little weight, especially in an ex parte context.” Majestic
Distilling Co., Inc., 65 USPQ2d at 1205 (internal citations omitted)
(“uncorroborated statements of no known instances of actual confusion are of little
evidentiary value”). See also In re Bisset-Berman Corp., 476 F.2d 640, 177 USPQ
Serial No. 85778031

13

528, 529 (CCPA 1973) (stating that self-serving testimony of applicant’s corporate
president’s unawareness of instances of actual confusion was not conclusive that
actual confusion did not exist or that there was no likelihood of confusion). In any
event, the record is devoid of probative evidence relating to whether there have been
meaningful opportunities for actual confusion to have occurred in the marketplace.
See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed.
Cir. 2000); and Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB
1992). Here, there is no evidence of Applicant’s use of this mark in the record and
the application is based on an intention to use the mark in commerce. Without
evidence of use, including the nature of that use to show that there have been
meaningful opportunities for confusion to occur, we can make no findings on this
factor. Accordingly, the du Pont factor of the length of time during and conditions
under which there has been contemporaneous use without evidence of actual
confusion is considered neutral.
EXTENT OF POSSIBLE CONFUSION
Finally, Applicant argues that the extent of any possible confusion is de
minimis in view of the absence of CD from its mark because “back brace consumers
are not looking for spinal implants at all, and would never have an opportunity to
become confused as to the source of a back brace.” App. Br. p. 20. This argument
ignores the overlapping potential purchasers, medical professionals, who may
purchase or recommend the purchase of both items for hospitals and/or for their
patients.
Serial No. 85778031

14

In conclusion, because the marks are similar, the goods are related and there
is some overlap in the channels of trade and consumers, we find that confusion is
likely between Applicant’s mark HORIZON and the marks CD HORIZON and CD
HORIZON BALANC in the cited registrations. Although we recognize the
heightened care in the purchase of registrant’s goods, in view of the evidence that
companies manufacture and sell both types of goods, the sophisticated purchasers
who would recommend and/or purchase these goods will know of this industry
practice, and are likely to assume that both Applicant’s and registrant’s goods, sold
under such similar marks, emanate from the same source.
We acknowledge that the nature of these goods presents a close case;
however, we must resolve doubt in favor of the registrant. Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002).
Decision: The refusal to register based on a likelihood of confusion under
Section 2(d) of the Trademark Act is affirmed.