Conmed Corporation

Trademark Trial and Appeal Board

Mar 2, 2021

88355889 (T.T.A.B. Mar. 2, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: March 2, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Conmed Corporation
_____

Serial No. 88355889
_____

Erin S. Phillips of Bond Schoeneck & King, PLLC,
for Conmed Corporation.
Melissa Sturman, Trademark Examining Attorney, Law Office 125,
Heather Biddulph, Managing Attorney.
_____

Before Wellington, Adlin, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
Conmed Corporation (“Applicant”) seeks registration on the Principal Register of
the standard character mark MIMIX for “medical cutting devices, namely,
arthroscopic shavers and burs for small joints” in International Class 10.1
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied

1 Application Serial No. 88355889 was filed on March 25, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
Serial No. 88355889
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to the arthroscopic shavers and burs identified in the application, so resembles the
typed mark2 MIMIX for “bone implants, namely, bone replacement material
composed of a synthetic powder which is mixed with a solution to form a paste, used
for the surgical correction of cranial defects” in International Class 10,3 on the
Principal Register as to be likely to cause confusion, to cause mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Applicable Law
Our determination of the issue of likelihood of confusion is based on an analysis
of all 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)
(“DuPont”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). We consider each DuPont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). When analyzing these factors, the overriding concern is not only
to prevent buyer confusion as to the source of the goods, but also to protect the
registrant from adverse commercial impact due to use of a similar mark by a

2 Prior to November 2, 2003, “standard character” marks were known as “typed” marks; they
are legal equivalents. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir.
2012); In re Country Oven, Inc., 2019 USPQ2d 443903, *2 n.2 (TTAB 2019).
3 Registration No. 2931570, issued March 8, 2005; renewed.
Serial No. 88355889
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newcomer. In re Country Oven, 2019 USPQ2d 443903 at *2-3 (citing In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993)).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”).
A. The similarity of the marks
Beginning with the first DuPont factor, the Examining Attorney argues that
Applicant’s standard character mark MIMIX and Registrant’s typed mark MIMIX
are identical in appearance, sound, and connotation, and commercial impression.4 See
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (the first DuPont likelihood of confusion
factor involves an analysis of the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation, and commercial impression).
Applicant does not dispute this,5 and obviously the marks are exactly the same. There
is no evidence that consumers would perceive MIMIX as having a different meaning

4 9 TTABVUE 4.
5 Indeed, Applicant presents no argument regarding the first factor in its brief; and, while
discussing the second factor, Applicant argues that “[e]ven where the marks are identical, if
the goods . . . are not related . . . confusion is not likely.” 7 TTABVUE 9.
Citations to the briefs in the appeal record refer to the Board’s TTABVUE docket system.
Citations to the prosecution file refer to the downloadable .pdf version of the TSDR record.
Serial No. 88355889
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or commercial impression in the context of arthroscopic shavers and burs for small
joints than in the context of bone replacement material. For both goods, it evokes
mimicry or close imitation and resemblance. Indeed, Applicant’s own “resection
blades are specifically tailored to mimic small joint anatomy,”6 while bone
replacement material is designed to mimic the body’s natural bone repair process.7
“Because the marks are identical, we conclude that they are likely to engender the
same overall commercial impression. Accordingly, the identity between the marks is
a [DuPont] factor that weighs heavily in favor of a finding of likelihood of confusion.”
In re i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015), aff’d 866 F.3d 1315,
123 USPQ2d 1744 (Fed. Cir. 2017).
B. Similarity or dissimilarity of the goods and trade channels
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods,” and the third DuPont factor concerns “[t]he similarity or dissimilarity of
established, likely-to-continue trade channels.” Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 (Fed. Cir. 2014) (quoting
DuPont, 177 USPQ at 567). We make our determination under these factors based on
the goods as they are identified in the application and the cited registration. In re Ox
Paperboard, 2020 USPQ2d 10878, *5 (TTAB 2020) (citing In re Detroit Athletic Co.,

6 July 23, 2020 Reconsideration Denial TSDR 28 (conmed.com). See also, e.g., June 10, 2019
Office Action TSDR 14 (depuysynthes.com) discussing design and features of arthroscopic
resection tools.
7 See, e.g., June 10, 2019 Office Action TSDR 16 (arthrex.com) discussing bone graft
osteoinductive and oteoconductive potential; July 23, 2020 Reconsideration Denial TSDR 6-
7 (ncbi.nlm.nig.gov) discussing mechanism, types, and incorporation of bone grafts; and
TSDR 27 (conmed.com) discussing osteoinductive potential.
Serial No. 88355889
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903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom
Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed.
Cir. 1990)).
We must determine whether the degree of relatedness of the goods rises to such a
level that consumers would mistakenly believe the respective goods emanate from
the same source. In considering the second DuPont factor, we especially note that
where identical marks are involved, as is the case here, the degree of similarity
between the goods that is required to support a finding of likelihood of confusion
declines. In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993)
(“even when the goods or services are not competitive or intrinsically related, the use
of identical marks can lead to the assumption that there is a common source”). With
identical marks it is only necessary that there be a “viable relationship between the
goods” to support a finding of likelihood of confusion. In re Thor Tech Inc., 90 USPQ2d
1634, 1636 (TTAB 2009) (“it is sufficient that the goods are related in some manner,
or that the circumstances surrounding their marketing are such, that they would be
encountered by the same persons in situations that would give rise, because of the
marks, to a mistaken belief that they originate from the same source or that there is
an association or connection between the sources of the goods.”). There is no per se
rule that certain goods are related. Lloyd’s Food Prod., Inc. v. Eli’s, Inc., 987 F.2d 766,
25 USPQ2d 2027 (Fed. Cir. 1993).8

8 Conversely, there is no per se rule that certain goods are not related. While we have
considered the non-precedential Board decision In re TriVascular, Inc. (Serial No. 77941535,
Serial No. 88355889
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As noted above, Applicant’s goods are “medical cutting devices, namely,
arthroscopic shavers and burs for small joints;” and Registrant’s goods are identified
as “bone implants, namely, bone replacement material composed of a synthetic
powder which is mixed with a solution to form a paste, used for the surgical correction
of cranial defects.”
To better understand the anatomical limitations in the identifications of goods, we
note that the “cranium” is “[t]he skull” and “[t]he portion of the skull enclosing the
brain; the braincase;” and a “joint” is “[a] point of articulation between two or more
bones, especially such a connection that allows motion.” It is also helpful to note that
“maxillofacial” means “[r]elating to or involving the maxilla and the face,” where the
“maxilla” is “[e]ither of a pair of bones of the human skull fusing in the midline and
forming the upper jaw.”9 “Arthroscopy” is “[a] surgical procedure in which an

November 27, 2012) cited in Applicant’s brief for whatever guidance it may offer, it does not
involve the same goods or evidence present here, and does not warrant a general discussion.
We do note, however, that unlike in the present case, the applicant in TriVascular introduced
a declaration from a consultant with experience as in-house counsel to several medical device
companies and as counselor to medical and healthcare companies regarding the development,
manufacture, and marketing of medical devices; information regarding the medical
procedures in which its goods are used; technical marketing materials relating to its goods;
as well as information regarding types of orthopedic surgery. We cannot rely on evidence
from another proceeding. It is well settled that each case must be decided on its own facts,
based on the particular mark, the particular goods or services, and the particular record in
each application. See, e.g., Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386,
387 (CCPA 1973) (“Each case must be decided on its own facts and the differences are often
subtle ones.”); In re Jacques Bernier Inc., 1 USPQ2d 1924, 1925 (TTAB 1987) (“Each case
must be resolved on its own facts.”).
9 THE AMERICAN HERITAGE DICTIONARY (ahdictionary.com, accessed February 21, 2021). The
Board may take judicial notice of dictionary definitions, including online dictionaries that
exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014),
aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128
USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB
2006).
Serial No. 88355889
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arthroscope is passed to the interior of a joint through a small incision for the purpose
of visual examination, diagnosis, or treatment.”10
To show that “the same entity commonly provides the relevant goods and markets
the goods under the same mark,” the Examining Attorney introduced Internet
evidence showing that Applicant, Registrant, and at least five third-party medical
products companies offer bone regeneratives and shavers or burs.11 This type of
evidence is probative because it demonstrates that the involved goods may emanate
from a common source under the same mark and consumers will encounter these
goods in the same trade channels. See e.g., In re Detroit Ath. Co., 128 USPQ2d at 1047
(crediting relatedness evidence that third parties use the same mark for the goods
and services at issue because “[t]his evidence suggests that consumers are
accustomed to seeing a single mark associated with a source that sells both”); On-line
Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir.
2000); In re Iolo Tech., LLC, 95 USPQ2d 1498, 1500-01 (TTAB 2010) (“The examining
attorney also submitted evidence from several websites to show that various types of
optimization software such as identified by applicant and technical support services
such as identified by the cited registration are advertised to consumers under the
same mark.”); In re G.B.I. Tile and Stone, Inc., 92 USPQ2d 1366, 1371 (TTAB 2009)

10 THE AMERICAN HERITAGE DICTIONARY, July 23, 2020 Reconsideration Denial TSDR 15.
11 9 TTABVUE 5-6 (citing Internet evidence from Stryker, DePuy Synthes, and Arthrex
attached to the June 10, 2019 Office Action; and Nobel Biocare and OsseoLink attached to
the January 2, 2020 Final Office Action). See also January 2, 2020 Final Office Action TSDR
11-12 (shopzimmerbiometdental.com); and July 23, 2020 Reconsideration Denial TSDR 22
(traumapro.cz), 23 (zimmerbiomet.com), and 27 (conmed.com).
Serial No. 88355889
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(holding the goods, while different and not interchangeable, are related because the
evidence, including Internet excerpts showing third parties using the same marks for
both sets of products, clearly demonstrates that there are entities that are the source
of both sets of products).
While Applicant’s identification limits the use of its burs to arthroscopic use on
small joints, the evidence indicates that burs, in general, are used in cranial surgery.
For example, both Stryker’s injectable bone substitute and Registrant’s bone
substitute material are intended for use with cranial cuts and defects, and specifically
in the “repair of neurosurgical burr holes” in the cranium.12 The evidence is probative
to demonstrate that bone replacement material and surgical burs, generally, are
complementary goods: bone replacement material is used to repair surgical bur holes.
See, e.g., In re Cook Med. Techns., LLC, 105 USPQ2d 1377, 1380 (“If goods are
complementary in nature, or used together, this relatedness can support a finding of
likelihood of confusion.”) (citing In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d
1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984)). Accord In re Toshiba Med. Sys. Corp.,
91 USPQ2d 1266, 1272 (TTAB 2009) (holding medical MRI diagnostic apparatus and
medical ultrasound devices to be related, based in part on the fact that such goods
have complementary purposes because they may be used by the same medical
personnel on the same patients to treat the same disease). Applicant argues that
“[w]hen considering the similarity of goods in the ‘medical field,’ one must look at the

12 June 10, 2019 Office Action TSDR 6 (stryker.com); July 23, 2020 Reconsideration Denial
TSDR 23 (zimmerbiomet.com).
Serial No. 88355889
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specific medical field of use and overlapping use of the goods,”13 and points out that
its goods are “specialized surgical instruments for arthroscopic surgical procedures”
while “Registrant’s goods include only compositions for cranial defect repairs;”
therefore, Applicant argues, the respective goods are in unrelated medical fields.14
Applicant also argues that some of the evidence shows the respective goods under
different divisions or categories of the web sites.15 However, the record does not reflect
that the companies sell a wide variety of products in wildly varying fields so as to
diminish the relevance of the same entities offering bone regeneratives and shavers
or burs. In fact, the evidence adduced by the Examining Attorney is quite focused and
shows only a few products offered by these companies. The mere fact that the goods
may be available on different pages of the same websites does not diminish their
relatedness.
It is true, for example, that Stryker’s bone graft material is for craniomaxillofacial
procedures, while its arthroscopic burs are for orthopedic sports medicine; and DePuy
Synthes’ bone matrix is for oral/maxillofacial procedures, while its shaver blades and
burs are for use with rotator cuff, shoulder, and knee repair.16 It nonetheless remains
that Registrant, Applicant, and each third party is a common source of bone
regeneratives and arthroscopic shavers or burs. Indeed, the technical sheet for
Registrant’s own shaver blades and burs states that its “different blade designs offer

13 7 TTABVUE 10, 13.
14 7 TTABVUE 12.
15 7 TTABVUE 7.
16 June 10, 2019 Office Action TSDR 8, 11 (stryker.com), 12-13 (depuysynthes.com).
Serial No. 88355889
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versatile solutions for a variety or arthroscopy needs” including “70 mm long blades
for small joint surgeries.”17 We find this evidence probative to show that Registrant’s
and Applicant’s goods emanate from multiple common sources (i.e., medical product
companies) under the same mark and that consumers will encounter these goods in
the same channels of trade. Applicant provides no support for its speculative
argument that consumers would not believe that the goods emanate from a common
source simply because they may be located in different sections of the same website.
In an effort specifically to link the cranial and small-joint areas of focus, the
Examining Attorney submitted articles stating that craniomaxillofacial surgery may
include work on the temporomandibular joint (TMJ) connecting the lower jawbone
and skull,18 and information that “TMJ arthroscopy” may be used to diagnose TMJ
disorders and “arthroscopic surgery can be as effective for treating various types of
TMJ disorders as open-joint surgery.”19 The evidence in probative to demonstrate
that craniomaxillofacial defects may include TMJ disorders.
Applicant continues its argument that “evidence of one company selling multiple
products does not necessarily mean that the products are similar enough that a
consumer would be confused as to the source of those products.”20 Naturally,

17 July 23, 2020 Reconsideration Denial TSDR 22 (traumapro.cz). Although Applicant
attempted to show that Registrant’s burs are limited to dental use, See July 2, 2020 Request
for Reconsideration TSDR 11-18, the Examining Attorney’s evidence shows Registrant’s
shaving blades are for small joint and arthroscopic use.
18 July 23, 2020 Reconsideration Denial TSDR 5 “Bone Grafts in Craniofacial Surgery”
(ncbi.nlm.nih.gov). See also THE AMERICAN HERITAGE DICTIONARY (ahdictionary.com,
accessed February 21, 2021) (formed by the temporal bone and the mandible).
19 July 23, 2020 Reconsideration Denial TSDR 16, 18 (mayoclinic.org).
20 7 TTABVUE 12-13.
Serial No. 88355889
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consumers will be able to distinguish Applicant’s goods from the goods in the cited
registration; however, that is not the standard. See, e.g., Hydra Mac, Inc. v. Mack
Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975) (“[T]he confusion found to
be likely is not as to the products but as to their source.”) (citation omitted). The test
is not whether consumers would be likely to confuse the goods themselves, but rather
whether they likely would be confused as to their source. In re Anderson, 101 USPQ2d
1912, 1919 (TTAB 2012). In this case, the evidence demonstrates that consumers are
accustomed to encountering both Applicant’s goods and the goods in the cited
registration provided, often under the same marks, by the same sources.
As noted above, the Examining Attorney introduced evidence that the goods
offered under the involved mark and cited mark are offered on the same medical
product company websites. This evidence supports a finding that these goods are
offered in at least one common channel of trade, that is, the websites operated by
these medical products companies. Applicant argues that the trade channels are
different because it relies on sales representatives to make sales “solely and
exclusively to arthroscopic practitioners who specialize in arthroscopic surgical
procedures and . . . to hospital accounts wherein arthroscopic surgical procedures are
performed,” while it presumes “that Registrant has its own sales representatives that
do the same” for Registrant’s goods to dentists and periodontists, “as it is the standard
method of sales for surgical devices” that “representatives visit consumers to
showcase each device and demonstrate how to use it.”21 While there is no evidence for

21 7 TTABVUE 14-15.
Serial No. 88355889
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these assertions and presumptions,22 even if taken as true they would demonstrate
that there is at least one other common channel of trade: in person sales
representatives.
Because there are no limitations as to channels of trade in the identifications of
goods in the application or the cited registration, we must presume that the identified
goods move in all channels of trade normal for such goods. See In re i.am.symbolic,
123 USPQ2d at 1750; Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1261 (Fed. Cir. 2011). It is the identifications of goods that control,
not what unsupported argument or extrinsic evidence may show about the specific
nature of the goods as provided in the marketplace. Stone Lion, 110 USPQ2d at 1162;
In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1165 (TTAB 2013).
Inasmuch as the goods emanate from multiple common sources under the same
mark and consumers will encounter the goods in at least two overlapping channels of
trade, we find that the second and third DuPont factors, regarding the similarity or
dissimilarity of the goods and trade channels, favor a finding of likelihood of
confusion.

22 “Attorney argument is no substitute for evidence.” Enzo Biochem, Inc. v. Gen-Probe Inc.,
424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005). See also Martahus v. Video
Duplication Servs. Inc., 3 F.3d 417, 27 USPQ2d 1846, 1849 (Fed. Cir. 1993) (“mere attorney
arguments unsubstantiated by record evidence are suspect at best”). It is preferable for an
applicant to submit information of this nature by means of sworn testimony. See In re U.S.
Tsubaki, Inc., 109 USPQ2d 2002, 2006-07 (TTAB 2014) (it is critical that Examining
Attorneys be provided with detailed information with sufficient evidentiary support).
Serial No. 88355889
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C. Conditions under which and buyers to whom sales are made
The fourth DuPont factor concerns “[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. A critical question in the analysis under Section 2(d) is whose
confusion should trigger a refusal of registration. Elec. Design & Sales, Inc. v. Elec.
Data Sys. Corp., 954 F.2d 713, 21 USPQ2d 1388, 1391 (Fed. Cir. 1992); Edwards
Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1412 (TTAB 2010). Applicant
argues that the relevant customers for the goods are two separate and distinct classes
of medical specialist – arthroscopic surgeons and dental or periodontic surgeons –
who have little to no exposure to the products of interest to the other.23 Because there
is no such limitation in the identification of goods for the registration, we do not limit
the customers of Registrant’s bone replacement material only to dentists and
periodontists; rather, we must consider all cranial surgeons. In any event, the
Examining Attorney demonstrated that at least one cranial joint, the TMJ, may be
diagnosed and treated with arthroscopic surgery.24 We cannot limit the consumers of
TMJ-related medical products to dentists and periodontists, as Applicant suggests,
because the evidence repeatedly indicates that a “doctor or dentist” may be involved
(emphasis added), a patient “may be referred to a doctor who specializes in TMJ
disorders,”25 and defects in TMJ function are craniomaxillofacial in nature.26

23 7 TTABVUE 16.
24 July 23, 2020 Reconsideration Denial TSDR 16-21 (mayoclinic.org).
25 July 23, 2020 Reconsideration Denial TSDR 20 (mayoclinic.org).
26 July 23, 2020 Reconsideration Denial TSDR 5 (ncbi.nlm.nih.gov).
Serial No. 88355889
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Applicant posits that it is typical for surgeons to focus their practice on one area
and never practice in another distinct, specialized field.27 This assertion appears to
be supported by some of the medical supply company web sites which allow medical
professionals to “Browse by Specialty” such as “Shoulder,” “Knee,” “Hand & Wrist, or
“Hip.”28 Considering the specialized nature of the goods in the appeal before us, we
expect that any reasonable decision to purchase goods of Applicant or Registrant
would in all likelihood involve the advice of a person having specialized expertise in
small joint orthopedics or cranial surgery, as appropriate, even if the formalities of
purchase are ultimately undertaken by a business administrator or purchasing
agent. A decision made without consideration of the technical needs and preferences
of the surgeons who will ultimately use the products would not, in our view, be a
reasonable one. Even a wholesaler would need to consider the needs and preferences
of the ultimate users in order to make a rational purchasing decision. Accordingly,
we find the “relevant persons” in the present case are the small joint orthopedic
specialists and cranial surgeons who would actually use the goods.
Applicant also argues that “[u]nlike consumers of other goods and services who
make quick purchases at a cash register, Applicant’s and Registrant’s consumers
make careful and deliberate choices for instruments to use on their patients . . . .”29
The Examining Attorney argues that even sophisticated and discriminating

27 7 TTABVUE 15.
28 June 10, 2019 Office Action TSDR 13 (depuysynthes.com), 18 (arthrex.com).
29 7 TTABVUE 17.
Serial No. 88355889
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consumers are not immune from source confusion, especially where the goods are
used on identical marks.30 Neither Applicant nor the Examining Attorney introduced
evidence about the cost of the goods, but based on the identification of goods in the
application and cited registration, one would expect that all of the purchasers would
exercise an increased degree of care when making their purchasing decision. Nothing
in the record is to the contrary.
While small joint orthopedic specialists and cranial surgeons are two separate
classes of likely highly informed, careful, and sophisticated purchasers whose
selection of the goods would be based on different factors of critical and clinical
importance, Applicant did not include evidence as to the sophistication of hospital
account purchasers. Nonetheless, as stated above, given the nature of the goods we
find it reasonable that such purchasing would involve the advice of a person having
specialized expertise in small joint orthopedics or cranial surgery. Thus, the fourth
factor weighs against a finding of likelihood of confusion.
D. Conclusion on likelihood of confusion
The marks are identical, and the goods have been shown to commonly emanate
from a single source and travel in the same trade channels; however, the goods are
sold to separate classes of sophisticated consumers. Although the purchasers may buy
with care and sophistication, such care is, on balance, outweighed by the use of
identical marks for related goods which travel in some of the same channels of trade.

30 9 TTABVUE 9.
Serial No. 88355889
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See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986);
Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ
110, 112 (CCPA 1970); see also, HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d
1819 (TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990)
(similarities of goods and marks outweighed sophisticated purchasers, careful
purchasing decision, and expensive goods). Weighing the DuPont factors, we find that
confusion is likely.
II. Decision
The refusal to register Applicant’s mark MIMIX is affirmed.