Crystal Clinic Holdings, Inc.v.Crystal Genetics, Inc.

Trademark Trial and Appeal Board

Jan 21, 2022

91255326 (T.T.A.B. Jan. 21, 2022)

Mailed: January 21, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Crystal Clinic Holdings, Inc. v. Crystal Genetics, Inc. _____ Opposition No. 91255326 _____ Suzanne Bretz Blum and Jarman J. Smith of Brouse McDowell LPA for Crystal Clinic Holdings, Inc. Crystal Genetics, Inc., pro se. _____ Before Cataldo, Wellington, and Larkin, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: Crystal Genetics, Inc. (Applicant) seeks registration on the Principal Register of the standard character mark CRYSTAL GENETICS (with a disclaimer of GENETICS) for “genetic testing for medical purposes; providing cancer screening services,” in International Class 44.1 1 Serial Nos. 88662757, filed October 21, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s assertion of a bona fide intent to use the mark in commerce. This Opinion Is Not a Precedent of the TTAB Precedent of the TTAB PrePrecedent of the TTAB Opposition No. 91255326 - 2 - Crystal Clinic Holdings, Inc. (Opposer) opposes registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of priority and likelihood of confusion. Specifically, Opposer alleges prior common law use of the mark CRYSTAL CLINIC in connection with providing orthopedic surgery services, including medical and healthcare services that often accompany diagnosis and treatment of orthopedic conditions, and that Applicant’s proposed mark “so resembles Opposer's previously used CRYSTAL CLINIC mark that it is likely, when used in connection with Applicant’s services, to cause confusion, mistake, or deception with consequent injury to Opposer and the public.”2 Opposer also pleads ownership of application Serial No. 88705061, for the mark CRYSTAL CLINIC in standard characters, for “medical and health care services, namely, orthopaedic surgery and other treatments for the musculoskeletal system,” in International Class 44.3 Opposer alleges that “[a]s further evidence of damage to Opposer and the likelihood of confusion if Applicant’s mark is allowed to be registered, Opposer was informed by way of an Office Action that its application to register CRYSTAL CLINIC may be refused registration under Trademark Act Section 2(d) because of a likelihood of confusion between CRYSTAL CLINIC and the Applicant’s mark.”4 2 1 TTABVUE 6 (Notice of Opposition ¶ 13). 3 Id. at 4, ¶ 3. 4 Id. at 7, ¶ 16. Opposition No. 91255326 - 3 - Applicant, in its Answer, denied the salient allegations in the Notice of Opposition.5 The parties have fully briefed this opposition proceeding, including a reply brief from Opposer.6 I. The Record The record includes the pleadings and, by operation of Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the file of Applicant’s application. The parties introduced the testimony and evidence listed below: A. Opposer’s Testimony and Evidence 1. Testimony declaration, with exhibit, of Dr. Thomas J. Reilly, an orthopedic hand surgeon employed by a wholly-owned affiliate of Opposer since 1988;7 2. Notice of reliance (confidential and redacted copies) on some of Applicant’s discovery responses and Applicant’s initial disclosures;8 3. Notice of reliance on printed publications;9 5 Applicant also pleaded purported affirmative defenses, including failure to set forth facts sufficient to entitle Opposer to the relief sought, and estoppel, laches, and waiver. To the extent any of these affirmative defenses were even viable, they are waived because they were not argued by Opposer in its trial brief. Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) (defense not argued in brief deemed waived), aff’d, 565 F. App’x 900 (Fed. Cir. 2014) (mem.). See also TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1100-01 (TTAB 2018) (affirmative defenses waived because not pursued at trial or argued in brief). 6 26, 31 TTABVUE (Opposer’s confidential and redacted copies of its main brief); 27-28 TTABVUE (Applicant’s confidential and redacted copies of its main brief); and 29 TTABVUE (Opposer’s reply brief). 7 8 TTABVUE (a duplicate copy was also submitted at 15 TTABVUE). 8 9-10 TTABVUE (confidential copy) and 11 TTABVUE (redacted public copy). 9 12 TTABVUE. Opposition No. 91255326 - 4 - 4. Notice of reliance on copies of Opposer’s pleaded application and related USPTO office actions;10 5. Testimony declaration of Dr. David Kay, an orthopedic surgeon employed by a wholly-owned affiliate of Opposer since 1999;11 6. Testimony declaration of Jeff Salamon, President of Lumis, a marketing company that has provided services to Opposer since 2017;12 and 7. (Rebuttal) Notice of reliance on a printouts from the USPTO electronic database for accepted identifications of goods and services, and printouts from third-party websites.13 B. Applicant’s Testimony and Evidence14 1. Testimony declaration, with exhibits, of Bahram G. Kermani, Applicant’s Founder, President and Chief Executive Officer.15 2. Notice of reliance on printouts from Opposer’s and Applicant’s websites, and other websites;16 and 10 13 TTABVUE. 11 14 TTABVUE. 12 16 TTABVUE. 13 25 TTABVUE. 14 Applicant filed a notice of reliance on its own responses to Opposer’s interrogatory No. 10 and Opposer’s document requests Nos. 3 and 4. 18 TTABVUE (designated “confidential”) and 22 TTABVUE (redacted copy). However, these materials are inadmissible as evidence because, unless submitted under circumstances inapplicable here, a party may not rely on its own discovery responses. Trademark Rule 2.120(k)(5). We have therefore given them no consideration 15 17 TTABVUE (designated “confidential”) and 21 TTABVUE (redacted copy). We note that many of the materials designated by Applicant as “Confidential” or “For Attorney’s Eyes Only” appear to be publicly available, e.g., Google search result pages, and thus not truly confidential. Board proceedings are designed to be public, and the improper designation of material as confidential thwarts this objective. Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010). “Because of the overdesignation of testimony and evidence . . ., it is not clear to us what is intended to be truly ‘Confidential’ and ‘Confidential Attorney’s Eyes Only.’ Therefore, in rendering our decision, we will not be bound by the . . . designation.” Id. at 1402-1403. 16 19 TTABVUE (designated “confidential”) and 23 TTABVUE (redacted copy). Opposition No. 91255326 - 5 - 3. Notice of reliance on printouts from the USPTO’s TESS electronic database, and websites containing records from databases for the states of Arizona, Minnesota, and Florida.17 II. Entitlement to a Statutory Cause of Action Entitlement to a statutory cause of action, formerly referred to as “standing” by the Federal Circuit and the Board, is an element of the plaintiff’s case in every inter partes proceeding.18 See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d 11277 (Fed. Cir. 2020), cert. denied, ___ S. Ct. ___ (2021); Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 (Fed. Cir. 2020), reh’g en banc denied, 981 F.3d 1083, 2020 USPQ2d 11438 (Fed. Cir. 2020), petition for cert. filed; Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). To establish entitlement to a statutory cause of action, a plaintiff must demonstrate: (i) an interest falling within the zone of interests protected by the statute and (ii) a reasonable belief in damage proximately caused by the registration of the mark. Corcamore, 2020 USPQ2d 11277, at *4. See also Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982). Based on Opposer’s pleaded application for the mark CRYSTAL CLINIC which has been made of record along with USPTO office actions showing that the mark has 17 20 TTABVUE (designated “confidential”) and 24 TTABVUE (redacted copy). 18 Even though we now refer to standing as entitlement to a statutory cause of action, our prior decisions and those of the Federal Circuit interpreting standing under §§ 1063 and 1064 remain applicable. Opposition No. 91255326 - 6 - been provisionally refused registration based on Applicant’s applied-for mark, we find Opposer has a reasonable belief of damage that is proximately caused by the potential registration of Applicant’s proposed mark. The opposition is therefore within the zone of Opposer’s interests, as protected by the Act. Corcamore, 2020 USPQ2d 11277, at *7-8. See also Australian Therapeutic, 2020 USPQ2d 10837, at *3; ShutEmDown Sports Inc. v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012) (evidence of office action showing that plaintiff’s pending application was refused registration based on defendant’s registration established standing); Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1959 (TTAB 2008) (Opposer’s evidence of the suspension of its pending trademark application based on the applicant’s application established its standing); Lipton Indus., Inc. v. Ralston Purina Co., 213 USPQ 189 (“standing may be established by assert[ing] a likelihood of confusion which is not wholly without merit ... or, as here, a rejection of an application during prosecution”). III. Priority Applicant may rely on its intent-to-use application filing date, October 21, 2019, as its constructive use priority date.19 See Syngenta Crop Prot. Inc. v. Bio-Chek LLC, 90 USPQ2d 1112, 1119 (TTAB 2009) (“applicant may rely without further proof upon the filing date of its application as a ‘constructive use’ date for purposes of priority”); Zirco Corp. v. Am. Telephone and Telegraph Co., 21 USPQ2d 1542, 1544 (TTAB 1991) (“[T]here can be no doubt but that the right to rely upon the constructive use date 19 Applicant’s principal, Mr. Bahram G. Kermani, does not aver in his declaration a date of first use prior to the filing date. Opposition No. 91255326 - 7 - comes into existence with the filing of the intent-to-use application and that an intent-to-use applicant can rely upon this date in an opposition brought by a third party asserting common law rights.”). Opposer, for its part, submitted the testimonial declarations of three individuals, each averring based on their personal knowledge that Opposer has been using the mark CRYSTAL CLINIC to promote Opposer’s medical services since long before Applicant’s constructive use date of October 21, 2019. Specifically, Dr. Thomas J. Reilly testifies that “in 1987 … [he] was involved in the creation and adoption of the Crystal Clinic trademark (‘CRYSTAL CLINIC’) for use by a group of medical professionals joining to provide a variety of orthopedic services to the public” and they began using the mark in 1988 “in connection with the provision, sale, marketing, and promotion of medical healthcare services, namely orthopedic surgery and other treatments for the musculoskeletal system.”20 David Kay avers that he has been employed by Opposer since 1999, has observed consistent and continuous use of the mark CRYSTAL CLINIC since then to “promote the medical services of [Opposer], including orthopedic surgery, general orthopedic treatment, physical medicine and rehabilitation, physical therapy, arthritis care, and physical therapy.”21 In addition, Jeff Salamon testifies that his company, Lumis, has provided marketing services for Opposer since 2017 for its “CRYSTAL CLINIC brand . . . in connection with a range 20 8 TTABVUE 3 (Reilly Dec. ¶¶ 5, 7). 21 14 TTABVUE 2-3 (Kay Dec. ¶ 3). Opposition No. 91255326 - 8 - of high quality medical services.”22 For example, Lumis “oversaw the creation and production of [a] brochure . . . distributed to prospective patients, distributed at events and seminars, and [Opposer’s] locations.”23 The brochure displays the CRYSTAL CLINIC mark and describes Opposer’s medical services.24 Based on the record, including the aforementioned testimony, we find that Opposer has demonstrated that it has used its CRYSTAL CLINIC mark in connection with its medical services, including orthopedic surgery, general orthopedic treatment, physical medicine and rehabilitation, physical therapy, arthritis care, and physical therapy, since long before Applicant’s October 21, 2019 constructive use date. Accordingly, Opposer has priority with respect to its CRYSTAL CLINIC mark and those services vis-à-vis Applicant’s proposed mark, IV. Likelihood of Confusion We base our determination under Section 2(d) on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances. Any single factor may control a particular case.” Stratus Networks, Inc. v. UBTA-UBET 22 16 TTABVUE 2-3 (Salamon Dec. ¶ 3). 23 Id. at 3; ¶ 6. 24 Id. at 17 (Salamon Exhib. B). Opposition No. 91255326 - 9 - Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d 10341, at *3 (Fed. Cir. 2020) (internal citation omitted). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. 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 [or services] and differences in the marks.”). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods [or services].’”) (quoting Herbko Int’l v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). A. Alleged Weakness and Strength of Opposer’s Mark Before comparing the similarity or dissimilarity of the marks, we first consider the degree of strength, or weakness if there is any, of Opposer’s CRYSTAL CLINIC mark. In doing so, we consider both its inherent strength, based on the nature of the mark itself, and its commercial strength, based on the marketplace recognition value of the mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”); Top Tobacco, Opposition No. 91255326 - 10 - L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent strength and its commercial strength). We also point out that proving the strength or weakness of a mark is not “an all- or-nothing measure” in the context of likelihood of confusion. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (Fed. Cir. 2017). Rather, marks may “var[y] along a spectrum from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015) (internal citations omitted). 1. Applicant’s Arguments and Evidence Applicant makes vague assertions regarding third-party marks that we construe as arguments of weakness as to the term CRYSTAL in Opposer’s mark. Specifically, Applicant contends that “there appears to be many registered or tabulated marks on Trademark Electronic Search System (TESS) that resemble the [Opposer’s] Mark (Crystal Clinic), much more so than the Applicant’s Mark is claimed to (by Opposer).”25 However, whatever materials that Applicant refers to in support of this statement are not of record.26 Applicant also refers to three “names [of companies that] have a great resemblance to the Opposer’s Mark” and “show the extent to which Opposer has, or does not have, a right to exclude others from use of its mark on its identified services 25 28 TTABVUE 9. Citation to evidence omitted. 26 See Note 14. Opposition No. 91255326 - 11 - . . .”27 In support, Applicant provided Internet printouts from state incorporation databases for: (1) a Florida company identified as “Crystal Clinic LLC”; (2) an Arizona company identified as “China & Crystal Clinic International Restorations, LLC”; and (3) a Minnesota company identified as “Crystal Dental Clinic LLC.”28 These materials, however, have no probative value because there is no indication that the names of these businesses are being used as marks or that the services rendered by these companies are related to Opposer’s medical services. Opposer, however, submitted materials that indicate that the Florida company uses “Crystal Clinic” in connection with cosmetic facial care services and the retail sale of cosmetic facial care products; the Arizona company uses “China and Crystal Clinic” in connection with porcelain and crystal repair and restoration; and the Minnesota company uses “Crystal Dental Clinic” in connection with cosmetic and family dentistry services.29 The services rendered by these third parties are unrelated to Opposer’s orthopedic care and other medical services. In sum, Applicant’s assertions regarding weakness of Opposer’s mark, CRYSTAL CLINIC, are not supported by the record. Applicant has not demonstrated any weakness, inherent or commercial, with respect to Opposer’s mark. 27 28 TTABVUE 10. 28 20, 24 TTABVUE. 29 25 TTABVUE (printouts from third-party websites). Opposition No. 91255326 - 12 - 2. Evidence of Strength of Opposer’s Mark Opposer argues that CRYSTAL CLINIC is an “arbitrary mark” and conceptually strong because “the word ‘CRYSTAL,’ . . . has no inherent meaning in the context of providing medical services.”30 Opposer also contends that its CRYSTAL CLINIC mark is commercially “strong” based on its “continuous use” for “over three decades” and that its promotion of the mark has “resulted in widespread recognition.”31 In support, Opposer relies on the testimonial declarations of Drs. Reilly and Kay who attest to their personal knowledge of Opposer’s use of the mark in connection with medical services since 1988 and 1999, respectively.32 Dr. Reilly also testifies that Opposer has “spent substantial time and money promoting our services with the CRYSTAL CLINIC mark on our website, in print advertisements, in television advertisements, and in national scholarly conferences.”33 According to the president of Lumis, a marketing agency working on behalf of Opposer, Opposer has “invested more than $3,000,000 in marketing and advertising its services under the CRYSTAL CLINIC mark . . . [i]n the past two years alone.”34 When Lumis was first retained by Opposer in 2017, it conducted research of the history and presence of Opposer’s mark and concluded the mark is “well-known in the marketplace in connection with high-quality, patient- 30 31 TTABVUE 30. 31 Id. at 28-31. 32 14-15 TTABVUE. 33 15 TTABVUE 3 (Reilly Dec. ¶ 10). 34 16 TTABVUE 4 (Salamon Dec. ¶ 13). Opposition No. 91255326 - 13 - friendly orthopedic services and plastic surgery services.”35 Copies of printouts from Opposer’s website, brochures, and press releases, all advertising Opposer’s mark in connection with its medical services, are of record.36 Opposer touts “its status as a nationally-renowned provider of orthopedic care and its plastic surgery services through its dynamic websites; through advertisements in a variety of publications; through strategic partnerships with community organizations, businesses, and sporting teams; through press releases that are sent to national media and are available on the CRYSTAL CLINIC website; through work of its doctors presented in national scholarly journals and national conferences; and through television advertisements . . . during high-viewing programming, including an NFL game.”37 We agree with Opposer that the dominant word CRYSTAL in its mark is arbitrary with respect to the medical services for which Opposer’s mark has been used. On this record, and with respect to the commercial strength of Opposer’s CRYSTAL CLINIC mark, we find it placed on the stronger side of the spectrum that spans from very strong to very weak. Joseph Phelps Vineyards, 122 USPQ2d at 1734 (strength of a mark is not “an all-or-nothing measure” in the context of likelihood of confusion, but can vary along a spectrum from very strong to very weak). Opposer’s relatively strong mark is entitled to a broader scope of protection than “the normal scope of protection 35 Id. at 2-4; ¶¶ 3 and 11. 36 Id.; Salamon Exhibs. A-E. 37 Id. at 4-5; ¶ 14. Opposition No. 91255326 - 14 - to which inherently distinctive marks are entitled.” Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1347 (TTAB 2017). B. The Similarity or Dissimilarity of the Marks We now turn to the DuPont likelihood of confusion factor focusing on the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). Here, we find Applicant’s two-word mark, CRYSTAL GENETICS, and Opposer’s two-word mark, CRYSTAL CLINIC, are very similar in their overall appearance, sound, connotation and commercial impression, because the same word appears first and dominates each mark. Viterra, 101 USPQ2d at 1908 (for rational reasons, a common dominant element of marks may be accorded greater weight in the analysis of similarity, provided the ultimate conclusion rests on a consideration of the marks in their entireties); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Because each mark begins with the term CRYSTAL, the marks are aurally and visually similar. CRYSTAL is also more likely to make a strong impression on consumers because “upon encountering each mark, consumers must first notice this identical lead word.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). See also Presto Products Inc. v. Nice- Opposition No. 91255326 - 15 - Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (noting that the first word of a mark is “most likely to be impressed upon the mind of a purchaser and remembered”); In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018). As already discussed, the term CRYSTAL has no significance in connection with the parties’ medical services nor any demonstrated commercial weakness. Although the secondary words in the marks, GENETICS and CLINIC, are points of difference, these terms are generic for Applicant’s and Opposer’s respective services. That is, Applicant’s services include “genetics” testing and Opposer’s services may be described as rendered by an orthopedic care “clinic.” These generic second words thus offer little, if any, assistance for purposes of distinguishing the marks. Indeed, Applicant has disclaimed the term GENETICS, and it is well-settled that generic matter has no source-identifying significance for purposes of likelihood of confusion determinations. See, e. g., Detroit Athletic Co., 128 USPQ2d at 1049 (citing In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)). In sum, CRYSTAL is the dominant term in the parties’ two-word marks, not only because it is the lead word, but also because it is the only term that helps distinguish the source of the parties’ services. We find that the marks are very similar in their entireties in terms of appearance, sound and commercial impression. Opposition No. 91255326 - 16 - C. The Similarity or Dissimilarity and Nature of the Services; Conditions Under Which and Customers to Whom These Services Are Offered We turn now to the second DuPont factor involving the relatedness of the parties’ services. In making our determination, we note at the outset that the greater the degree of similarity between the parties’ marks, the lesser the degree of relatedness between the services that is required to support a finding of likelihood of confusion. See In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). Furthermore, it is not necessary that the services at issue be identical or even competitive, or that they move in the same channels of trade, to support a finding of likelihood of confusion. It is sufficient instead that the respective services be related in some manner, or that the conditions and activities surrounding the marketing of the services are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of the marks, give rise to the mistaken belief that they originate from the same producer. See In re Int’l Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). Again, although the marks are not identical, the only source-identifying dominant element of each mark, the arbitrary word CRYSTAL, is the same, and there is no evidence of third parties using this term in connection with related medical services. The addition of the generic terms CLINIC and GENETICS may be mistakenly understood by consumers as merely identifying an entity type or type of medical service from affiliated medical providers. Opposition No. 91255326 - 17 - Applicant is seeking to register its mark for “genetic testing for medical purposes [and] providing cancer screening services,” and Opposer’s services, for which it has proven prior use of its mark, include orthopedic surgery, general orthopedic treatment, physical medicine and rehabilitation, physical therapy, arthritis care, and physical therapy. In arguing that the parties’ respective services are related, Opposer contends that “[g]enetic testing is utilized by orthopedic practitioners, including [Opposer], to consider a patient’s genetic makeup when prescribing medicine and developing treatment plans.”38 In support, Opposer relies on the testimony of Dr. Kay who avers that:39 While rare, I sometimes send patients for genetic testing and review the results of that testing in determining a treatment plan for the patient. For instance, genetic testing is a helpful tool in confirming the disease and preparing a treatment plan for my patients with hereditary neuro- muscular diseases, such as Muscular Dystrophy or Charcot Marie Tooth disease. Opposer also argues that the parties’ services may be used in connection with the diagnosis and treatment decisions for certain conditions, “including those related to rheumatoid arthritis.”40 Opposer bases this argument on evidence showing that one genetic testing company advertises a test that purportedly “provide[s] an objective and reproducible measure of rheumatoid arthritis (RA) disease activity.”41 38 31 TTABVUE 23. 39 14 TTABVUE 2 (Kay Dec. ¶ 6). 40 31 TTABVUE 23. 41 18 TTABVUE 45-46 (designated “confidential,” but consisting of printouts from the publicly available third-party website www.myriad.com/products). Opposition No. 91255326 - 18 - In addition, Opposer introduced excerpts from third-party websites to help show a relationship between genetic testing and orthopedic care services. For example, Covington Orthopedic (a “sports medicine institute”) offers “specialty testing” that includes “analyz[ing] over 75 genetic markers and provides a personalized, highly detailed report” and “[t]his powerful information and recommendations based on your genetics is designed to assist you in understanding your physiology and enable better achievement of your lifestyle, health, diet, nutrition, and fitness goals.”42 An article, from the website “Becker’s Spinereview,” also touts the importance of genetic testing in connection with orthopedic surgery and pain management (“With [a] genetic test, surgery is a whole different ballgame … Orthopedic surgeons are some of the brightest in the business and many don’t know about genetic testing [but] should consider learning how this works and fit it into their practice.”).43 Other websites discuss the importance of genetic testing in conjunction with the prescription of blood thinners, orthopedic surgery and treatment, such as hip and knee replacement surgery.44 An article from the Intermountain Healthcare website describes a study showing how “Genetic Testing Can Help Determine Safest Dose of Warfarin [a blood thinner] for Joint Surgery Patients.”45 Applicant does not rebut the testimony of Opposer’s witnesses or present evidence that contradicts Opposer’s arguments. Rather, Applicant takes issue with the sources 42 12 TTABVUE 43-46. 43 Id. at 46 (Exhib. G). 44 Id.; (Exhibs. H-I). 45 Id. at 54-59. Opposition No. 91255326 - 19 - of the evidence, and particularly the credibility of the testimony in the Salamon testimonial declaration, arguing that “[t]he fact that Lumis has been in relationship with Opposer, makes such statements/evaluations by Lumis subject to conflict-of- interest.”46 Although not raised as an objection, we point out that the Board is “able to weigh all evidence and testimony appropriately, and we see no need to exclude it outright.” Norris v. PAVE: Promoting Awareness, Victim Empowerment, 2019 USPQ2d 370880, at *1-2 (TTAB 2019); see also Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1737 (TTAB 2014) (“Ultimately, the Board is capable of weighing the relevance and strength or weakness of the objected-to testimony and evidence, including any inherent limitations, and this precludes the need to strike the testimony and evidence.”). We also point out that despite Applicant’s argument that it “has the intention to commercialize genetic testing application(s) including early detection of cancer,”47 we must give Applicant’s identification of “genetic testing for medical purposes” services its full scope of coverage. See S.W. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (where services are broadly identified, they are deemed to encompass all of the services of the nature and type described). That is, we must consider Applicant’s services to include all types of genetic testing for all medical purposes, and not just cancer detection; in other words, Applicant’s recitation of 46 28 TTABVUE 8. 47 Id. at 14. Opposition No. 91255326 - 20 - services must be deemed to include genetic testing for pain management, in connection with orthopedic surgery, detection of arthritic conditions, etc. In sum, although the parties’ services are not the same or overlapping, the evidence demonstrates that a relationship exists between them. Opposer’s orthopedic services, including orthopedic surgery, may involve the need for, or a referral to a provider of, genetic testing for several purposes, such as helping to determine proper pain treatment and the prescription of blood thinners. In that situation, we must assume that patients receiving Opposer’s CRYSTAL CLINIC orthopedic care services may be referred to, or encounter on their own, Applicant’s CRYSTAL GENETICS genetic testing services, and may mistakenly believe that CRYSTAL GENETICS is an affiliate of CRYSTAL CLINIC providing a different suite of medical services. Indeed, at least one entity, Covington Orthopedic, itself provides both orthopedic care and genetic testing. Accordingly, the DuPont factor involving the relatedness of the parties’ services favors a likelihood of confusion. In terms of the parties’ customers and the conditions under which their respective services are offered, we note that the record is devoid of evidence showing that consumers of genetic testing services or orthopedic medical services will necessarily exercise a higher level of care in their selection of providers. We also keep in mind that the applicable standard of care for a likelihood-of-confusion analysis is that of the least sophisticated potential consumer. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014), (precedent requires consumer care for likelihood-of-confusion decision to be based “on Opposition No. 91255326 - 21 - the least sophisticated potential purchasers”). Nevertheless, by virtue of the medical nature of the parties’ services and presumed care that one takes when it comes to their own health, we find that consumers are likely to exercise somewhat more than ordinary care when choosing these services. Thus, this factor slightly favors finding confusion less likely. D. Lack of Instances of Actual Confusion In its brief, Applicant argues:48 [S]ince 2016, there has been more than 5 years, which should have been sufficiently long for the Opposer to perform a systematic study on such “alleged confusion” or the possibility of it, and provide the related evidence to the Board. It is the Applicant’s opinion that, for instance, a “misdirected website access” log could be measured and provided as evidence by the Opposer. By “misdirected website access,” we mean cases where a consumer meant to reach the Opposer’s website, but (as a result of the alleged potential confusion), typed or otherwise reached the Applicant’s website. No such evidence has been supplied by the Opposer. However, as Opposer points out, Applicant seeks registration of its mark based on an allegation of its intention to use the mark in commerce, and Applicant admits that it did not offer genetic testing for medical purposes prior to October 21, 2019.49 We have long and often held that “[t]he absence of any reported instances of confusion is meaningful only if the record indicates appreciable and continuous use by Applicant of its mark for a significant period of time in the same markets as those served by Opposer under its mark.” New Era Cap Co. v. Pro Era LLC, 2020 USPQ2d 48 Id. at 17. 49 31 TTABVUE 31-32, citing 10 TTABVUE 8 (Applicant’s admission to Opposer’s request for admission No. 1). Opposition No. 91255326 - 22 - 10596, *17 (TTAB 2020) (citing Citigroup Inc. v. Capital City Bank Grp., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98 USPQ2d 1253 (Fed. Cir. 2011)). This is particularly the case where there has been a relatively brief period of time during which it was possible for confusion to occur. Accordingly, the lack of instances of actual is irrelevant in our analysis and this factor is neutral. E. Conclusion Because the marks are very similar, Opposer’s mark is relatively strong and entitled to a broader scope of protection than the normal scope of protection to which inherently distinctive marks are entitled, and the services are related, we find that should Applicant’s mark CRYSTAL GENETICS be used in connection with “genetic testing for medical purposes; providing cancer screening services,” it is likely to cause confusion with Opposer’s previously-used mark CRYSTAL CLINIC, an inherently distinctive and strong mark that has been used in connection with medical services, including orthopedic surgery, general orthopedic treatment, physical medicine and rehabilitation, physical therapy, arthritis care, and physical therapy. The presumed increase in purchasing care for these medical services does not outweigh the other DuPont factors. On balance, we find a likelihood of confusion. Decision: We sustain the opposition.