Labcon, N.A.

Trademark Trial and Appeal BoardApr 26, 2018

No. 87025993 (T.T.A.B. Apr. 26, 2018)

This Opinion is Not a Precedent of the TTAB Mailed: April 26, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Labcon, N. A. _____ Serial No. 87025993 _____ Brian I. Marcus of Vierra Magen Marcus LLP, for Labcon, North America. Julie Watson, Trademark Examining Attorney, Law Office 109, Michael Kazazian, Managing Attorney. _____ Before Taylor, Kuczma, and Larkin, Administrative Trademark Judges. Opinion by Larkin, Administrative Trademark Judge: Labcon, North America (“Applicant”) seeks registration on the Principal Register of the proposed mark ZAP in standard characters for “laboratory equipment, namely, aerosol pipette tips,” in International Class 9.1 The Trademark Examining Attorney 1 Application Serial No. 87025993 was filed on May 5, 2016 under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), on the basis of Applicant’s allegation of a bona fide intention to use the mark in commerce. We take judicial notice that a “pipette” is “a small piece of apparatus which typically consists of a narrow tube in which fluid is drawn by suction (as for dispensing or measurement) and retained by closing the upper end.” MERRIAM- WEBSTER DICTIONARY (merriam-webster.com, accessed on April 19, 2018). Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB Serial No. 87025993 - 2 - has refused registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it so resembles the mark LAB ZAP in standard characters (LAB disclaimed) shown in Registration No. 4286598 for a wide variety of goods in International Class 9, including “laboratory consumables, namely, pipette tips,” “laboratory equipment, namely, pipette racks,” and “pipettes,”2 as to be likely, when used on the goods identified in the application, to cause confusion, to cause mistake, or to deceive. When the Examining Attorney made the refusal final, Applicant appealed and requested reconsideration, 4 TTABVUE, which was denied. 5-7 TTABVUE. Applicant and the Examining Attorney have filed briefs. We affirm the refusal to register. I. Record on Appeal The record on appeal consists of: 1. Pages from the electronic records of the Patent and Trademark Office regarding third-party registrations of composite marks containing the term “LAB” and another element (e.g., LABREACH), and third-party registrations of marks containing the other element in the composite marks (e.g., REACH), made of record by Applicant;3 2006) (the Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed form or regular fixed editions). 2 Registration No. 4286598 issued on February 5, 2013. 3 September 6, 2017 Request for Reconsideration at 2-32. Applicant also attached these pages to its appeal brief. 9 TTABVUE 12-42. We discourage the resubmission on appeal of materials made of record during prosecution, see In re Thor Tech Inc., 85 USPQ2d 1474, 1475 n.3 (TTAB 2007), but will refer in this opinion to the TTABVUE pages on which the materials appear. Serial No. 87025993 - 3 - 2. Pages from the electronic records of the Patent and Trademark Office regarding third-party registrations of marks for both pipette tips, and pipettes and/or pipette racks, made of record by the Examining Attorney,4 and 3. Internet webpages showing the offering for sale, under the same mark, of pipette tips, and pipettes and/or pipette racks, made of record by the Examining Attorney.5 II. Evidentiary Issues Before turning to the substantive issue on appeal, we must address two evidentiary issues. First, Applicant provided an active hyperlink in its appeal brief to the website at thomassci.com in an effort to show that an “aerosol pipette tip is a specific kind of pipette tip.” 9 TTABVUE 7. The Examining Attorney argues that the material accessible through the link should not be considered by the Board because “providing only a web address and/or hyperlink to Internet materials is not sufficient to introduce it into the record.” 11 TTABVUE 7 n.2 (citing In re Powermat Inc., 105 USPQ2d 1789 (TTAB 2013) and In re HSB Solomon Assocs., 102 USPQ2d 1269 (TTAB 2012)). We “have made clear that providing hyperlinks to Internet materials is insufficient to make such materials of record,” Powermat, 105 USPQ2d at 1791, given the transitory nature of Internet websites and the fact that websites referenced only 4 September 19, 2017 Denial of Request for Reconsideration at 2-33. 5 Id. at 34-83. Serial No. 87025993 - 4 - by links may later be modified or deleted. See Safer Inc. v. OMS Invs. Inc., 94 USPQ2d 1031, 1039 (TTAB 2010). We grant the Examining Attorney’s request and have not considered the current versions of the webpages at thomassci.com that are accessible through the hyperlink.6 Second, the Examining Attorney objects to our consideration of Registration No. 4362174 of the mark LABCUT, which is referenced in a table of third-party registrations in Applicant’s brief, 9 TTABVUE 9-10, on the ground that Applicant did not make the registration of record during prosecution. 11 TTABVUE 13 n.4. “To make a third-party registration of record, a copy of the registration . . . should be submitted during prosecution/examination of the application. . . . Mere listings of registrations are not sufficient to make registrations of record.” In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2064 (TTAB 2013). Because Applicant did not make the LABCUT registration of record during prosecution, we sustain the Examining Attorney’s objection to the reference to this registration in the table in Applicant’s brief, and have given it no consideration in our decision. III. Likelihood of Confusion Analysis Section 2(d) of the Trademark Act prohibits the registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C. 6 We note, however, that the Examining Attorney made of record during prosecution “dated captures” of numerous pages from this website. September 19, 2017 Denial of Request for Reconsideration at 34-61. We have considered those pages for whatever probative value they may have. Serial No. 87025993 - 5 - § 1052(d). Our determination of likelihood of confusion under Section 2(d) is based upon an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). We consider each duPont factor that is relevant and for which there is record evidence. See, e.g., M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015). Two key factors in every Section 2(d) case are the similarity of the marks and the similarity of the goods or services, because 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.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). We turn first to the issue of the similarity of the goods, and the related issues of the similarity of the channels of trade and classes of customers. A. Similarity of the Goods, Channels of Trade, and Classes of Customers The second duPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration . . . .” Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 (Fed. Cir. 2014). Our analysis under this factor is based upon the identifications of the goods or services in the application and in the cited registration. Id. at 1161-63; Octocom Sys., Inc. v. Houston Computs. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). “[L]ikelihood of confusion can be found ‘if the respective goods Serial No. 87025993 - 6 - are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.’” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). The goods identified in the application are “aerosol pipette tips,” while the pertinent goods identified in the cited registration are “laboratory consumables, namely, pipette tips,” “laboratory equipment, namely, pipette racks,” and “pipettes.” Applicant argues that the fact that its “goods relate to aerosol pipette tips and Registrant’s goods relate to laboratory equipment including pipette tips . . . does not necessarily mean the goods are sufficiently related to support a finding of a likelihood of confusion.” 9 TTABVUE 6. Applicant claims that its “aerosol pipette tips are a specific kind of pipette tip, which are impervious to aerosols that may form from the liquids taken into the pipette tip” and which are “more expensive than general pipette tips and [have] specific uses which are known and appreciated by consumers.” Id. at 7. These arguments are unavailing. Where, as here, goods “are broadly identified as to their nature and type,” it is presumed that they encompass “all the goods of the nature and type described therein . . . .” In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006) (holding that “Registrant’s furniture is not limited in any way as to nature, type, use or purpose and, thus, is broad enough to encompass the type of furniture sold by applicant”); see also In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) Serial No. 87025993 - 7 - (“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and commercial furniture.”). The goods broadly identified in the cited registration as “pipette tips” necessarily encompass all types of pipette tips, including the specific type of aerosol pipette tips identified in the application. The goods are thus legally identical in part. In re Fat Boys Water Sports, 118 USPQ2d 1511, 1518 (TTAB 2016) (“Inasmuch as Registrant’s goods are encompassed within the scope of Applicant’s goods, the respective goods are legally identical in part.”).7 This duPont factor supports a finding of a likelihood of confusion. Because the goods are legally identical in part, and there are no restrictions on those goods in their identifications, they are “‘presumed to travel in the same channels of trade to the same class of purchasers.’” In re Viterra, Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)); see also Stone Lion, 110 USPQ2d at 1161-62 (legal identity of services in part justified Board’s conclusion, without resort to extrinsic evidence, that they “covered the same potential 7 Given the legal identity of the goods in part, we need not find that Applicant’s “aerosol pipette tips” are related to the “pipettes” and “pipette racks” identified in the registration in order to find that this duPont factor supports a finding of a likelihood of confusion. See Jump Designs, 80 USPQ2d at 1374; Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1661 (TTAB 2014) (“[i]n the context of likelihood of confusion, it is sufficient if likelihood of confusion is found with respect to use of the mark on any item that comes within the description of goods in the application or registration.”) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) and Apple Comput. v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007)). Serial No. 87025993 - 8 - purchasers and channels of trade.”).8 This third duPont factor also supports a finding of a likelihood of confusion. B. Similarity of the Marks This du Pont factor focuses on “‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.’” Palm Bay Imps. Inc. v. Veuve Cliquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting 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) (citing In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988)). “The proper test is not a side- by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs., 101 USPQ2d at 1721. The legal identity of the goods reduces the degree of similarity between the marks that is necessary for confusion to be likely. See, e.g., Viterra, 101 USPQ2d at 1912; In re Mighty Tea Leaf, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). 8 The Internet evidence made of record by the Examining Attorney confirms that pipette tips, including the particular type identified in the application, pipettes, and pipette racks are sold in the same channels of trade to the same classes of customers. September 19, 2017 Denial of Request for Reconsideration at 34-83. Serial No. 87025993 - 9 - Applicant argues that “the parties’ marks differ significantly in appearance and pronunciation due to Registrant’s inclusion of ‘LAB,’” 9 TTABVUE 4, which Applicant claims “is the prominent portion of Registrant’s mark” because “it is the first part of the mark that is most likely to be impressed upon the mind of a purchaser, and as such, it is the first part of a mark that is the most prominent.” Id. at 5 (citing Palm Bay Imps. and Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895 (TTAB 1988)). With respect to meaning, Applicant argues that “the inclusion of the word ‘LAB’ in Registrant’s mark creates a different connotation as compared to Applicant’s mark” because “it conveys to consumers that the mark is associated with a laboratory.” 9 TTABVUE 5-6. According to Applicant, its “mark gives no such commercial impression—in fact, Applicant’s mark gives no indication whatsoever of the associated goods.” Id. at 6. The Examining Attorney responds that ZAP, not LAB, is the dominant portion of the cited mark because “the registrant has disclaimed the highly descriptive word LAB because as indicated in registrant’s identification of goods, the registrant’s goods are for use in a laboratory or a ‘lab’ setting.” 11 TTABVUE 6. According to the Examining Attorney, “the refusal should be affirmed as the marks in this comparison both contain the dominant, identical and arbitrary term ZAP; resulting in the marks being substantially similar in sound, appearance, and commercial impression.” Id. at 6-7. The cited mark LAB ZAP contains Applicant’s mark ZAP in its entirety. “The presence of an additional term in [a] mark does not necessarily eliminate the Serial No. 87025993 - 10 - likelihood of confusion if some terms are identical.” Mighty Tea Leaf, 94 USPQ2d at 1260 (affirming Board’s finding that ML in standard characters was confusingly similar to composite mark ML MARK LEES (stylized) for identical goods). “Likelihood of confusion often has been found where the entirety of one mark is incorporated within another.” Hunter Indus., 110 USPQ2d at 1660 (citing cases). Likelihood of confusion between LAB ZAP and ZAP may be avoided if the added term LAB in the cited mark causes the two marks to convey significantly different commercial impressions, or if the word ZAP shared by the marks is not likely to be perceived by purchasers as distinguishing source because it is merely descriptive or diluted. See generally Trademark Manual of Examining Procedure (“TMEP”) Section 1207.01(b)(iii) (Oct. 2017) and cases cited therein. Neither condition exists here. The presence of the word LAB in the cited mark LAB ZAP does not give it a different commercial impression, much less a significantly different one, from Applicant’s mark ZAP, when both marks are used in the context of laboratory equipment. Although the disclaimed word LAB is the first part of the cited mark, it has little or no source-identifying significance when used as part of a mark for “laboratory consumables, namely, pipette tips” and “laboratory equipment, namely, pipette racks,” and “pipettes,” because, as Applicant acknowledges, LAB “conveys to consumers that the mark is associated with a laboratory.” 9 TTABVUE 6. In addition, the shared word ZAP is, as Applicant acknowledges, 9 TTABVUE 6, arbitrary in relation to the goods. Serial No. 87025993 - 11 - There is also nothing to suggest that ZAP has become diluted as a source identifier in connection with pipettes, pipette tips, and pipette racks. The record is devoid of evidence of third-party use or registration of ZAP-formative marks for these goods, which could “‘show that customers . . . ‘have been educated to distinguish between different . . . marks on the basis of minute distinctions,’” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (quoting 2 J. McCarthy, MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION § 11:88 (4th ed. 2015) (“MCCARTHY”)), or that ZAP “‘has a normally understood and well recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Id. (quoting MCCARTHY § 11:88). The absence of third-party uses or registrations here indicates that ZAP does not have a well-recognized descriptive or suggestive meaning when used in connection with laboratory equipment, and has not lost any of its inherent source-identifying significance. There are minor differences between LAB ZAP and ZAP in appearance and sound arising from the presence of the word LAB in the cited mark, but they are outweighed by the very similar commercial impressions and connotations of the two marks engendered by the presence of the arbitrary and unusual word ZAP in each. Davia, 110 USPQ2d at 1812. Applicant’s mark ZAP is likely to be viewed as a shortened version of the cited mark LAB ZAP when used in connection with legally-identical goods. Hunter Indus., 110 USPQ2d at 1660-61 (applicant’s mark PRECISION likely to be viewed as shortened version of opposer’s mark PRECISION DISTRIBUTION CONTROL when used in connection with partially-identical goods). The two marks Serial No. 87025993 - 12 - “‘are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” In re U.S. Warriors Ice Hockey Program, Inc., 122 USPQ2d 1790, 1795 (TTAB 2017) (quoting Coach Servs., 101 USPQ2d at 1721). This duPont factor supports a finding of a likelihood of confusion. C. Applicant’s Evidence of Third-Party Registrations The sixth duPont factor is the number and nature of similar marks in use on similar goods. duPont, 177 USPQ at 567. As discussed above, such evidence is normally offered to show that the common element of two conflicting marks is weak, or has a readily-understood meaning. See, e.g., Juice Generation, 115 USPQ2d at 1674 (holding that evidence of third-party use and registration of marks containing the words “PEACE” and “LOVE” that were shared by the parties’ marks showed that those elements were weak when used in connection with the parties’ services). Applicant instead offers the third-party registrations in the record to show that “the Patent and Trademark Office has regularly granted registrations to two registrants, for the same goods, where the marks differ only in that one mark includes the word ‘LAB.’” 9 TTABVUE 8. Applicant’s brief contains a table listing information about nine LAB-formative composite marks (e.g., LABREACH in Registration No. 5089288; LABPAK in Registration No. 5084979), which Applicant claims have coexisted on the Register with other marks consisting of the non-LAB portion of those marks (e.g., Serial No. 87025993 - 13 - REACH in Registration No. 2783127; PAK in Registration No. 1301356). Id. at 9-10.9 Applicant argues that “as in the present situation, the cited marks are identical to each other except that one includes the root word ‘LAB’ where the other does not include ‘LAB,’” and that this “evidence is highly relevant and dispositive of the issue of the present situation. Id. at 10. These registrations have little or no probative value for several reasons. First, and most fundamentally, “[n]either the Board nor any Trademark Examining Attorney is bound by decisions of Examining Attorneys to register prior marks. To the contrary, ‘the [US]PTO must decide each application on its own merits, and decisions regarding other registrations do not bind either the [USPTO] or the [reviewing] court.’” U.S. Warriors Ice Hockey Program, 122 USPQ2d at 1793 n.10 (quoting In re Boulevard Entm’t, 334 F.3d 1336, 67 USPQ2d 1475, 1480 (Fed. Cir. 2003)). Second, none of the registrations involve the element common to the marks here: the arbitrary word “ZAP.” The fact that the USPTO has issued multiple registrations of composite marks containing the word “LAB,” as well as registrations of the other elements of those marks, tells us very little, if anything, about the ability of a mark that consists entirely of ZAP to coexist with another mark that is dominated by ZAP. 9 Applicant requests in its brief that the table, “and what it shows,” be made part of the record. 9 TTABVUE 10. It is unnecessary for the table per se to be made a part of the record because, with the one exception noted above, the referenced registrations were made of record during prosecution. September 6, 2017 Request for Reconsideration at 2-32. The table is merely a summary of the registrations. Serial No. 87025993 - 14 - Finally, as the Examining Attorney points out, five of the nine pairs of marks never actually coexisted on the Trademark Register,10 and only one of the registrations covers pipettes and similar goods,11 and its “paired” registration did not cover the same goods and was not on the Register at the same time.12 The third-party registrations do not aid Applicant. On the record before us, this duPont factor is neutral. D. Sophistication of Purchasers The fourth duPont factor is the “conditions under which and buyers to whom sales are made, i.e., ‘impulse’ v. careful, sophisticated purchasing.” duPont, 177 USPQ at 576. Applicant claims that its “goods (aerosol pipette tips) are specialty items sold to professionals in scientific fields. Such professionals are typically knowledgeable and make purchasers after careful consideration.” 9 TTABVUE 8 (citing Hewlett-Packard Co. v. Human Performance Measurement Inc., 23 USPQ2d 1390 (TTAB 1991)). The Examining Attorney responds that the “fact that purchasers are sophisticated or knowledgeable in a particular field does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion.” 11 TTABVUE 10. 10 Four pairs of marks were registered at different times, while one pair of marks involves a subsisting registration and an application that was pending at the time of briefing. 11 TTABVUE 11-12. Notably, applications have very little probative value, as applications are proof of nothing more than the fact that they were filed. Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1550 (TTAB 2012); In re Binion, 93 USPQ2d 1531, 1535 n.3 (TTAB 2009). 11 Registration No. 4217651 for the mark LABGENIUS. 9 TTABVUE 34-35. 12 Registration No. 2749737 for the mark GENIUS for precision electronic laboratory balances. 9 TTABVUE 36-37. Serial No. 87025993 - 15 - There is no direct evidence in the record regarding the identity of the purchasers of pipette tips, including whether they are the end users of those goods, whom Applicant describes as “professionals in scientific fields.” Assuming, however, that the purchasers of Applicant’s goods include scientific professionals who work in laboratories, there is no evidence in the record that the high degree of care with which those professionals presumably use the goods in the course of transferring and measuring fluids is matched by a similarly high degree of care in purchasing the goods. In the Hewlett-Packard case cited by Applicant, the applicant sought registration of its HPM and design mark for “medical instruments for clinical measurement of human performance functions, e.g. manual dexterity, reaction time and memory.” The opposer owned various HP marks for “a wide range of related laboratory and medical instruments and equipment for physiological monitoring, measuring, recording, diagnostic and analysis purposes, and parts therefor, and related services,” 23 USPQ2d at 1391-92, including electromyographs, cardiac telemetry systems, and electrocardiogram machines. In finding that confusion was unlikely even though both parties sold their goods to hospitals, the Board found that the parties’ goods were “sophisticated medical equipment” that “would be purchased with great care by purchasers familiar with the source or origin of the products” given the “deliberation involved in determining the suitability of particular medical instruments for specific patient care applications” and the fact that “customers and prospective purchasers Serial No. 87025993 - 16 - typically deal directly with the parties in making their purchasing decisions . . . .” Id. at 1396. The Internet evidence made of record by the Examining Attorney here establishes that pipettes are qualitatively different, in terms of the likely degree of care exercised in their purchase, from the goods at issue in Hewlett-Packard. The record shows that pipette tips can be purchased online, in bulk quantities, at a variety of price points, and with at least some degree of fungibility. We reproduce below the display of pipette tips (including one of Applicant’s own) on several webpages in the record: September 19, 2017 Denial of Request for Reconsideration at 45. Id. at 68. Serial No. 87025993 - 17 - Id. at 82. The record thus suggests that Applicant’s goods are not likely to be purchased in the same manner, or with the same high degree of care, as the goods in Hewlett-Packard. Applicant offers no evidence to the contrary. In any event, even if the nature of Applicant’s goods makes it “reasonable for us to assume that the relevant purchasers are likely to exercise some degree of care when it comes to buying and using” pipette tips, In re Cook Med. Techs. LLC, 105 USPQ2d 1377, 1383 (TTAB 2013), it is settled that “even sophisticated purchasers are not immune from source confusion, especially in cases such as the instant one involving similar marks and closely related goods.” Id. See also In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1992) (“even sophisticated purchasers can be confused by very similar marks.)” (citing Weiss Assocs., Inc. v. HRL Serial No. 87025993 - 18 - Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1841-42 (Fed. Cir. 1990)). This duPont factor weighs only slightly against a finding of a likelihood of confusion. IV. Conclusion The goods, channels of trade, and classes of customers are legally identical and the marks are quite similar. Taken together, these duPont factors strongly support a finding of likelihood of confusion. There is no evidence that confusion is made less likely by reason of third-party use or registration of ZAP-formative marks, and we “find that the similarities between the marks and the goods sold thereunder outweigh any sophisticated purchasing decision, especially in the absence of evidence relating to the degree of care in making the decision.” Cook Med. Techs., 105 USPQ2d at 1383. On the basis of the record as a whole, we find that confusion as to the source or sponsorship of Applicant’s goods is likely. Decision: The refusal to register is affirmed.