McCrane, Inc. d/b/a Harbinger

Trademark Trial and Appeal Board

May 12, 2014

No. 85675326 (T.T.A.B. May. 12, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
May 12, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re McCrane, Inc. d/b/a Harbinger
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Serial No. 85675326
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Edward S. Wright of the Law Offices of Edward S. Wright for McCrane, Inc. d/b/a
Harbinger.

Ingrid C. Eulin, Trademark Examining Attorney, Law Office 111 (Robert L.
Lorenzo, Managing Attorney).
_____

Before Mermelstein, Adlin and Masiello, Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
McCrane, Inc. d/b/a Harbinger (“applicant”) seeks registration of the mark
BioFlex, in standard characters, for:
Foam rollers for use in physical therapy in International
Class 10;

Jackets; Shirts; Polo shirts; Dress shirts; Sport shirts; T-
shirts; Sweat shirts; Sweat pants; Shorts; Baseball caps;
Hats; Gloves; Ski gloves; Bicycling gloves; Motorcycle
gloves; Athletic apparel, namely, shirts, pants, jackets,
footwear, hats and caps, athletic uniforms; Socks; Sweat
bands in International Class 25; and

Serial No. 85675326
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Weight lifting gloves; Work-out gloves; Protective padding
for skateboarding; Dumbbells; Exercise weight cuffs;
Exercise weights; Leg weights; Weight lifting belts;
weight bar pads; Resistance cables used for hand
exercises; Balance trainers; Jump ropes; Personal exercise
mats; Personal exercise mats with markings for doing
push-ups; Knee pads for athletic use; Elbow pads for
athletic use; Elbow wraps for athletic use; Wrist wraps for
athletic use; Wrist supports for athletic use; Knee wraps
for athletic use; Forearm protectors for athletic use; Shin
protectors for athletic use; Exercise balls; Medicine balls;
Sports equipment for boxing and martial arts, namely,
boxing gloves, mixed martial arts gloves, punching mitts,
and shin guards; Baseball bat bags; Bags specially
adapted for sports equipment in International Class 28.1

The examining attorney refused registration of the mark under Section 2(d) of the
Trademark Act of 1946, 15 U.S.C. § 1052(d), on the ground that applicant’s mark,
when used in connection with applicant’s goods, so resembles the following
previously-registered marks
BIOFLEX, in standard characters, for “Exercise
equipment, namely machines for strengthening the back
and abdominal muscles” owned by Jane Gomes (the “‘059
Registration”)2 and

BIOFLEX, in typed form, for “Magnets for medical
purposes; magnetic patches, bandages, and garments all
for therapeutic use; magnetic patches, bandages, and
garments all for use in magnetic medical treatment;
orthopedic support bandages; compression and elastic
bandages, but not for wound care; garments for
therapeutic use, namely, body corsets, body limb wraps,
head and neck wraps, and clothing items employing

1 Application Serial No. 85675326, filed July 12, 2012 under Section 1(b) of the Act, based
on an intent to use the mark in commerce.
2 Registration No. 3082059, issued April 18, 2006 pursuant to Section 44(e) of the Act
based on a Canadian registration; Section 8 affidavit accepted, Section 15 affidavit
acknowledged.
Serial No. 85675326
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magnets” owned by Rheinmagnet Horst Baermann GmbH
(the “‘415 Registration”)3

that use of applicant’s mark in connection with applicant’s goods is likely to cause
confusion or mistake or to deceive. After the refusal became final, applicant
appealed and applicant and the examining attorney filed briefs.
Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative
facts in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); see also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods. See 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.”).
Turning first to the marks, they are identical. Specifically, applicant’s mark
and the mark in the ‘059 Registration are both standard character marks, while the
mark in the ‘415 Registration is in typed form. There is no substantive difference
between standard character marks and marks in typed form. In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (Fed. Cir. 2012) (“until 2003, ‘standard

3 Registration No. 3265415, issued July 17, 2007; Section 8 affidavit accepted, Section 15
affidavit acknowledged.
Serial No. 85675326
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character’ marks formerly were known as ‘typed’ marks, but the preferred
nomenclature was changed in 2003 to conform to the Madrid Protocol … we do not
see anything in the 2003 amendments that substantively alters our interpretation
of the scope of such marks”). Therefore, applicant’s argument that its mark is
different than the cited marks because it is displayed as “BioFlex” is unavailing – a
standard character mark “is not limited to any particular font, size, style, or color,”
and may be displayed in the same manner as the cited marks (and vice versa). In re
Viterra, 101 USPQ2d at 1909-10; In re Strategic Partners Inc., 102 USPQ2d 1397,
1399 (TTAB 2012). Because the marks are identical, this factor not only weighs
heavily in favor of finding a likelihood of confusion, but also reduces the degree of
similarity between the goods that is required to support a finding of likelihood of
confusion. 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”); Time Warner Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002); and In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Turning to the goods, they need not be identical or even competitive in order
to support a finding of likelihood of confusion. It is enough that the goods are
related in some manner or that the circumstances surrounding their marketing are
such that they would be likely to be seen by the same persons under circumstances
which could give rise, because of the marks used, to a mistaken belief that
applicant’s and registrants’ goods originate from or are in some way associated with
Serial No. 85675326
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the same source or that there is an association between the sources of the goods.
Hilson Research, Inc. v. Society for Human Resource Management, 27 USPQ2d
1423, 1432 (TTAB 1993); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991);
Schering Corp. v. Alza Corp., 207 USPQ 504, 507 (TTAB 1980); Oxford Pendaflex
Corp. v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB 1978); In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The issue is not
whether purchasers would confuse the goods, but rather whether there is a
likelihood of confusion as to the source of the goods. In re Rexel Inc., 223 USPQ 830,
832 (TTAB 1984).
Here, there is a relationship between the goods. Applicant’s foam rollers are
for use in physical therapy, and its Class 28 goods include exercise equipment. The
‘059 Registration is also for exercise equipment, and the ‘415 Registration is for
goods for “therapeutic use,” including “orthopedic support bandages” which may be
used therapeutically and/or in connection with physical therapy and/or exercise.
Furthermore, some of applicant’s and registrants’ goods are complementary.
For example, consumers may wear applicant’s “athletic apparel” while using the
‘059 Registration’s “exercise equipment,” or may wear the ‘415 Registration’s
“orthopedic support bandages” while using applicant’s “foam rollers for use in
physical therapy.” Where, as here, products are complementary, they may be found
to be related. In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ
1289, 1290 (Fed. Cir. 1984); General Mills, Inc. v. Fage Dairy Processing Industry
SA, 100 USPQ2d 1584, 1597-98 (TTAB 2011), judgment set aside on other grounds,
Serial No. 85675326
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2014 WL 343267 (TTAB 2014); In re Toshiba Medical Systems Corp., 91 USPQ2d
1266, 1272 (TTAB 2009).
In addition, the examining attorney has established that the same sources
offer goods similar in type to applicant’s goods on the one hand and goods similar in
type to registrants’ goods on the other. For example, the following marks are
registered to different owners and based on use in commerce:
POWER SYSTEMS & Design (Reg. No. 2516446) for
“jump ropes,” “dumbbells,” “lifting belts,” “lifting gloves,”
“exercise mats,” “resistance bands,” “foam rollers” and
“weighted cuffs for thighs” on the one hand and “lower
back machines” and “ab crunch machines” on the other.

NOPAIN.COM (Reg. No. 4234286) for “physical
rehabilitation, physical therapy and sports medicine
equipment all designed specifically for medical use,
namely … foam rollers, gymnastic balls” on the one hand,
and “electromedical rehabilitative and pain management
products for clinical and home use, namely, … magnet
therapy stimulators” and “physical exercise apparatus, for
medical purposes” on the other.

MEDICOMAT (Reg. No. 4264347) for “foam rollers for use
in physical therapy,” “manually-operated exercise
equipment for physical therapy purposes,” “apparatus for
physical training for medical use” and “body
rehabilitation apparatus for medical purposes” on the one
hand and “electromedical rehabilitative and pain
management products for clinical and home use, namely
… magnet therapy stimulators …” and “high frequency
electromagnetic therapy apparatus” on the other.

Office Action of March 24, 2013.4 “Third-party registrations which cover a number
of differing goods and/or services, and which are based on use in commerce,

4 Applicant’s suggestions to the contrary notwithstanding, we consider only the goods
identified in the application and cited registrations, rather than the classes to which those
goods belong. Trademark Act §30; Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d
Serial No. 85675326
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although not evidence that the marks shown therein are in use on a commercial
scale or that the public is familiar with them, may nevertheless have some
probative value to the extent that they may serve to suggest that such goods or
services are of a type which may emanate from a single source.” See, In re Mucky
Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998); see also In re Davey
Prods. Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009).5
Similarly, the “livestrong.com” website indicates that exercise equipment
intended to strengthen muscles, such as that identified in the ‘059 Registration,
may be used in physical therapy, just as applicant’s foam rollers are used in
physical therapy. Office Action of March 24, 2013. The same website indicates that
foam rollers, like the equipment in the ‘059 Registration, may be used for back
exercises. Id. The site also indicates that applicant’s foam rollers may be used for
“back pain relief,” which is also a purpose of the patches, bandages and garments in
the ‘415 Registration. Id. Similarly, the “optp.com” website offers foam rollers such

1771, 1774 (Fed. Cir. 1993) (stating that classification is for the convenience of the Office
and “wholly irrelevant to the issue of registrability under section 1052(d), which makes no
reference to classification”).
5 In evaluating the relatedness of the goods, we find this case to be much more similar to In
re Shell Oil, 26 USPQ2d at 1687 than In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d
1059 (Fed. Cir. 2003). That is, in this case the marks are identical and potential customers
for applicant’s physical therapy products would be potential customers for the goods in the
‘415 Registration, while potential customers for applicant’s exercise products would be
potential customers for the goods in the ‘059 Registration. See, In re Coors Brewing, 68
USPQ2d at 1064; cf. Calypso Technology Inc. v. Calypso Capital Management LP, 100
USPQ2d 1213, 1221 (TTAB 2011) (where third-party registrations submitted to show
relatedness of goods were not based on use in commerce and there was no other “evidence of
record that shows that” the goods and services were ever offered by the same company). In
any event, absent the examining attorney’s third-party registration evidence, our ultimate
decision would be unchanged.
Serial No. 85675326
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as applicant’s, as well as products to treat pain and other orthopedic ailments, such
as those in the ‘415 Registration.
Applicant attached to its appeal brief dictionary definitions which further
establish that the goods are related.6 “Therapeutics” is defined as “a branch of
medicine that deals with the ways to treat illnesses,” or to “alleviate pain or injury.”
Applicant’s Appeal Brief Ex. A (Merriam-Webster Dictionary/Concise Encyclopedia).
Therapeutic tools include “mechanical devices.” Id. The Concise Encyclopedia
entry states “See also … occupational therapy; physical medicine and rehabilitation
….” Id. “Physical therapy” is defined as “the treatment of disease or an injury of
the muscles or joints with massage, exercises, heat, etc.,” and its “medical
definition” indicates it may utilize “physical modalities (as massage and
electrotherapy).” Id. Ex. B (Merriam-Webster Dictionary). Based on these
definitions, it is clear that the magnetic patches, bandages, garments and other
products in the ‘415 Registration may, like applicant’s foam rollers, be used for
physical therapy and that the exercise equipment in the ‘059 Registration may be
used, like applicant’s foam rollers and exercise products, for physical therapy.
With its February 28, 2013 Office Action response, applicant introduced
evidence that the mark in the ‘059 Registration is used for inversion tables. This is
irrelevant, because we must base our decision on the goods identified in the ‘059
Registration, rather than extrinsic evidence. Stone Lion Capital Partners, L.P. v.

6 While this evidence is untimely under Trademark Rule 2.142(d), the examining attorney
did not object to it, but instead relied on it in her brief, and accordingly we have considered
it. In re Sadoro Group Ltd., 105 USPQ2d 1484, 1485, 1489 n.6 (TTAB 2012); In re Heeb
Media LLC, 89 USPQ2d 1071, 1072 (TTAB 2008).
Serial No. 85675326
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Lion Capital LLP, ___ F.3d ___, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (“the
question of registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application”) (quoting Octocom Sys., Inc. v.
Houston Comps. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990));
In re Thor Tech Inc., 90 USPQ2d 1634, 1637-38 (TTAB 2009) (“we must also analyze
the similarity or dissimilarity and nature of the goods based on the description of
the goods set forth in the application and the registration at issue … we may not
limit or restrict the trailers listed in the cited registration based on extrinsic
evidence”); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986)
(“the question of likelihood of confusion must be determined by an analysis of the
marks as applied to the goods identified in the application vis-à-vis the goods
recited in the registration, rather than what extrinsic evidence shows those goods to
be.”).7
As for the channels of trade, applicant’s Class 28 goods and the goods in the
‘059 Registration are exercise equipment, with no limitations as to channels of trade
or classes of consumers, and those goods are therefore presumed to move in all
normal channels of trade for those goods and be available to all classes of
consumers. Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs, LLC, 80 USPQ2d 1370,

7 Applicant attached similar evidence to its brief, and the examining attorney objected to it
as untimely. The objection is sustained. Trademark Rule 2.142(d) (“The record in the
application should be complete prior to the filing of an appeal. The [Board] will ordinarily
not consider additional evidence filed with the Board by the appellant or by the examiner
after the appeal is filed.”). In any event, the evidence is cumulative and would not have
affected our decision.
Serial No. 85675326
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1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); see also, Stone
Lion Capital, 110 USPQ2d at 1162 (“Even assuming there is no overlap between
Stone Lion’s and Lion’s current customers, the Board correctly declined to look
beyond the application and registered marks at issue. An application with ‘no
restriction on trade channels’ cannot be ‘narrowed by testimony that the applicant’s
use is, in fact, restricted to a particular class of purchasers.’”). Similarly, applicant’s
“foam rollers” are for use in “physical therapy,” while the goods in the ‘415
Registration are for “therapeutic use,” which may include “physical therapy” uses.
The channels of trade for these goods are therefore also the same. Moreover, the
examining attorney’s evidence establishes that applicant’s foam rollers and exercise
equipment, the ‘059 Registration’s exercise equipment and the ‘415 Registration’s
products for “therapeutic use” in fact travel in the same channels of trade. Office
Action of March 24, 2013. In short, the relatedness of the goods and their channels
of trade also weigh in favor of finding a likelihood of confusion.
Finally, applicant argues that the goods in the ‘415 Registration “are sold to
doctors and other medical professionals who are sophisticated buyers who are not
likely to think that such products come from the same source as foam rollers for
physical therapy.” Applicant’s Appeal Brief at 3. This argument is unavailing, for
several reasons. First, it is unsupported by any evidence of record; or by the
identification of goods in the ‘415 Registration, which is not limited to “doctors and
other medical professionals” or other sophisticated consumers. See Stone Lion
Capital, 110 USPQ2d at 1162-63. We must presume that registrant’s goods are sold
Serial No. 85675326
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to all usual consumers for the goods of that type, including those who purchase
applicant’s goods. Second, applicant’s argument ignores the goods in the ‘059
Registration which are also not limited to sophisticated consumers and are instead
sold to ordinary consumers who exercise. Finally, even if we assume that
consumers may exercise at least some care in purchasing applicant’s and
registrants’ products, even careful purchasers can be confused as to source when
presented with identical marks used on related and/or complementary goods. See
In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986)
citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168
USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers
… are not infallible.”). Even giving applicant the benefit of the doubt, this factor is
at best neutral.
There is no relevant evidence or argument concerning the remaining
likelihood of confusion factors, and we therefore treat them as neutral.
Conclusion
After considering all of the evidence of record as it pertains to the relevant du
Pont factors, including all of applicant’s arguments and evidence, even if not
specifically discussed herein, we find that confusion is likely because the marks are
identical, the goods related and the channels of trade overlapping.

Decision: The Section 2(d) refusal to register applicant’s mark is affirmed.