Medical Imaging Solutions, Inc.

Trademark Trial and Appeal Board

Jul 1, 2003

No. 76158788 (T.T.A.B. Jul. 1, 2003)

Mailed: July 1, 2003
Paper No. 12
BAC
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Medical Imaging Solutions, Inc.
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Serial No. 76/158,788
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Seth M. Nehrbass of Garvey, Smith, Nehrbass & Doody, L.L.C.
for Medical Imaging Solutions, Inc.
Ronald McMorrow, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______
Before Chapman, Bottorff and Rogers, Administrative
Trademark Judges.
Opinion by Chapman, Administrative Trademark Judge:
On November 2, 2000, Medical Imaging Solutions, Inc.
(a Louisiana corporation) filed an application to register
on the Principal Register the mark shown below
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/158788
2
for “medical imaging devices, namely, x-ray devices” in
International Class 10. The application is based on
applicant’s claimed date of first use and first use in
commerce of April 2000.
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when applied to its identified goods, so
resembles the registered mark ANGIOVISION for “medical
digital imagers for angiography investigation of retinal
vascular and neural system in ophthalmology” in
International Class 10,1 as to be likely to cause confusion,
mistake or deception.
When the refusal was made final, applicant appealed.
Briefs have been filed, but applicant did not request an
oral hearing.
We affirm the refusal to register. In reaching this
conclusion, we have followed the guidance of the Court in
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). See also, In re Majestic Distilling
Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
1 Registration No. 2,042,273, issued March 4, 1997. See Section
8(c)(1) of the Trademark Act, 15 U.S.C. §1058(c)(1).
Ser. No. 76/158788
3
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
Turning first to a consideration of the involved
marks, it is well settled that marks must be considered in
their entireties as to the similarities and dissimilarities
thereof. However, our primary reviewing court has held
that in articulating reasons for reaching a conclusion on
the question of likelihood of confusion, there is nothing
improper in stating that, for rational reasons, more or
less weight has been given to a particular feature or
portion of a mark. That is, one feature of a mark may have
more significance than another. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1845 (Fed. Cir.
2000); Sweats Fashions Inc. v. Pannill Knitting Co., 833
F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); and In re
National Data Corporation, 753 F.2d 1056, 224 USPQ 749, 752
(Fed. Cir. 1985).
In this case, both applicant’s mark and registrant’s
mark share the term ANGIOVISION. It is the cited
registrant’s entire mark, and it is the dominant part of
applicant’s mark. The slight stylization of applicant’s
Ser. No. 76/158788
4
mark, i.e., the upper/lower-case lettering and the addition
of a design feature which is highly suggestive as applied
to medical devices, does not detract from the dominance of
the word ANGIOVISION in the commercial impression created
by applicant’s mark, and does not serve to distinguish
applicant’s mark from the cited registered mark.
We grant the Examining Attorney’s request (brief,
unnumbered p. 3) that we take judicial notice of The
American Heritage Dictionary (Third edition 1992)
definition of “angiography” as “examination of the blood
vessels using x-rays following the injection of a
radiopaque substance.” See The University of Notre Dame du
Lac v. J.C. Gourmet Food Imports Co., Inc., 213 USPQ 594
(TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983). See also, TBMP §712.01. Given the meaning of
“angiography,” the word ANGIOVISION connotes essentially
the same concept when considered in relation to the medical
imaging process involved in both applicant’s “medical
imaging devices, namely x-ray devices” and registrant’s
“medical digital imagers for angiography investigation of
retinal and neural system in ophthalmology.”
The differences in the marks do not serve to
distinguish the marks here in issue. That is, purchasers
are unlikely to remember the specific differences between
Ser. No. 76/158788
5
the marks, focusing more on the word ANGIOVISION, due to
the recollection of the average purchaser, who normally
retains a general, rather than a specific, impression of
the many trademarks encountered. Purchasers seeing the
marks at separate times may not recall these differences
between the marks. See Grandpa Pidgeon’s of Missouri, Inc.
v. Borgsmiller, 477 F.2d 586, 177 USPQ 573 (CCPA 1973); and
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735
(TTAB 1991), aff’d unpub’d (Fed. Cir., June 5, 1992).
We find that applicant’s mark ANGIOVISION and design
and registrant’s mark ANGIOVISION are very similar in sound
and connotation, somewhat similar in appearance, and create
similar overall commercial impressions. See In re Azteca
Restaurant Enterprises Inc., 50 USPQ2d 1209 (TTAB 1999).
Turning to the similarities/dissimilarities and the
nature of the involved goods, the Board must determine the
issue of likelihood of confusion on the basis of the goods
and/or services as identified in the application and the
registration, and in the absence of any specific
limitations therein, on the basis of all normal and usual
channels of trade and methods of distribution for such
goods. See Octocom Systems Inc. v. Houston Computer
Services, Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir.
1990); Canadian Imperial Bank of Commerce, National
Ser. No. 76/158788
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Association v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813 (Fed. Cir. 1987); and Squirtco v. Tomy Corp., 697 F.2d
1034, 216 USPQ 937 (Fed. Cir. 1983).
Further, it is well settled that goods or services
need not be identical or even competitive to support a
finding of likelihood of confusion, it being sufficient
instead that the goods or services are related in some
manner or that the circumstances surrounding their
marketing are such that they would likely be encountered by
the same persons under circumstances that could give rise
to the mistaken belief that they emanate from or are
associated with the same source. See In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed.
Cir. 1984); and In re Opus One Inc., 60 USPQ2d 1812 (TTAB
2001).
In support of his position, the Examining Attorney
submitted photocopies of a few third-party registrations,
based on use in commerce, showing identifications of goods
which broadly cover x-ray systems used in, inter alia,
angiography examinations. (See, for example, Registration
No. 1,317,926 issued to Continental X-Ray Corporation for
“medical diagnostic x-ray equipment for radiographic and
fluoroscopic examination, namely,... digital subtraction
angiography systems, ...”; and Registration No. 2,506,647
Ser. No. 76/158788
7
issued to Cares Built, Inc. for “x-ray apparatus, namely, a
radiology, fluoroscopy and angiography x-ray system for
medical use.”)
Importantly, applicant’s goods, as identified, are
broadly worded so as to encompass all types of x-ray
devices, one type of which would be registrant’s system
identified in the cited registration. That is, while
registrant’s goods are limited to angiography in the field
of ophthalmology, applicant’s “medical imaging devices,
namely, x-ray devices,” are not restricted in any way as to
the field(s) of medicine or type of imaging application in
which these medical imaging devices are to be used.
Applicant’s goods, as identified, are also not restricted
as to trade channels or purchasers. Thus, applicant’s
argument that its medical imaging devices are x-ray devices
used by cardiologists, while registrant’s medical digital
imagers use visible light to study blood vessels in the
eyes and are used by ophthalmologists is unpersuasive. We
note, in any event, that applicant submitted no evidence in
support of its assertions.
Even assuming the purchasers and/or users of these
goods are sophisticated, this does not mean that such
consumers are immune from confusion as to the origin of the
respective goods, especially when sold under similar marks.
Ser. No. 76/158788
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See Wincharger Corporation v. Rinco, Inc., 297 F.2d 261,
132 USPQ 289 (CCPA 1962); In re Total Quality Group Inc.,
51 USPQ2d 1474 (TTAB 1999); and In re Decombe, 9 USPQ2d
1812 (TTAB 1988). That is, even relatively sophisticated
purchasers and users of these medical imaging devices could
believe that these goods come from the same source, if
offered under substantially similar marks. See Weiss
Associates Inc. v. HRL Associates Inc., 902 F.2d 1546, 14
USPQ2d 1840 (Fed. Cir. 1990); and Aries Systems Corp. v.
World Book Inc., 23 USPQ2d 1742, footnote 17 (TTAB 1992).
In this case, applicant’s goods and those of
registrant could be encountered by consumers in
circumstances that would give rise to the belief that both
parties’ goods come from or are associated with the same
source. For example, consumers might consider the
ANGIOVISION products of applicant additions to the product
line of registrant. See Dan Robbins & Associates, Inc. v.
Questor Corporation, 599 F.2d 1009, 202 USPQ 100 (CCPA
1979).
Decision: The refusal to register under Section 2(d)
of the Trademark Act is affirmed.