Wavesense, Inc.

Trademark Trial and Appeal BoardJul 22, 2021

88587564 (T.T.A.B. Jul. 22, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: July 22, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Wavesense, Inc. _____ Serial No. 88587564 _____ Matthew A. Newboles of Stetina Brunda Garred & Brucker, for Wavesense, Inc. Jacquelyn A. Jones, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Lykos, Heasley, and Lynch, Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: I. Background Wavesense, Inc. (“Applicant”) seeks registration on the Principal Register of the mark REVOLUTION in standard characters for: Diagnostic reagents for scientific or research use, namely, for the preparation of biological fluid samples for use in liquid diagnostic testing systems to sequester target Serial No. 88587564 - 2 - analytes of interest for isolation and characterization, in International Class 1; and Medical devices, namely, liquid biopsy testing systems for the preparation of biological fluid samples for use in liquid diagnostic testing systems to sequester target analytes of interest for isolation and characterization, in International Class 10.1 The Examining Attorney refused registration under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on a likelihood of confusion with two registered marks owned by different entities. The first cited registration is for the mark for goods and services including: Chemical preparations for use in the extraction, isolation and purification of medical samples for scientific and research purposes; chemical preparations for use in the extraction, isolation and purification of DNA and RNA for scientific and research purposes; chemical buffers for use in the extraction, isolation and purification of DNA and RNA for scientific and research purposes, in International Class 1; and Medical apparatus and instruments for use in DNA and RNA exams for medical purposes; medical apparatus and instruments for sample collection, namely, blood collection bags for medical purposes; medical apparatus and instruments for sample preparation for medical diagnostic uses; medical apparatus and equipment for sample separation, namely, blood component separator; medical apparatus and equipment for the extraction, isolation and purification of DNA and RNA for use in DNA and RNA exams for medical use; medical apparatus and equipment for diagnostic and research purposes, namely, an apparatus for DNA and RNA exams for medical purposes; columns for medical use, namely, an apparatus for DNA and RNA exams for medical purposes; columns for sample 1 Application Serial No. 88587564 was filed August 21, 2019, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 88587564 - 3 - preparation for medical use, namely, an apparatus for DNA and RNA exams for medical purposes; columns for sample separation for medical use, namely, an apparatus for DNA and RNA exams for medical purposes; columns for the extraction, isolation and purification of DNA and RNA for medical use, namely, an apparatus for DNA and RNA exams for medical purposes; collection tubes for medical use, namely, blood tubing sets for medical purposes, in International Class 10.2 The second cited registration is for the mark CRISPREVOLUTION in standard characters for: Assays and reagents for use in genetic research; Assays for research purposes; Biochemical reagents used for non- medical purposes; Biochemicals, namely, polynucleotides for in vitro and in vivo scientific and research purposes; Biochemicals, namely, precursors for in vitro genetic engineering use; Cells for scientific and research use; Cells for scientific, laboratory or medical research; Chemical reagents for non-medical purposes; Chemical reagents for non-medical purposes; Chemical reagents, other than for medical or veterinary purposes; Chemical solutions and preparations consisting of pre-mixed reactants and reagents for scientific and research use in connection with amplification, analysis or labeling of nucleic acid; Chemical test kits for molecular biology research for laboratory or research use; Diagnostic preparations for scientific or research use other than for medical use; Diagnostic reagents and preparations, except for medical or veterinary use; Diagnostic reagents and preparations, except for medical or veterinary use; Diagnostic reagents for scientific use; Diagnostic reagents for scientific or research use; Diagnostic reagents for in vitro use in biochemistry, clinical chemistry and microbiology; Diagnostic preparations for scientific or research use other than for medical use; Nucleic acid sequences and chemical reagents for other than medical and veterinary purposes; 2 Registration No. 5409548 issued February 27, 2018. The registration includes the following description of the mark: “The mark consists of the blue and green wording ‘REVOLUGEN’. ‘REVOLU’ is blue and ‘GEN’ is green. A blue rectangle surrounds the wording. The white background is claimed as a feature of the mark.” The colors blue, white and green are claimed as a feature of the mark. Serial No. 88587564 - 4 - Nucleotides for scientific and research use; Reagent kits comprising generic DNA circle, DNA primers, polymerase and buffers for use in biotechnology fields; Reagents for scientific or medical research use; Reagents for use in scientific apparatus for chemical or biological analysis, in International Class 1; and Biochemical research and development; Biotechnology research; Consulting services in the fields of biotechnology, pharmaceutical research and development and genetic science; Consulting services in the fields of biotechnology, pharmaceutical research and development, laboratory testing, diagnostics, and pharmacogenetics; Custom design and development of chemical reagents and biochemical assays; Design, engineering, research, development and testing services in the field of polymeric materials, polymer synthesis, and materials customization for medical, scientific, and technological applications; DNA analysis services for scientific research purposes; DNA screening for scientific research purposes; Genetic mapping for scientific purposes; Genetic testing for scientific research purposes; Genetic testing of laboratory animals for research purposes; Providing reagent sample testing and diagnostic services for others in the fields of science and research related thereto; Research and development in the pharmaceutical and biotechnology fields; Scientific research; Scientific research and development; Scientific research in the field of genetics and genetic engineering, in International class 42.3 After the Examining Attorney made the refusal final, Applicant filed a request for reconsideration and appealed. The Examining Attorney denied the request for reconsideration, maintaining the likelihood of confusion refusal.4 The appeal then proceeded, and Applicant and the Examining Attorney filed briefs. 3 Registration No. 5171152 issued March 28, 2017. 4 In the final refusal and the denial of reconsideration, the Examining Attorney also maintained a requirement for a definite identification of Applicant’s goods in International Class 10. However, in her Appeal Brief, the Examining Attorney withdrew the requirement Serial No. 88587564 - 5 - II. Likelihood of Confusion Our determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). The Board considers only those DuPont factors for which there is evidence and argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). “Not all DuPont factors are relevant in each case, and the weight afforded to each factor depends on the circumstances.” Stratus Networks, Inc. v. UBTA-UBET Communs. Inc., 955 F.3d 994, 2020 USPQ2d 10341 **3 (Fed. Cir. 2020). Two key considerations are the similarities between the marks and the relatedness of the goods. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). As explained below, because Applicant’s proposed mark is likely to cause confusion with in cited Registration No. 5409548, we need not address likelihood of confusion based on the other cited registration. We and deemed Applicant’s amended identification of goods in International Class 10 acceptable. 8 TTABVUE 5. Serial No. 88587564 - 6 - therefore refer to Registration No. 5409548 as the cited registration and as the cited mark. A. Strength of the Cited Mark and Applicant’s Request for a Remand Because the strength of the cited mark affects the scope of its protection, we first address Applicant’s arguments about the existence of third-party registrations for REVOLUTION-formative marks. The sixth DuPont factor concerns the extent to which the strength of the cited mark may be attenuated by “[t]he number and nature of similar marks in use on similar … goods.” DuPont, 177 USPQ at 567. Applicant contends that its mark can coexist with the cited registration because Applicant’s mark “is in fact no more likely to cause confusion with the cited marks than the cited marks are likely to cause confusion with the numerous registrations in Class 010 that are already registered.”5 The only support offered by Applicant for the “numerous registrations in Class 010,” however, was the following table it created and embedded in the body of its May 11, 2020 Response to Office Action: 5 6 TTABVUE 12 (Applicant’s Brief). Serial No. 88587564 - 7 - 6 In the next Office action that followed, the Examining Attorney informed Applicant that submitting a list of third-party registrations does not make the registrations part of the record, and that to do so, “an applicant must submit copies of the registrations, or the complete electronic equivalent from the USPTO’s automated systems, prior to appeal,” citing In re Star Belly Stitcher, Inc., 107 USPQ2d 2059, 2064 (TTAB 2013); TBMP [TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE] § 1208.02; TMEP [TRADEMARK MANUAL OF EXAMINING PROCEDURE] § 710.03.7 Although Applicant subsequently filed a request for reconsideration, Applicant did not submit copies of the listed registrations for the record.8 6 TSDR May 11, 2020 Response to Office Action at 5. 7 TSDR June 2, 2020 Office Action at 1. 8 TSDR December 2, 2020 Request for Reconsideration. Serial No. 88587564 - 8 - In its Brief, Applicant reproduces and relies on the table, arguing that it should be considered because it “was meant to speak for itself as probative, because it lists the goods and services of those registrations.”9 Applicant compares its list favorably to a list of applications and registrations in In re Peace Love World Live, LLC, 127 USPQ2d 1400 n.17 (TTAB 2018). In that case, the Board considered a list of registrations and applications because the examining attorney lodged no objection against it, but gave it “little, if any, weight” because the list did not include the goods in each registration and therefore lacked enough information to be probative. Id. According to Applicant in this case, its list includes the goods and therefore is probative. The Examining Attorney points out that unlike the examining attorney in Peace Love World, she lodged an objection to Applicant’s list, and although the list in this case includes the goods, it does not include the status of the registrations. She contends that the listed third-party registrations should not be considered, but that even if they are, they have little probative value because each case must be decided on its own facts.10 We sustain the objection, decline to consider the listed registrations, and accord the list no probative value. We agree that an indication of the current status of the registrations is relevant information to assess the weight of the registrations,11 as 9 6 TTABVUE 15 (emphasis in original). 10 Examining Attorney’s brief, 8 TTABVUE 10-11. 11 See TBMP § 1208.02 (2021) (“to make a third-party registration of record, … a copy of the registration (from either the electronic records of the Office or the paper USPTO record) showing the current status and title of the registration must be submitted.”). Serial No. 88587564 - 9 - would be the ownership, and the registration bases to determine whether the third- party registrations are based on use in commerce. To further illustrate the problematic nature of a mere list such as Applicant’s, in the second listed registration, the mark is not accurately represented.12 This shows why copies of the registration records themselves must be introduced when an applicant seeks to have such registrations considered. Applicant also requested in its Brief, in the event of an adverse evidentiary ruling as to its list of registrations, that we “remand this matter for the introduction of those registrations into evidence.”13 A request for remand “must include a showing of good cause therefor (which may take the form of a satisfactory explanation as to why the evidence was not filed prior to appeal)…” TBMP § 1207.02. Applicant offers no good cause for the request, and does not explain its failure to submit the registrations with its Request for Reconsideration, after the Examining Attorney explained the unacceptability of the list. We consider “[t]he length of the delay in making the request after the reason for the remand becomes known, or the point in the appeal process at which the request for remand is made,” and “[g]enerally, the later in the appeal proceeding that the request for remand is filed, the stronger the reason that must be given for good cause to be found.” TBMP § 1207.02. In this case, particularly 12 While Applicant’s list shown above depicts the mark as “OUR UNITED EVOLUTION,” in fact the mark is . 13 6 TTABVUE 16. Serial No. 88587564 - 10 - given the late stage of the appeal, and the lack of any good cause shown, we deny the request for remand. “[C]reation of the record to be considered in an ex parte appeal must, at some point, be concluded.” In re Zanova, Inc., 59 USPQ2d 1300, 1302 (TTAB 2001). In the absence of evidentiary support for Applicant’s contentions about third-party marks, we find the sixth DuPont factor to be neutral in the likelihood of confusion analysis.14 The cited registration is entitled to the usual scope of protection. B. Similarity of the Marks We now compare the marks “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1691 (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). We assess not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the services offered under the respective marks is likely to result. Coach Servs. v. Triumph 14 As an aside, Applicant’s reliance on the listed registrations’ identified goods reflects an incorrect assumption that all types of medical equipment – from catheters to bone cement- mixing devices – would be deemed sufficiently related for this purpose without any proof. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686 (Fed. Cir. 2018) (in the strength analysis, error to rely on third-party evidence of similar marks for dissimilar goods, as Board must focus “on goods shown to be similar”). Serial No. 88587564 - 11 - Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). We compare Applicant’s mark, REVOLUTION, to the cited mark, , and find them similar in appearance and sound. The two marks share the same first portion – REVOLU – comprising three of the four syllables of each mark. The end portions of the respective marks TION and GEN make up the final syllable in each mark and share a similar sound, ending with the same letter. Overall, the wording sounds so similar that consumers hearing these terms could mistake REVOLUGEN for REVOLUTION, and vice versa. The shared lettering in each mark (REVOLU, as well as the N at the end) contributes to the similar appearance of the marks. We consider the degree of similarity arising if Applicant’s mark, which is in standard character form, would appear in the same font, size and colors as the cited mark. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011) (a standard character mark is “entitled to depictions … regardless of font style, size, or color”); Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a) (standard character marks do not claim “any particular font style, size, or color”). For this reason, we must reject Applicant’s arguments that the marks differ based on the “specialized font” and colors in the cited mark. In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (rejecting an argument that the specific style of a registered mark could serve to distinguish the applicant’s mark in standard character form). The blue rectangle outlining the word in the cited mark is merely a background carrier that Serial No. 88587564 - 12 - does not significantly distinguish the marks visually. We find that the marks look similar overall, and bear in mind that consumers often retain a general rather than specific impression of marks. Inn at St. John’s, 126 USPQ2d at 1746; see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (for rational reasons, more or less weight may be given to a particular feature of a mark, such as a common dominant element, provided the ultimate conclusion rests on a consideration of the marks in their entireties). The marks’ connotations and commercial impressions are also similar. In the context of Applicant’s identified goods, consumers would perceive its REVOLUTION mark as a reference to “[a] sudden or momentous change in a situation,”15 suggesting that Applicant’s goods are revolutionary in the field. The cited mark REVOLUGEN looks and sounds so similar to the recognized word REVOLUTION that consumers are likely to derive a similar meaning and commercial impression from it. In the context of the goods in the registration, some of which involve the genetic materials DNA and RNA, to the extent that consumers might note the GEN portion at the end of the cited mark, they would perceive GEN as suggesting genetics. Even so, given the placement of this component in the mark overall, as part of the word REVOLUGEN, consumers nonetheless would still view the overall wording in the cited mark as a clever play on the word “revolution.” Just as with Applicant’s mark, the cited mark suggests that the goods are revolutionary in their field, although with the variation that certain goods in the cited registration may be associated with 15 TSDR November 27, 2019 Office Action at 9 (American Heritage Dictionary). Serial No. 88587564 - 13 - genetics. Therefore, the meaning and impression of each mark rests mostly on “revolution.” Given their overall resemblance in appearance, sound, connotation and commercial impression, we find Applicant’s mark and the cited mark similar. Thus, the first DuPont factor favors a finding of likelihood of confusion. C. The Goods, Trade Channels and Classes of Consumers The second and third DuPont factors address the relatedness of the goods, the trade channels in which they travel, and the classes of consumers of such goods. Under the second factor, “likelihood of confusion can be found ‘if the respective goods 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., 101 USPQ2d at 1722 (internal citations omitted). In analyzing the relatedness of the goods, we look to the identifications in the application and cited registration. See In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018); Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Turning first to the goods in International Class 1, both the application and cited registration involve goods for scientific and/or research use. We find that the cited registration’s broad identification of “chemical preparations for use in the extraction, isolation and purification of medical samples for scientific and research purposes” encompasses Applicant’s “diagnostic reagents for scientific or research use, namely, Serial No. 88587564 - 14 - for the preparation of biological fluid samples for use in liquid diagnostic testing systems to sequester target analytes of interest for isolation and characterization.”16 The goods in the cited registration include all types of chemical preparations, including diagnostic reagents, used for extracting, isolating and purifying medical samples for scientific or research use. See S.W. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (where the goods in an application or registration are broadly described, they are deemed to encompass all the goods of the nature and type described therein); In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and commercial furniture.’”). Diagnostic reagents do not necessarily have to be chemical preparations, but they can be and often are. As indicated in the definition of “reagent,” supra n.16, it can be any substance or mixture used in chemical analysis or other reactions, and so chemical preparations may comprise such substances or mixtures. For example, as reflected on screenshots in the record, the diagnostic reagents promoted on the Siemens Healthineers website are chemical preparations used to isolate nucleic acids.17 Thus, the chemical preparations identified in the cited registration can be 16 We take judicial notice that a “reagent” is defined as “[a] substance or mixture for use in chemical analysis or other reactions” and an “analyte” is defined as “[a] substance whose chemical constituents are being identified and measured.” https://www.lexico.com, accessed July 19, 2021 (sourced from the Oxford Dictionary, U.S. English version). The Board may take judicial notice of definitions from dictionaries, including online dictionaries that exist in printed format. E.g., In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018). 17 TSDR November 27, 2019 Office Action at 25-26 (siemens-healthineers.com). Serial No. 88587564 - 15 - diagnostic reagents, and their purpose of extracting, isolating, and purifying medical samples overlaps with Applicant’s reagents’ purpose of preparing biological fluid samples (a type of medical sample) for use in sequestering and isolating target substances. We turn next to Applicant’s goods in International Class 10, identified as “medical devices, namely, liquid biopsy testing systems for the preparation of biological fluid samples for use in liquid diagnostic testing systems to sequester target analytes of interest for isolation and characterization.” We find that they also overlap with goods in the cited registration. The cited registration identifies “medical apparatus and instruments for sample preparation for medical diagnostic uses,” and therefore includes all types of devices used to prepare samples for medical diagnostic use. See id. This encompasses Applicant’s medical devices (more specifically described as biopsy testing systems) used to prepare samples for diagnostic testing systems. We find that the goods in International Class 10 overlap, and therefore are legally identical. In addressing the relatedness of goods as to this cited registration, Applicant only argues that “the users of the respective products will be highly skilled and trained physicians and technicians that will readily appreciate the specific applications of the goods for which the respective REVOLUTION and the REVOLUGEN marks will be utilized.”18 Applicant does not explain how the goods differ, and in fact states that consumers would “associate the marks with separate sources of the related 18 6 TTABVUE 10 (Applicant’s Brief). Serial No. 88587564 - 16 - services.”19 Any actual differences in the goods that are not reflected in the identifications cannot be considered. “The authority is legion that 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 regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed.” Octocom Syst., 16 USPQ2d at 1787. Under the third DuPont factor, because the goods in the cited registration and the application are legally identical, we may presume that the trade channels and classes of consumers for those overlapping goods also are identical. See Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018); Viterra, 101 USPQ2d at 1908 (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion); see also Inter IKEA Sys. B.V. v. Akea, 110 USPQ2d 1734, 1743 (TTAB 2014); L. & J.G. Stickley, Inc. v. Cosser, 81 USPQ2d 1956, 1971 (TTAB 2007) (“Because the goods of both parties are at least overlapping, we must presume that the purchasers and channels of trade would at least overlap.”). Thus, the second and third DuPont factors weigh in favor of likely confusion. D. Conditions under Which and Buyers to Whom Sales Are Made The fourth DuPont factor involves “[t]he conditions under which and buyers to whom sales are made, i.e., impulse vs. careful, sophisticated purchasing.” DuPont, 19 6 TTABVUE 11 (Applicant’s Brief) (emphasis added). Serial No. 88587564 - 17 - 177 USPQ at 567. As noted above, Applicant refers to “the users of the respective products [as] highly skilled and trained physicians and technicians,” suggesting that they will engage in sophisticated purchasing.20 The third-party website evidence in the record suggests that these types of goods are purchased for medical facilities and laboratories, and we agree that because of the nature of the goods, consumers are likely to engage in a higher than ordinary degree of care in purchasing. This DuPont factor weighs somewhat against likely confusion. III. Conclusion Balancing the DuPont Factors The similarity of the marks for overlapping goods that move in the same channels of trade to the same classes of customers renders confusion likely. The first, second, and third DuPont factors support a likelihood of confusion. The fourth DuPont factor cuts the other way because purchasers of the goods would exercise a higher degree of care in purchasing. However, the fact “[t]hat the relevant class of buyers may exercise care does not necessarily impose on that class the responsibility of distinguishing between similar trademarks for similar [goods]. ‘Human memories even of discriminating purchasers . . . are not infallible.’” In re Research and Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (affirming refusal to register ROPELOK for safety fall protection equipment on basis of registration of ROPELOCK for releasable locking buckles for ropes particularly for industrial purposes) (quoting Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)). The “[s]ophistication of buyers and 20 6 TTABVUE 10 (Applicant’s Brief). Serial No. 88587564 - 18 - purchaser care are relevant considerations but are not controlling on this factual record.” Id. Consumers who are familiar with the goods under the cited mark who encounter the same type of goods under Applicant’s REVOLUTION mark, potentially in the same font and color as the cited mark, are likely to believe that the goods emanate from a single source. Decision: The refusal to register Applicant’s mark based on likely confusion with Registration No. 5409548 is affirmed.