Wieland Dental + Technik GmbH & Co.

Trademark Trial and Appeal Board

Jun 7, 2007

No. 76514103 (T.T.A.B. Jun. 7, 2007)

Hearing:
January 16, 2007
Mailed: June 7, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Wieland Dental + Technik GmbH & Co.
___________

Serial No. 76514103
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Gary M. Nath and H. David Starr of Nath & Associates for
Wieland Dental + Technik GmbH & Co.

Andrea D. Saunders, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
____________

Before Hohein, Walters and Walsh, Administrative Trademark
Judges.

Opinion by Walters, Administrative Trademark Judge:

Wieland Dental + Technik GmbH & Co. has filed an
application to register the mark REFLEX, in standard
character form, on the Principal Register for, as amended,
“ceramic masses for dental use, namely veneering material
for dental use,” in International Class 5.1

1 Serial No. 76514103, filed May 14, 2003, based on an allegation of a
bona fide intention to use the mark in commerce under Section 1B; and
based on a claim of priority under Section 44(d) and a German
registration under Section 44(e). Applicant subsequently filed an
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 76514103

2
The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
the mark REFLEX, previously registered on the Principal
Register for “orthodontic appliances for use in the mouth
formed from nickel titanium wire,”2 that, if used on or in
connection with applicant’s goods, it would be likely to
cause confusion or mistake or to deceive.
Applicant has appealed. Both applicant and the
examining attorney have filed briefs. We affirm the refusal
to register.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).

acceptable amendment to allege use alleging first use and use in
commerce as of 2003.

2 Registration No. 1476733 issued February 16, 1988, in International
Class 10, to TP Orthodontics, Inc. Sections 8 and 15 affidavits
accepted and acknowledged, respectively.

Serial No. 76514103

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In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein.
Turning, first, to the marks, there is no question that
the marks are identical. Applicant defines “reflex” as “an
innate or automatic reaction” (request for reconsideration
of November 11, 2004) and argues that the term is suggestive
of the registered goods and, thus, entitled to only a narrow
scope of protection. However, we see no basis for this
characterization of the mark on this record and find that
the term is arbitrary in connection with both applicant’s
and registrant’s identified goods.
Applicant also contends that the mark is a weak mark
due to large numbers of third-party registrations. However,
the evidence submitted in support of this contention
consists, in part, of a long list of registration numbers
for the mark REFLEX with no indication as to the nature of
the goods or other potentially relevant factors such as
disclaimers and, as such, is of little to no probative
value. Additionally, applicant submitted copies of six
Serial No. 76514103

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registrations for the mark REFLEX in International Class 10.
However, all six registrations pertain to medical
instruments unrelated to the field of dentistry,
prosthodontics, or orthodontics and, as such, are of limited
probative value. Thus, while it appears that REFLEX may be
a common mark across the wide field of medical instruments,
there is no indication that any third parties have
registered or used the mark REFLEX in connection with
dentistry, prosthodontics, or orthodontics.
Turning to consider the goods involved in this case, we
note that the question of likelihood of confusion must be
determined based on an analysis of the goods recited in
applicant’s application vis-à-vis the goods recited in the
registration, rather than what the evidence shows the goods
actually are. Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See
also, Octocom Systems, Inc. v. Houston Computer Services,
Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ2d
1715 (TTAB 1991). Further, it is a general rule that goods
need not be identical or even competitive in order to
support a finding of likelihood of confusion. Rather, it is
enough that goods are related in some manner or that some
circumstances surrounding their marketing are such that they
would be likely to be seen by the same persons under
Serial No. 76514103

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circumstances which could give rise, because of the marks
used therewith, to a mistaken belief that they originate
from or are in some way associated with the same producer or
that there is an association between the producers of each
parties’ goods. In re Melville Corp., 18 USPQ2d 1386 (TTAB
1991), and cases cited therein; and Time Warner
Entertainment Co. v. Jones, 65 USPQ2d 1650, 1661 (TTAB
2002).
The examining attorney submitted, in support of her
position that the goods are likely to emanate from the same
source, copies of third-party registrations and excerpts
from Internet websites offering dental supplies for sale.
Of the six third-party registrations submitted,3 only two
registrations are for goods that include both orthodontic
products and dental supplies such as applicant’s ceramic
veneers.
Of the seven website excerpts submitted with the final
refusal, six sites pertain to dental offices which offer
dental and orthodontic services, and four of those same
sites also offer cosmetic dentistry services. The seventh
site, NAOL Orthodontic Laboratory and Supply, is described

3 Three registrations are not based on use in commerce and, thus, are of
no probative value. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783
(TTAB 1993); and In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467 (TTAB
1988). One registration is for dental floss for various uses and is not
probative in relation to the specific goods herein. We note that the
examining attorney also submitted with the denial of the request for
reconsideration excerpts from three unidentified sources. These
submissions are of no probative value.
Serial No. 76514103

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by the examining attorney in her brief as supplying both
orthodontic and dental products. The web page submitted
includes the following two separate statements:
NAOL … is a full service orthodontic laboratory
and supply company supplying the orthodontic
community with the highest quality products
available.
[and]
Orthodontic Laboratory and Supply will supply all
dental supply needs. Orthodontics and dental
orthopedics equipment and supplies are available
to dentists, orthodontists, dental technicians,
and doctors from this high quality dental supply
and orthodontic laboratory.

Additionally, the examining attorney submitted four
website excerpts with the continuation of the final refusal,
following acceptance of the amendment to allege use, all of
which offer for sale both ceramic onlays or ceramic veneers
and orthodontic wires, among other products.
Applicant contends that there are significant
differences between the respective goods, their functions,
and the materials from which they are made. It is clear
that the respective goods themselves, and, thus, their
function, are different; and that the goods are made of
different materials. However, the question is not whether
prospective purchasers can distinguish between the goods,
but whether they will believe that the goods, identified by
identical marks, originate from the same or a related
source. Helene Curtis Industries Inc. v. Suave Shoe Corp.,
Serial No. 76514103

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13 USPQ2d 1618 (TTAB 1989); and In re Rexel, 223 USPQ 830
(TTAB 1984).
Applicant also contends that the trade channels for the
respective goods are different; that the classes of
purchasers are distinct and highly knowledgeable, i.e.,
sophisticated; and that its goods are expensive. Applicant
submitted with its brief an excerpt about dental laboratory
technicians from a Bureau of Labor Statistics handbook, as
support for its claim that the trade channels are different,
arguing that the technicians in dental laboratories purchase
and use applicant’s products in making dental prostheses and
the like, and that its products are unlikely to be purchased
by dental offices. This evidence was submitted in an
untimely manner with applicant’s brief and the examining
attorney has objected to its consideration under Trademark
Rule 2.142(d).
We agree with the examining attorney that this document
was submitted late. However, because it is a public
document prepared and distributed by the Federal government,
it is “capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b)(2). Massachusetts v. Westcott, 431
U.S. 322, 323 n. 2, 97 S.Ct. 1755, 52 L.Ed.2d 349 (1977)
(judicial notice taken of fishery licenses as reflected in
Coast Guard records). As such, it is analogous to standard
Serial No. 76514103

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reference works such as encyclopedias and dictionaries. See
In re Broyhill Furniture Industries Inc., 60 USPQ2d 1511,
1514 n. 4 (TTAB 2001 (dictionaries and other standard
reference works are amenable to judicial notice); In re
Astra Merck Inc., 50 USPQ2d 1216, 1219 (TTAB 1998) (judicial
notice taken of Physician’s Desk Reference and other PDR
publications); Sprague Electric Co. v. Electrical Utilities
Co., 209 USPQ 88 (TTAB 1980) (judicial notice taken of
standard reference work). See also U.S. v. Bailey, 97 F.3d
982, 985 (7th Cir. 1996) (judicial notice taken of facts
from Census Bureau’s Statistical Abstract of the United
States); Goldblatt v. F.D.I.C., 105 F.3d 1325, 1329 n. 3
(9th Cir. 1997) (judicial notice taken of Congressional
Record for statements made during debate); and Knox v.
Butler, 884 F.2d 849, 852 n. 7 (5th Cir. 1989) (judicial
notice appropriately taken of census data). Thus, the
contents of this publication are amenable to judicial notice
and we exercise our discretion to take judicial notice of
the relevant statements therein as these statements
constitute “adjudicative facts” appropriate for judicial
notice. In particular, the following statements are
relevant:
In some laboratories, technicians perform all
stages of the work, whereas, in other labs, each
technician does only a few. Dental laboratory
technicians can specialize in 1 of 5 areas:
Orthodontic appliances, crowns and bridges,
complete dentures, partial dentures, or ceramics.
Serial No. 76514103

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. . .
Around 7 out of 10 jobs were in medical equipment
and supply manufacturing laboratories ….
. . .
Some dental laboratory technicians work in offices
of dentists. Others work for hospitals providing
dental services ….

We find the record sufficient to support the conclusion
that general dental, cosmetic dental and orthodontic
services may be offered in the same office and, as such, the
supplies for these services are likely to be purchased by
the same office, regardless of whether the same persons
within that office make use of the same supplies. There is
also sufficient evidence in the record to find that both
dentists and orthodontists utilize the services of dental
technicians, both within their offices and from
laboratories; that the supplies used by dentists,
orthodontists and dental technicians are at least
overlapping; and that supplies, including those of applicant
and registrant, may be purchased by dentists, orthodontists
and/or dental technicians from the same sources.
This establishes that, while the respective goods are
not the same, they are available from the same sources and
are sold to overlapping classes of purchasers, i.e., dental
and orthodontic professionals and technicians. Thus, we
find that the goods are sufficiently related that, when
identified by identical marks, confusion as to source will
be likely. Similarly, the purchasers and channels of trade
Serial No. 76514103

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for the respective goods are overlapping, if not the same.
The goods, at least applicant’s goods, may be somewhat
expensive, so it is likely that a certain degree of care
will be used. However, even sophisticated purchasers are
susceptible to source confusion, particularly under
circumstances where, as here, the goods are dental products
sold through overlapping trade channels under identical
marks. 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."). See
also Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ
289 (CCPA 1962); and In re Pellerin Milnor Corp., 221 USPQ
588 (TTAB 1983).
Therefore, we conclude that in view of the identical
REFLEX marks of applicant and registrant, their
contemporaneous use on the related goods involved in this
case is likely to cause confusion as to the source or
sponsorship of such goods.
Decision: The refusal under Section 2(d) of the Act is
affirmed.