Aesgen, Inc.

Trademark Trial and Appeal Board

Jul 25, 2006

No. 76500182 (T.T.A.B. Jul. 25, 2006)

Mailed:
July 25, 2006
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Aesgen, Inc.
________

Serial No. 76500182
_______

Charles E. Steffey of Schwegman Lundbert Woessner & Kluth,
P.A. for Aesgen, Inc.

Kim Saito, Trademark Examining Attorney, Law Office 102
(Thomas V. Shaw, Managing Attorney).
_______

Before Bucher, Drost and Cataldo, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Aesgen, Inc. seeks registration on the Principal
Register of the mark PROTORIS (in standard character form)
for goods identified in the application as follows:
“pharmaceutical preparations for the
treatment of mucositis and inflammation of
mucous membranes” in International Class 9.1
This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register applicant’s mark based upon Section 2(d) of the

1 Application Serial No. 76500182 was filed on March 25, 2003
based upon applicant’s allegation of a bona fide intention to use
the mark in commerce.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Serial No. 76500182
- 2 -
Trademark Act, 15 U.S.C. § 1052(d). The Trademark Examining
Attorney has found that applicant’s mark, when used in
connection with the identified goods, so resembles the mark
PROTEROS (in standard character form), which is registered
for, inter alia, “herbicides, pesticides, fungicides, all
for agricultural, domestic, and commercial uses;
dietary/nutritional supplement; preparations for destroying
vermin; food for babies” also in International Class 5,2 as
to be likely to cause confusion, to cause mistake or to
deceive.
Applicant and the Trademark Examining Attorney have
fully briefed this appeal, but applicant did not request an
oral hearing. We affirm the refusal to register.
Applicant argues that these two marks are not similar
as to sound or appearance; that its goods are dissimilar
from registrant’s identified goods in International Class 5;
that the Trademark Examining Attorney has failed to
demonstrate that applicant’s narrow pharmaceutical niche
involves the same trade channels as registrant’s
dietary/nutritional supplements, for example; and that the
cited mark is not particularly distinctive.

2 Registration No. 2611116 issued to Torsten Neuefeind, a
German citizen, on August 27, 2002, registered under Section
44(e) of the Act based upon German Reg. No. 39836197.
Serial No. 76500182
- 3 -
By contrast, the Trademark Examining Attorney argues
that the marks are similar as to sound and appearance, that
“manufacturers routinely sell both pharmaceuticals and
dietary supplements under the same mark,” and hence, that
consumers encountering applicant’s mark and the cited mark
in the marketplace are likely to mistakenly believe that the
goods derive from a common source.
Preliminary matters
The Trademark Examining Attorney has objected to
applicant’s list of third-party registrations. She is
correct in noting that this Board does not take judicial
notice of registrations that reside in the United States
Patent and Trademark Office (USPTO), and that a submission
of a list of registrations is insufficient to make them of
record. In re Duofold Inc., 184 USPQ 638 (TTAB 1974).
Third party registrations may be made of record when
accompanied by legible, soft copies of the registrations
themselves or the electronic equivalent thereof, i.e.,
printouts of the registrations from the electronic records
of the USPTO’s automated search system. Weyerhaeuser Co. v.
Katz, 24 USPQ2d 1230 (TTAB 1992). Moreover, the record in
any application must be complete prior to appeal. 37 C.F.R.
§ 2.142(d); TMEP § 710.01(c); TBMP §§ 1207.01 et seq. See
Serial No. 76500182
- 4 -
also In re Psygnosis Ltd., 51 USPQ2d 1594 (TTAB 1999).
Contrary to applicant’s position in its brief, we do not
believe justice requires a remand to the Trademark Examining
Attorney so that the applicant may submit copies of these
third-party registrations. Accordingly, we have given
applicant’s listing of registrations no consideration in
reaching our determination herein.
Analysis: Likelihood of Confusion
Our determination under Section 2(d) is based upon an
analysis of all of the 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 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the relationship of the
goods. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
The marks
We turn first to the du Pont factor focusing on the
similarity of the marks in their entireties. We must
consider whether the marks are similar in sound, appearance,
meaning, and commercial impression. Palm Bay Imports Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
Serial No. 76500182
- 5 -
1369, 73 USPQ2d 1689 (Fed. Cir. 2005). Although applicant
argues that these two marks are not similar, the Trademark
Examining Attorney argues that applicant’s mark is similar
to the registered mark in sound and appearance:
The marks in question could clearly be
pronounced the same. Similarity in sound
alone may be sufficient to support a finding
of likelihood of confusion. RE/MAX of
America, Inc. v. Realty Mart, Inc., 207 USPQ
960, 964 (TTAB 1980); Molenaar, Inc. v. Happy
Toys Inc., 188 USPQ 469 (TTAB 1975); In re
Cresco Mfg. Co., 138 USPQ 401 (TTAB 1963);
TMEP §1207.01(b)(iv).

Applicant’s mark is PROTORIS and Registrant’s
mark is PROTEROS. The prefix PRO could have
the same pronunciation in both marks. The
“TOR” portion of PROTORIS and the “TER”
portion of PROTEROS could have the same
pronunciation given that “TOR” can be
pronounced as it is in DOCTOR. The “RIS”
portion of PROTORIS and the “ROS”
pronunciation of PROTEROS could have the same
pronunciation given that “ROS” can be
pronounced as it is in RHINOCEROS.

The marks may not only have similar
pronunciations, they are visually similar.
PROTORIS and PROTEROS have the same
consonants in the same order and are
separated by single vowels. In addition,
both Applicant and Registrant’s marks are in
typed form. Thus, there are no design
elements to aid in distinguishing the marks.

Trademark Examining Attorney’s brief, pp. 4 – 5.
While applicant argues that the “different fifth and
seventh vowels in both the marks” would “require a
substantially different pronunciation for each mark,” we
agree with the Trademark Examining Attorney that there is no
Serial No. 76500182
- 6 -
correct pronunciation of either term. See Kabushiki Kaisha
Hattori Tokeiten v. Scuotto, 228 USPQ 461 (TTAB 1985); In re
Great Lakes Canning, Inc., 227 USPQ 483 (TTAB 1985); In re
Teradata Corp., 223 USPQ 361, 362 (TTAB 1984); and In re
Mack, 197 USPQ 755 (TTAB 1977). Additionally, the Trademark
Examining Attorney has provided examples of English language
words having identically-spelled syllables pronounced in
such a way that these two marks could well be pronounced
identically. As to appearance, this difference in two
similar vowels at the fifth and seventh places in eight-word
marks are outweighed by the identical nature of the other
six letters. Both marks appear to be coined terms, so there
is no apparent difference in connotation. We find that
these two marks will create the same commercial impression
such that any minor differences in appearance may well be
overlooked. Accordingly, this du Pont factor favors the
position of the Trademark Examining Attorney.
The number and nature of similar marks
As to the du Pont factor focusing on the number and
nature of similar marks in use on similar goods, applicant
argues “that there are thousands of marks registered for use
on goods in International Class 005 with the PRO prefix.
There are also 21 marks in Class 005 with the ORIS prefix
Serial No. 76500182
- 7 -
[sic]. PROTEROS is not a highly distinctive mark.”
(footnotes omitted). However, even if the purported
evidence made the case that two separate components
comprising the entirety of registrant’s mark were both weak
in International Class 5 (which it does not),3 as noted
above, we have not considered applicant’s listing of third-
party registrations, and hence, there is no probative
evidence in the record suggesting that this is a weak mark
as applied to registrant’s goods. Hence, this du Pont
factor also favors the position taken by the Trademark
Examining Attorney.
The goods
Accordingly, we turn to the du Pont factor focusing on
the relationship of the goods as described in the
application and cited registration.
The Trademark Examining Attorney is correct in noting
that goods need not be identical in order to support a
finding of likelihood of confusion, provided that consumers
would believe that there is some relationship between
registrant’s broadly-identified type of dietary/nutritional

3 The prefix “pro-” and the suffix “-oris” do not even
comprise the whole of applicant’s “Protoris” mark, to say nothing
about the final two syllables of registrant’s “Proteros” mark:
“teros” -- the relevant suffix that one would combine with the
prefix “pro-” in order to focus on the strength of the cited
mark.
Serial No. 76500182
- 8 -
supplement and applicant’s more narrowly-identified type of
“pharmaceutical preparation.”
Applicant notes the breadth of the goods and services
in the cited registration.4 In this context, applicant
argues that its narrowly-identified pharmaceutical products
are quite different from registrant’s identified goods, even
those in International Class 5. In further support of its
position, applicant cites to the home page of registrant’s
website,5 which:
“ … shows that the PROTEROS mark is mainly
used in the preparation and three-dimensional
structural analysis of proteins for the
structure-guided drug design. The registrant
is apparently mainly a third party service
provider of research services for well-known
life science and biotech companies which
PROTEROS conducts research on its own
account. Applicant strongly reiterates that
the registrant’s goods should not be

4 In addition to the goods listed above in International Class
5, we note that the cited registration contains three other
classes of goods and services:
“chemicals used in the biochemical and biotechnological
research and development field, namely, chemicals for use in
the analysis of the structure and function of proteins and
lead compounds; non-natural amino acids” in International
Class 1;
“scientific testing apparatus and instruments for the
analysis of the structure and function of proteins, namely,
specimen holders for the analysis of protein crystals under
a humidity controlled environment; computer programs for use
in the analysis of the structure and function of protein and
lead compounds” in International Class 9; and
“scientific research, laboratory research in the field of
chemistry, biochemistry and biotechnology and drug discovery
and drug development; computer programming for others” in
International Class 42.
5 http://www.proteros.de/english/
Serial No. 76500182
- 9 -
construed so broadly as to block registration
of applicant's mark.”

Applicant argues from this extrinsic evidence that
registrant is primarily a third-party provider of research
services.
By contrast, the Trademark Examining Attorney claims
that applicant’s goods are related to registrant’s goods.
In asserting this, she has taken the position that extrinsic
evidence regarding the nature of registrant’s actual goods
and services may not be used to limit the protection
accorded to registrant by its registration.
We agree with the Trademark Examining Attorney. It is
well settled that the likelihood of confusion determination
must be made on the basis of the identification of goods as
set forth in the involved application, compared with the
identification of goods contained in the cited registration,
rather than on the basis of what the evidence might show the
applicant’s or registrant’s actual goods or services to be.
See Octocom Systems Inc. v. Houston Computer Services Inc.,
918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1990) and Canadian
Imperial Bank of Commerce, N.A. v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987).
In support of her position, the Trademark Examining
Attorney included in the record copies of excerpts from
Serial No. 76500182
- 10 -
websites on the Internet showing that various supplements
are used to treat mucositis:

Radiation Therapy Side Effects: Esophagitis and Mucositis
…
Will radiation therapy change my sense of taste?
Your sense of taste may change during radiation treatments. Different
foods may seem to taste the same, have a slightly bitter taste or not have any
taste at all. Despite changes in your sense of taste, it is very important to
continue eating well-balanced meals and avoid losing weight.
Foods that are slightly chilled (flavored gelatin, pudding, and applesauce)
may be tolerated better.
Meat commonly becomes distasteful after several weeks of treatment. If
you are unable to eat meat because it is distasteful, be sure that you have
another protein source in your diet. Try eating more fish, poultry, eggs, cheese
and milk.
Adding protein supplements to your meal plan usually becomes
necessary when your sense of taste changes. A registered dietitian can
recommend a supplement brand to meet your nutritional needs.6

- o O o -

Herbs & Supplements
CHAMOMILE -- Other Names: Anthemis nobilis, Genuine chamomile,
German Chamomile, Hungarian chamomile, Matricaria chamomilla, Roman
Chamomile
Who is this for?
Uses
Note: Many different species of chamomile grow throughout the world.
The type commonly available in the United States is known as German chamomile
(Matricaria chamomilla). It is slightly different from the Roman or English
chamomile (Chamaemelum nobilis or Anthemis nobilis) that is more common in
Europe. While these two plants belong to different species, they are closely
related and both are used for similar conditions.
In the United States, oral chamomile is used primarily for relaxation and
sleep. However, its reputation is based mainly on tradition. Few human studies
have been conducted to evaluate chamomile. However, it has shown some
sedating and anti-anxiety effects for laboratory animals. In one study, chamomile
attached to receptors in the body that are also the targets of prescription sedative
medications. Low doses produced a calming effect, while higher doses were
more likely to cause sleep.
Chamomile also has antispasmodic effects, which means it may relieve or
prevent uncomfortable muscle contractions ― especially in the gastrointestinal
tract. Therefore, it has also been used to treat minor gastrointestinal complaints

6 http://www.clevelandclinic.org/health/health-info/docs/0600/0610.asp?
Serial No. 76500182
- 11 -
such as gas, motion sickness, and stomach cramps. Bisabolol, one of the
chemicals in chamomile has shown antispasmodic activity in studies of laboratory
animals. A small study of infants with colic showed that a tea containing
chamomile and four other herbal ingredients relieved symptoms of colic about
twice as often as a liquid with no active ingredients. All the children in the study
were over two weeks old.
Chamomile is also thought to have a soothing effect on the tissues inside
the mouth, nose, and throat. Sometimes, chamomile is boiled in water and the
steam is inhaled to relieve a stuffy nose or congested chest. A chamomile
mouthwash has been tested in clinical studies for the relief of mucositis ―
painful mouth sores that may develop in patients receiving radiation or drug
therapy for cancer. Results are conflicting, however. In one study of about 100
cancer patients, a chamomile mouth rinse helped to prevent, delay, or lessen the
occurrence of mucositis; but no particular benefit was seen in a later study.
More research is needed for all of the potential oral uses of chamomile….7

- o O o -

06.10.04 -- Vitamin E Prevents Painful Radiation Therapy Side Effect
Following surgery, radiation therapy is often the sole treatment for mouth
and throat cancers. Inflammation and ulceration of the inside of the mouth,
known as mucositis, is among the most common negative side effects of
radiation therapy to this part of the body. It is often necessary to interrupt
radiation therapy when mucositis develops because it is extremely painful and
can make eating difficult. Interrupted treatments and poor nutrition resulting
from the inability to eat can both decrease the likelihood of recovery from cancer.
So, prevention and treatment of painful mucositis that results from radiation
therapy may play an important role in the success of radiation treatments in
people with cancer.
By Maureen Williams, ND
Healthnotes Newswire (June 10, 2004) — Taking vitamin E can reduce the
likelihood and severity of painful mouth inflammation frequently caused by
radiation therapy, according to Head and Neck (2004; 26:313–21). Mouth sores
are a common and serious radiation therapy side effect in people being treated
for mouth and throat cancers.
Vitamin E is an antioxidant nutrient found in foods such as vegetable oils,
nuts, seeds, and whole grains. It prevents and repairs damage to cells in the
body caused by oxygen free radicals. Free-radical damage is believed to be the
cause of radiation-induced oral mucositis. Chemotherapy is also known to
cause mucositis. Two previous studies have found that vitamin E applied
directly to the mouth can speed the healing of mucositis in people receiving
chemotherapy.
Fifty-four people with cancers of mouth or throat, for whom radiation
therapy was the only prescribed treatment, enrolled in the current study. They
were randomly assigned to receive either 400 IU of vitamin E two times per day
or a placebo containing 500 mg of evening primrose oil two times per day, which
was not expected to show any benefit. Participants were instructed to dissolve

7 http://www.drugdigest.org/DD/DVH/HerbsWho/0,3923,4054|Chamomile,00.html
Serial No. 76500182
- 12 -
each capsule and hold the oil in their mouth for five minutes, then swallow,
before radiation treatment and again 8 to12 hours later. This regimen was
followed five days per week for seven weeks. At the end of the study, fewer
people receiving vitamin E than placebo had experienced painful mucositis:
21.6 versus 33.5%. Furthermore, pain and eating restrictions were significantly
less in those receiving vitamin E than in those receiving placebo.
The results of this study show that vitamin E can be useful in preventing
and reducing the severity of mucositis, a major side effect of radiation therapy.
Vitamin E is an inexpensive addition to a treatment plan for mouth and throat
cancers. Comparing the effectiveness of vitamin E to combinations of
antioxidants will be helpful in the future. 8

- o O o -

Effect of vitamin B12, folate, and dietary supplements on breast
carcinoma chemotherapy -- induced mucositis and neutropenia. Branda RF,
Naud SJ, Brooks EM, Chen Z, Muss H. Department of Medicine, University of
Vermont, Burlington 05401, USA. rbranda@zoo.uvm.edu
BACKGROUND: Although patients with malignant disease frequently use
dietary supplements, the effects of these agents with regard to chemotherapy are
unclear.
Therefore, the authors investigated the influence of vitamin B12, folate,
and nutritional supplements on chemotherapy-induced toxicity.
METHODS: Women with breast carcinoma were asked to complete a
questionnaire that recorded their use of dietary supplements. Blood samples
were obtained for the assessment of serum vitamin B12 and folate levels before
and after the first cycle of chemotherapy and for weekly complete blood counts.
Toxicity was evaluated by measuring absolute neutrophil counts and the
frequency and severity of oral mucositis.
RESULTS: Of the 49 women who submitted questionnaires, 35 (71%)
took a combined total of 165 supplements. Compared with patients in a previous
study (performed in 1990), patients in the current study had dramatically
increased serum folate levels.
Initial neutrophil count, but not type of chemotherapy, patient age, or
serum vitamin B12 level, was predictive of nadir absolute neutropenia and the
decrease from initial neutrophil count to nadir (Nfall).
After adjusting for initial neutrophil count, Nfall was found to be lower for
women who were taking supplements compared with women who were not
taking supplements (P = 0.01) and for women who were taking multivitamins (P
= 0.01) or vitamin E (P = 0.03).
Women with serum folic acid levels < 20 ng/mL had a smaller decrease in
neutrophil count after chemotherapy than did women with higher folate levels (P
= 0.04).

8 http://www.nowfoods.com/index.php?action=itemdetail&item_id=39292
Serial No. 76500182
- 13 -
No significant association between oral mucositis and initial neutrophil
count, nadir neutrophil count, Nfall, age, vitamin B12 level, or folate level was
found.
CONCLUSIONS: The decrease in neutrophil count caused by
chemotherapy was ameliorated by dietary supplementation with a multivitamin or
vitamin E. In contrast, high serum folate levels were associated with the
exacerbation of this decrease in neutrophil count.
Cancer. 2004 Sep 1; 101(5): 1058-64.
PMID: 15329916 [PubMed - indexed for MEDLINE]
Excerpts from the Reuters Health story by Alison McCook:
Women who took a nutritional supplement, a multivitamin or extra vitamin
E had a smaller drop in neutrophils, white blood cells that help fight bacterial
infections. However, women with relatively high levels of B-vitamin folate had a
larger drop in neutrophils.
Study author Dr. Richard F. Branda cautioned that chemotherapy patients
should first discuss taking supplements with their doctors, because some
supplements may interfere with treatment. For instance, cod liver oil and St.
John's Wort may interfere with blood thinning drugs, hormone treatment or
chemotherapy.
However, studies have also shown that vitamin E may enhance the
benefits and reduce the side effects of chemotherapy, and many doctors now
recommend vitamin therapy during treatment.
Remember we are NOT Doctors and have NO medical training. 9

- o O o -

These Internet excerpts demonstrate that ongoing
studies are being conducted on the therapeutic effects of
alternative medicines such as supplements, vitamins and teas
on mucositis caused by radiation treatment.
The Trademark Examining Attorney also provided for the
record a variety of third-party registrations from entities
that have registered the same mark on or in connection with
dietary supplements and pharmaceuticals to treat
inflammation, including that from mucous membrane diseases:
RELIANT for “house mark for a full line of
h ti l d bi h ti l

9 http://annieappleseedproject.stores.yahoo.net/mulehelbreas.html
Serial No. 76500182
- 14 -
PHARMACEUTICALS preparations for the prevention and
treatment of human diseases and disorders,
namely allergy medications, analgesics,
anti-infectives, anti-neoplastics,
cardiovascular pharmaceuticals, dietary
supplements, gastro-intestinal treatment
preparations, pharmaceutical preparations
for the prevention and treatment of human
metabolic disorders, neotherapeutic
pharmaceuticals, respiratory
pharmaceuticals, skin and mucous membrane
pharmaceuticals, hormones and
endocrinological pharmaceuticals, blood
modifiers and nasal and otic
pharmaceuticals” in International Class 5;10

for “pharmaceutical and biopharmaceutical
preparations for the prevention and
treatment of human diseases and disorders,
namely allergy medications, analgesics,
anti-infectives, anti-neoplastics,
cardiovascular pharmaceuticals, dietary
supplements, gastro-intestinal treatment
preparations, pharmaceutical preparations
for the prevention and treatment of human
metabolic disorders, neurotherapeutic
pharmaceuticals, respiratory
pharmaceuticals, skin and mucous membrane
pharmaceuticals, hormones and
endocrinological pharmaceuticals, blood
modifiers and nasal and otic pharmaceuticals
in International Class 5.11
PERNATON for “dietary products for medical use,
namely, dietary supplements, vitamins,
minerals, amino acids, enzymes, glucosamine
complex, chondroitin complex, and herbal
extracts, all for helping to maintain
mobility of joints and for use in the
treatment of joint pain and inflammation,
sprains, strains, muscle fatigue, sports
injuries, muscle cramps, tennis elbow, leg
cramps, backache, rheumatic discomfort,
sciatica, lumbago, arthritis, muscle ache,
cellulite, migraines and headaches, skin
irritation and insect bites, pharmaceutical
preparations for helping to maintain mobility
of joints and for use in the treatment of

10 Registration No. 2669624 issued on December 31, 2002,
claiming first use anywhere and first use in commerce at least as
early as July 2002. The word “Pharmaceuticals” is disclaimed
apart from the mark as shown.
11 Reg. No. 2664070 issued on December 17, 2002 claiming first
use anywhere and first use in commerce at least as early as
January 2000.
Serial No. 76500182
- 15 -
joint pain and inflammation, sprains,
strains, muscle fatigue, sports injuries,
muscle cramps, tennis elbow, leg cramps,
backache, rheumatic discomfort, sciatica,
lumbago, arthritis, muscle ache, cellulite,
migraines and headaches, skin irritation and
insect bites” in International Class 5;12

for “pharmaceuticals, preparations for the
treatment of acne, anemia, arthritis, asthma,
bacterial infections, cold and cough,
constipation, dandruff, diarrhea, diseases of
the central nervous system, fever, fungal
infections, hemorrhoids, herpes, heartburn,
inflammation, intestinal gas, migraines,
nasal and sinus congestion, nausea, poor
respiration, respirator infections, sore
throat, stomach ache, mouth pain caused by
teething; and muscle pain; pharmaceutical
preparations for the prevention of acne,
anemia, arthritis, asthma, bacterial
infections, cold and cough, constipation,
dandruff, diarrhea, diseases of the central
nervous system, fever, fungal infections,
hemorrhoids, herpes, heartburn, inflammation,
intestinal gas, migraines, nasal and sinus
congestion, nausea, poor respiration,
respiratory infections, sore throat, stomach
ache, mouth pain caused by teething, and
muscle pain; amino acids for use as
nutritional supplements; anesthetic for
surgical purposes; topical anesthetics;
anesthetics for non-surgical use;
antibiotics; antibiotic creams; antibiotic
ointments; antibiotic tablets; antihistamines
and antihistamine combinations in the nature
of cold and allergy remedies; calcium
supplements for the treatment of
osteoporosis; calcium supplements for the
prevention of osteoporosis; cardiovascular
pharmaceuticals; contraceptive forms;
contraceptive sponges; oral contraceptives;
dental needs, namely medicated mouthwash;
dental needs, namely dental abrasives; dental
needs, namely dental amalgams; dental needs,
namely dental bleaching gels, dental needs,
namely dental impression materials; dental
needs, namely medicated tooth paste; room
deodorants; diagnostic reparations for
clinical or medical laboratory use; diaper
rash ointment; diet aids, namely diet
capsules and diet pills; electrolyte
replacement solutions; electrolyte
repla ement tablets; enzymes for use as a

12 Reg. No. 2384662 issued on September 12, 2000 under Section
44(e) of the Act based on Swiss Reg. No. 421977.
Serial No. 76500182
- 16 -
dietary supplement; eye drops; eye ointments;
medicated foot powder; medicated hair growth
stimulants; non-medicated hair growth
stimulants; gel for use as personal
lubricant; pregnancy test kits for home use;
medicated hair shampoo; medicated skincare
preparations; sleep aids namely sleeping
pills and tablets; vaginal preparations,
namely anti- fungals; medicated nailcare and
nosecare preparations; and nutraceutical,
herbal and dietary supplements” in
International Class 5;13
VISIONQUEST for “vitamins, mineral supplements, herbal
supplements, nutriceutical formulations, and
homeopathic pharmaceuticals for use in
supporting the body for optimal health and
longevity, for use in stimulating the body's
natural defense systems, for use to control
weight and for use in the treatment of colds,
flu, sinus problems, pain relief, allergies
and hay fever, cough and bronchial problems,
diarrhea, inflammation, arthritis, injuries
and trauma, gastrointestinal problems,
depression, chronic fatigue, stress, heart
and arterial disease, sexual dysfunction,
irritability, thymus malfunction, urinary
problems, sleeplessness, hormonal imbalance,
infections, anti-aging, weight gain, muscle
tone; and medicated skin care preparations”
in International Class 5;14
FLORA VERA for, inter alia, “pharmaceutical preparations
for the treatment of aches and pains, acid
reflux, acidity, acne, allergic conditions,
anemia, anxiety, arthritis, asthma, athlete's
foot, blood and circulation problems, blood
pressure, breath odor and halitosis,
bronchitis, bruises and sprains, congestion,
constipation, coughs, cramps, dandruff,
dental plaque, depression, dermatitis,
diabetes, diaper rash, diarrhea, digestive
problems, ear infection, eczema, exhaustion,
fevers, gastritis, gynecological problems,
hair loss, hay fever, head lice, headaches
and migraines, heart blood and circulation
problems, heartburn, hemorrhoids, high blood
pressure, high cholesterol, hyperactivity,
weak immune system, inflammation, insect
stings and bites, insomnia, nausea and

13 Reg. No. 2633870 issued on October 15, 2002, claiming use
anywhere at least as early as July 1996 and use in commerce at
least as early as December 1996.
14 Reg. No. 2679475 issued on January 28, 2003, claiming use
anywhere at least as early as November 1, 1998 and use in
commerce at least as early as March 1, 1999.
Serial No. 76500182
- 17 -
vomiting, premenstrual syndrome, psoriasis,
seborrheic dermatitis, sinusitis, sore
throat; sunburn, teething, tension, sore
throat tonsillitis, ulcers, urinary
incontinence, urinary tract infection, and
warts; dietary supplements adapted for
medical use” in International Class 5;15
PHYTOSYNERGIST for “pharmaceutical, herbal, medicinal and
homeopathic preparations for general well-
being and therapeutic applications for
treating a variety of conditions, namely,
migraines and headaches, coughs and colds,
influenza, acute upper respiratory tract
infections and inflammations, and other
respiratory problems, acute sinusitis,
chronic rhinitis, chronic bronchitis,
bronchial congestion, pleurisy, tonsillitis,
laryngitis, asthma, allergic conditions, skin
conditions, urticaria, eczema, psoriasis,
acne, boils, gout, rheumatoid arthritis and
other chronic inflammatory conditions, liver
function disorders, urinary tract infections
and inflammatory conditions, and other
urinary tract conditions, cystitis,
dysfunctional uterine bleeding, uterine
prolapse, menopausal symptoms, painful
menstruation, intestinal problems, gastric
ulcer, duodenal ulcer, gastritis, gastric
hyperacidity, gastric reflux, poor digestion,
colic, food intolerances, irritable bowel,
flatulence, bad breath, stress, anxiety,
sleeping disorders, physical exhaustion,
debility, anaemia and chronic fatigue
syndrome; analgesics; anti-infectives,
antibiotics, antivirals; antiparasitics;
antiseptics; medicated skincare preparations;
antidepressants; vitamins; dietary, food,
herbal, mineral and nutritional supplements;
food for medically restricted diets; herbal
teas for medicinal purposes” in International
Class 5;16
HEALTHA2Z for “pharmaceutical preparations for the
treatment of acne, anemia, arthritis, asthma,
bacterial infections, cold and cough,
constipation, dandruff, diarrhea, diseases of
the central nervous system, fever, fungal
infections, hemorrhoids, herpes, heartburn,
inflammation, intestinal gas, migraines,

15 Reg. No. 2528509 issued on January 8, 2002 claiming use
anywhere and use in commerce at least as early as September 1,
2000.
16 Reg. No. 2784649 issued on November 18, 2003, claiming use
anywhere at least as early as July 14, 1995 and use in commerce
at least as early as January 29, 2001.
Serial No. 76500182
- 18 -
nasal and sinus congestion, nausea, poor
respiration, respiratory infections, sore
throat, stomach ache, mouth pain caused by
teething; and muscle pain pharmaceutical
preparations for the prevention of acne,
anemia, arthritis, asthma, bacterial
infections, cold and cough, constipation,
dandruff, diarrhea, diseases of the central
nervous system, fever, fungal infections,
hemorrhoids, herpes, heartburn, inflammation,
intestinal gas, migraines, nasal and sinus
congestion, nausea, poor respiration,
respiratory infections, sore throat, stomach
ache, mouth pain caused by teething, and
muscle pain; amino acids for use as
nutritional supplements; anesthetic for
surgical purposes; topical anesthetics;
anesthetics for non- surgical use;
antibiotics; antibiotics; antibiotic creams;
antibiotic ointments; antibiotic tablets;
antihistamines and antihistamine combinations
in the nature of cold and allergy remedies;
calcium supplements for the treatment of
osteoporosis; calcium supplements for the
prevention of osteoporosis; cardiovascular
pharmaceuticals; contraceptive foams;
contraceptive sponges; oral contraceptives;
dental needs, namely medicated mouthwash;
dental needs, namely dental abrasives; dental
needs, namely dental amalgams; dental needs,
namely dental bleaching gels; dental needs,
namely dental impression materials; dental
needs, namely medicated tooth paste; room
deodorants; diagnostic preparations for
clinical or medical laboratory use; diaper
rash ointment; diet aids, namely diet
capsules and diet pills; electrolyte
replacement solutions; electrolyte
replacement tablets; enzymes for use as a
dietary supplement; eye drops; eye ointments;
medicated foot powder; medicated hair growth
stimulants; non-medicated hair growth
stimulants; gel for use as personal
lubricant; pregnancy test kits for home use;
medicated hair shampoo; medicated skincare
preparations; sleep aids, namely sleeping
pills and tablets; vaginal preparations,
namely anti-fungals; medicated nailcare and
nosecare preparations; and nutraceuticals for
use as dietary supplements; and herbal
supplements” in International Class 5;17

17 Reg. No. 2805770 issued on January 13, 2004 claiming use
anywhere and use in commerce at least as early as February 13,
2001.
Serial No. 76500182
- 19 -
SPRAYOLOGY for “homeopathic preparations for the
treatment of respiratory conditions, skeletal
and connective tissue conditions, digestive
and intestinal conditions, low libido,
symptoms of aging, poor memory, menopausal
conditions, menstruation conditions, skin
conditions, emotional stress conditions,
organ therapy, inflammation, environmental
pollution and detoxification conditions, pain
and neuralgia, weight control, insect bites,
jet lag, all for human use dietary supplement
preparations for the delivery of vitamins and
minerals; all for human use” in International
Class 5;18

These third-party registrations, which are based on use
in commerce, and which individually cover a number of
different items, provide some support for the Trademark
Examining Attorney’s position that dietary/nutritional
supplement and pharmaceutical preparations for the treatment
of mucositis are related because they show that these goods
have been registered by the same source under the same mark.
See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6
(TTAB 1988) [Although third-party registrations “are not
evidence that the marks shown therein are in use on a
commercial scale or that the public is familiar with them,
[they] may have some probative value to the extent that they
may serve to suggest that such goods or services are the
type which may emanate from a single source”]. See also In
re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1786 (TTAB
1993).

18 Reg. No. 2891401 issued on October 5, 2004 claiming use
anywhere and use in commerce at least as early as March 1, 2000.
Serial No. 76500182
- 20 -
We must deem the registrant’s goods to include
dietary/nutritional supplements that might be directed to
the treatment of mucositis and inflammation of mucous
membranes. From these third-party registrations, we
conclude that pharmaceutical preparations as well as certain
dietary/nutritional supplements are used to treat
inflammation, including the inflammation of mucous
membranes. As argued by the Trademark Examining Attorney,
it appears as if some entities have applied the same mark to
pharmaceuticals and supplements. While the category of
“pharmaceutical preparations” (applicant’s goods) may not
overlap with “dietary/nutritional supplements” (registrant’s
goods), they are clearly related goods.
Accordingly, given the relationship of these goods as
potentially alternative treatment methods for mucositis and
inflammation of mucous membranes, this du Pont factor favors
the position taken by the Trademark Examining Attorney.
Channels of Trade
As to the du Pont factor focusing on the similarity or
dissimilarity of established, likely-to-continue trade
channels, it is clear from the third-party registrations
that some of the same manufacturers apply the same mark to
ethical pharmaceuticals and supplements. Even if not the
Serial No. 76500182
- 21 -
same, it must be presumed that they move in all appropriate
channels of trade and to all appropriate customers for those
goods as identified, and hence could be sold in the same
retail outlets, e.g., drugstores, and purchased by the same
class of persons, i.e., purchasers of medical preparations
for the treatment of mucositis and inflammation of mucous
membranes. If these purchasers were to encounter the
products under the same or similar marks, it would not be
unreasonable for them to assume, mistakenly, that they
originate from the same source. In re Elbaum, 211 USPQ 639
(TTAB 1981). Hence, this factor too favors the position
taken by the Examining Attorney.
Conditions of Sale
As to the du Pont factor focusing on the conditions
under which and buyers to whom sales are made, i.e.,
“impulse” versus careful, sophisticated purchasers,
applicant contends that inasmuch as “purchasers from
Registrant must be careful to avoid confusing Registrant’s
PROTEROS rat poisons from PROTEROS baby food,” … “it is
axiomatic that such purchasers would be capable of
distinguishing PROTORIS pharmaceuticals for the treatment of
mucositis and inflammation of mucous membranes from PROTEROS
dietary/nutritional supplements.”
Serial No. 76500182
- 22 -
However, the issue is not likelihood of confusion
between particular goods, but likelihood of confusion as to
the source of those goods. See In re Rexel Inc., 223 USPQ
830, 831 (TTAB 1984), and cases cited therein. In fact, the
principles of likelihood of confusion that have developed
under the Lanham Act are not designed to prevent the
situation where a small child wants baby food and the
caregiver inadvertently offers her rat poison bearing the
same house mark.19 Rather, the issue we are faced with is
the likelihood that the consumer who knows of registrant’s
supplements – but has an imperfect recollection of the exact
spelling of registrant’s coined mark – may mistakenly assume
that applicant’s ethical pharmaceuticals originate with
registrant.
On the other hand, a very different approach to the
discussion of the conditions under which sales are made is
to assume that when ethical pharmaceuticals are
involved, the consequences of confusion are so drastic
that a mark should not be registered if there is any
chance for confusion. In this case, we must assume
that the customers for those goods, as identified, would be

19 “Is there anyone among you who, if your child asks for
bread, will give a stone? Or if the child asks for a fish,
will give a snake?”
-- Matthew 7:9-10
Serial No. 76500182
- 23 -
ordinary consumers, having imperfect recollection and unable
to compare these marks on a side-by-side basis. Without
entering into the debate over the correctness of a
“doctrine of greater care” for pharmaceuticals, in
which case one would apply a lesser quantum of proof in
reaching a finding of likelihood of confusion, adopting
this approach would certainly tilt the balance on this
du Pont factor more steeply in favor of the position
taken by the Trademark Examining Attorney.
Conclusions
In conclusion, two key considerations support the
conclusion that there is a likelihood of confusion herein,
namely, applicant’s mark is quite similar to
registrant’s mark and the respective goods are deemed
to be related.
Decision: The refusal to register under Section 2(d)
of the Act is hereby affirmed.