Cardiac Science Corporation

Trademark Trial and Appeal Board

Dec 29, 2016

No. 86410313 (T.T.A.B. Dec. 29, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: December 29, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Cardiac Science Corporation1
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Serial No. 86410313
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Patchen M. Haggerty of Perkins Coie LLP,
for Cardiac Science Corporation.
Linda Lavache, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
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Before Wellington, Shaw, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Applicant Cardiac Science Corporation seeks registration on the Principal
Register of the mark INTELLISENSE, in standard characters, for the following goods
(as amended) in International Class 10:
Electrodes for external defibrillators, namely,
defibrillation pads, stored pre-connected to an AED device
comprised of embedded circuitry, software, a voice
prompter and a medical grade battery sold through
authorized AED distributors; none of the foregoing

1 Card-Sci Inc. changed its name to Cardiac Science Corporation, as recorded with the U.S.
Patent and Trademark Office Assignment Recordation Branch on February 23, 2016 at
Reel/Frame 5737/0791.
Serial No. 86410313
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including CPR resuscitation masks, blood pressure
monitors or cuffs for blood pressure monitors.2
Applicant defines “AED” as “external defibrillator.”3
The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as
applied to the goods identified in the application, so resembles three marks previously
registered on the Principal Register to the same owner as to be likely to cause
confusion, to cause mistake, or to deceive. The cited marks, all for goods in
International Class 10, are:
• INTELLISENSE, in typeset form and with “sense” disclaimed, for “blood
pressure monitors”;4
• for “blood pressure monitors”; 5 and
• for “blood pressure monitors and cuffs for blood pressure
monitors.”6

2 Application Serial No. 86410313 was filed on September 30, 2014, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce.
3 Appeal Brief at 6, 6 TTABVUE 12.
4 Registration No. 2302442, issued December 21, 1999; renewed December 7, 2009. Before
November 2, 2003, standard character drawings were known as typed drawings. A typed
mark is the legal equivalent of a standard character mark. Trademark Manual of Examining
Procedure (TMEP) § 807.03(i) (October 2016).
5 Registration No. 2217779, issued January 12, 1999; renewed January 12, 2009.
6 Registration No. 3864463, issued October 19, 2010; combined §§ 71 & 15 declaration filed
October 14, 2016. The description of the mark states: “The mark consists of a heart
with a zig zag line resembling the beat on a heart monitor, which dissects the center.
To the right is the term ‘INTELLI’ with the term SENSE beneath.”
Serial No. 86410313
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After the Examining Attorney made the refusal final, Applicant appealed to this
Board. Subsequently, after both Applicant and the Examining Attorney filed appeal
briefs, Applicant requested remand of the application for consideration of its proposed
amendment to the description of goods.7 The application was remanded and the
Examining Attorney submitted a supplemental appeal brief (as permitted by the
Board’s order of August 26, 2016) in which she accepted the amendment to the
current goods description, but maintained the refusal.8 The appeal then resumed.
We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d)
goes to the cumulative effect of differences in the essential characteristics of the goods
and differences in the marks.”).
We focus on cited Registration No. 2302442 for the typeset mark INTELLISENSE,
which we find to be the most relevant cited mark for our likelihood of confusion

7 9 TTABVUE.
8 See 11 TTABVUE (Board order), 12-13 TTABVUE (Examining Attorney’s supplemental
brief). Applicant was allowed 20 days in which to file a reply brief, but did not.
Serial No. 86410313
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analysis. Accordingly, if we find a likelihood of confusion as to this mark, we need not
find it as to Registrant’s composite marks incorporating the word INTELLISENSE
and designs. See In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
We note that the goods identified in each of the three cited registrations are “blood
pressure monitors,” while Registration No. 3864463 for the composite mark
also covers “cuffs for blood pressure monitors.” The Examining
Attorney introduced evidence pertaining to the related nature of Applicant’s goods
and cuffs for blood pressure monitors. Because the typeset mark in Registration
No. 2302442 does not identify cuffs for blood pressure monitors, however, we have
not relied on this evidence to reach our decision.
We first address the du Pont likelihood of confusion factor focusing on “‘the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.’” Palm Bay Imports Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567).
Applicant’s mark and the cited typeset mark consist entirely of the identical term
INTELLISENSE. The first du Pont factor thus weighs strongly in favor of a finding
that confusion is likely.
We next consider the second and third du Pont factors, the similarity of the goods
and channels of trade. The test is not whether consumers would be likely to confuse
the goods, but rather whether they would be likely to be confused as to their source.
In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). Therefore, to support a finding
Serial No. 86410313
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of likelihood of confusion, it is not necessary that the goods be identical or even
competitive. It is sufficient that the goods are related in some manner, or that the
circumstances surrounding their marketing are such that they would be encountered
by the same persons in situations that would give rise, because of the marks, to a
mistaken belief that they originate from the same source or that there is an
association or connection between the sources of the goods. In re Thor Tech Inc., 90
USPQ2d 1634, 1635 (TTAB 2009). Thus, Applicant’s attempts to distinguish its goods
from those of the registrant by adding the language “none of the foregoing including
CPR resuscitation masks, blood pressure monitors or cuffs for blood pressure
monitors” to the identification of goods does not necessarily obviate a finding that the
respective goods are related. See In re i.am.symbolic, llc, 116 USPQ2d 1406, 1410
(TTAB 2015) (noting that the limiting language “does not, in any meaningful way,
alter the nature of the goods identified”).
We must make our determination regarding the similarities between the goods
and channels of trade based on the goods as they are identified in the involved
application and cited registration, respectively, not on any extrinsic evidence of actual
use. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1162 (Fed. Cir. 2014); Octocom Sys. Inc. v. Houston Computers Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). In other words, an
applicant may not restrict the scope of the goods covered in the cited registration by
argument or extrinsic evidence. In re Midwest Gaming & Entm’t LLC, 106 USPQ2d
1163, 1165 (TTAB 2013); see also In re Thor Tech, 90 USPQ2d at 1638 (“We have no
Serial No. 86410313
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authority to read any restrictions or limitations into the registrant’s description of
goods.”); In re Bercut-Vandervoort & Co., 229 USPQ 763, 764-65 (TTAB 1986).
Where, as here, the involved marks are identical, the degree of similarity between
the goods required to support a finding that confusion is likely declines. In re Opus
One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001). It is necessary only that there be a
viable relationship between the two to support a finding of likelihood of confusion. In
re i.am.symbolic, 116 USPQ2d at 1411.
The Examining Attorney introduced evidence that third parties offer both
defibrillator pads and blood pressure monitors under a single mark. Philips displays
its non-invasive blood pressure monitor and defibrillator pads on its own website.9
The website Medline.com offers both defibrillator pads and blood pressure monitors
by third party Welch-Allyn.10 This evidence shows that the kinds of goods identified
in the application and cited registration may emanate from a single source under the
same mark.
In addition, the Examining Attorney submitted at least four existing use-based,
third-party registrations covering goods of the type identified in both the subject
application and the cited registration (among other goods not listed here), including:
• PHYSIO-CONTROL: noninvasive blood pressure monitors and disposable
defibrillation electrodes11

9 August 14, 2015 Final Office Action, Attachment 7, 29-32.
10 Supplemental Brief, Attachment 7, 13 TTABVUE 39-45.
11 Registration No. 1414815, January 24, 2015 Office Action, Attachment 2, 11-12.
Serial No. 86410313
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• BENEHEART: blood pressure monitors and cardiac defibrillation
electrodes12
• ADVANCING RESUSCITATION. TODAY.: “defibrillators having ECG,
pulse oximetry, CO2 monitors, blood pressure monitors and temperature
monitors” and “electrodes for use with defibrillators”13
• AT THE HEART OF SAVING LIVES: “therapeutic and diagnostic
equipment-namely, [ ] cardiac monitors, defibrillators, and synchronizers
for use with defibrillators, and parts thereof and accessories therefore” and
“patient monitors for monitoring cardiac, pulse and blood pressure
functions”14
The latter registration is owned by Applicant, indicating that Applicant itself
markets blood pressure monitors under the same mark with defibrillator accessories.
While these registrations are not evidence that the marks shown therein are in
use or that the public is familiar with them, they nonetheless have probative value,
suggesting that the identified goods are of a kind which may emanate from a single
source under a single mark. In re Anderson, 101 USPQ2d at 1919; In re Davey Prods.
Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009).
We reiterate that because the involved marks are identical, there need be only a
viable relationship between the identified goods to support a finding of likelihood of
confusion. Based on the record evidence discussed supra, we find that the types of
goods identified in the application and cited registration are related. In our likelihood
of confusion analysis, this finding under the second du Pont factor supports a finding
that confusion is likely.

12 Registration No. 3767961, id. at 16-17.
13 Registration No. 3353622, id. at 22-24.
14 Registration No. 3464181, id. at 25-27.
Serial No. 86410313
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Considering the third du Pont factor, the channels of trade, the record
demonstrates that blood pressure monitors and defibrillator pads are offered by the
same medical equipment suppliers. The Examining Attorney submitted evidence that
Applicant’s defibrillator pads have been offered, without the INTELLISENSE mark,
through the same third-party website as Registrant’s INTELLISENSE blood
pressure monitors.15 The School Kids Healthcare website also offers blood pressure
monitors and defibrillator pads, including Applicant’s pads.16 While Applicant’s goods
are limited to those “sold through authorized AED distributors,” this evidence
indicates that such distributors comprise medical supply distributors selling other
types of medical equipment, including blood pressure monitors. Because the
respective goods are offered through the same retail sources, the third du Pont factor
also supports a finding that confusion is likely.
Applicant argues that several du Pont factors favor registration. First, Applicant
argues that the fourth factor, the “conditions under which and buyers to whom sales
are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing,” du Pont, 177 USPQ at
567, weighs against a likelihood of confusion. Applicant’s goods identification
specifies that its defibrillation pads are stored pre-connected to a defibrillator
(“Electrodes for external defibrillators, namely, defibrillation pads, stored pre-
connected to an AED device comprised of embedded circuitry, software, a voice
prompter and a medical grade battery”). In support of its argument, Applicant

15 Supplemental Brief, Attachment 6, 13 TTABVUE 33-38 (from medline.com).
16 August 14, 2015 Final Office Action, Attachment 8, 33-43; Supplemental Brief, Attachment
9, 13 TTABVUE 51-52 (both from schoolkidshealthcare.com).
Serial No. 86410313
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submitted evidence that its defibrillator, to which its pads are stored attached, is
priced at $1,543 on the AED Superstore website.17
It is Applicant’s defibrillation pads, not its AED device, however, that are at issue
here. Defibrillator electrodes offered by third parties Philips and Physio-Control are
sold separately and marketed for preconnection.18 Similarly, record evidence shows
that Applicant’s goods are offered for sale separately from its defibrillator, for $69.19
Registrant’s blood pressure monitor is offered for $59.99 on the Walgreens website
and $49.91 through Amazon.com.20 These goods are relatively inexpensive and not
limited to specific customers or markets. Precedent requires that we base our decision
on the least sophisticated potential purchasers. Stone Lion, 110 USPQ2d at 1163.
We do not find the record evidence sufficient to establish that all of the goods
identified in the subject application and cited registration are expensive and sold only
to discriminating customers. Even assuming that some consumers of the identified
goods are sophisticated, moreover, it is well-settled that even careful or sophisticated
purchasers are not immune from source confusion, especially in cases involving
identical marks:
That the relevant class of buyers may exercise care does
not necessarily impose on that class the responsibility of
distinguishing between similar trademarks for similar

17 July 24, 2015 Response to Office Action, Exhibit B, 16-22 (from the AED Superstore
website, URL not displayed); see also Appeal Brief at 10, 6 TTABVUE 16.
18 See Supplemental Brief, Attachment 2, 13 TTABVUE 10-11 (from aedsuperstore.com); id.,
Attachment 4, 13 TTABVUE 18-19 (from Enerspect Medical Solutions website,
enerspect.com), 24 (from mooremedical.com).
19 Supplemental Brief, Attachment 3, 13 TTABVUE 12-15 (from enerspect.com).
20 July 24, 2015 Response to Office Action, Exhibit D, 28-33.
Serial No. 86410313
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goods. “Human memories even of discriminating
purchasers . . . are not infallible.” Sophistication of buyers
and purchaser care are relevant considerations, but are not
controlling on this factual record.
In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986).
(citation omitted).
For all of these reasons, we find the fourth du Pont factor to be neutral.
Applicant next argues that the sixth du Pont factor, the number and nature of
similar marks in use on similar goods, limits the scope of protection for Registrant’s
mark.21 Applicant submitted printouts of INTELLI and SENSE formative marks
from the USPTO TSDR database. The following four are for the same mark at issue
here, INTELLISENSE:
• Reg. No. 2235237 for “battery packs” in International Class 9.22 As
discussed infra, this registration is owned by Applicant
• Reg. No. 3979658 for “air purifiers” in International Class 1123
• Reg. No. 3514303 for “software and computer hardware for use with robotic
surgical instruments in the human body” in International Class 924
• Reg. No. 1755084 for “infrared motion sensors, electronic glass break
detector and temperature sensors” in International Class 925
Even if the record contained evidence concerning public awareness of use of the mark
INTELLISENSE for these goods, this evidence would be of limited probative value
because the registrations identify goods different than those at issue. Such

21 Applicant’s Appeal Brief at 12, 6 TTABVUE 18.
22 July 24, 2015 Response to Office Action, Exhibits E and F, 34-47.
23 Id. at 48-49.
24 Id. at 50-51.
25 Id. at 52-54.
Serial No. 86410313
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registrations do not establish that consumers of blood pressure monitors and
defibrillation pads have become conditioned by a plethora of similar marks for similar
goods, resulting in a narrow scope of protection for the cited mark. Palm Bay, 73
USPQ2d at 1694.
We find the sixth du Pont factor to be neutral.
Finally, Applicant argues that the nature and extent of actual confusion (du Pont
factor 7), length of time during and conditions under which there has been concurrent
use without evidence of actual confusion (factor 8), and extent of potential confusion
(factor 12) all weigh against a likelihood of confusion.26
As noted supra, Applicant submitted a printout of its registration for the
INTELLISENSE mark for “battery packs,” which issued in 1999. Applicant also
submitted what appears to be a printout from its website showing that it offers
batteries for its defibrillator under the INTELLISENSE mark.27 Applicant argues
that it “has been using its ‘INTELLISENSE’ mark in commerce since July 1997 in
connection with ‘battery packs’, and no instance of actual confusion has arisen.”28
Applicant submitted no evidence concerning the extent of its use of the mark, such as
the volume of sales of its battery packs or conditions under which they are sold,
including whether they are marketed for use with defibrillators made by others.

26 Id. at 13, 6 TTABVUE 19.
27 July 24, 2015 Response to Office Action, Exhibit G, 121-23.
28 Appeal Brief at 13, 6 TTABVUE 19.
Serial No. 86410313
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A showing of actual confusion of course would be highly probative, if not
conclusive, of a likelihood of confusion. The opposite is not true, however:
The fact that an applicant in an ex parte case is unaware
of any instances of actual confusion is generally entitled to
little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally
has no way to know whether the registrant likewise is
unaware of any instances of actual confusion, nor is it
usually possible to determine that there has been any
significant opportunity for actual confusion to have
occurred.
In re Opus One, 60 USPQ2d at 1817; see also In re Cook Med. Techs. LLC, 105
USPQ2d 1377, 1383-84 (TTAB 2012) (“Applicant’s assertion, in an ex parte
proceeding, of the contemporaneous use of applicant’s and registrant’s marks for a
period of over 18 years without actual confusion is entitled to little weight.”); In re
General Motors Corp., 23 USPQ2d 1465, 1470 (TTAB 1992) (stating that normally,
“the registrant has no opportunity to be heard in an ex parte proceeding of this type
and the Board, therefore, is not in a position to meaningfully assess whether the
claimed period of contemporaneous use had provided ample opportunity for confusion
to have arisen”).
The record here is devoid of probative evidence relating to the extent of use of
Applicant’s mark for battery packs and Registrant’s mark for blood pressure monitors
and, thus, whether there have been meaningful opportunities for instances of actual
confusion to have occurred in the marketplace. See Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000); Gillette Canada Inc. v. Ranir
Corp., 23 USPQ2d 1768, 1774 (TTAB 1992); In re Kangaroos U.S.A., 223 USPQ 1025,
Serial No. 86410313
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1026-27 (TTAB 1984); see also In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d
1564, 1566 (Fed. Cir. 2001) (“The Board must decide each case on its own merits.”).
Accordingly, on the record before us, we find the seventh, eighth, and twelfth
du Pont factors to be neutral.
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, as they pertain to the relevant du Pont likelihood of
confusion factors. To the extent that any other du Pont factors for which no evidence
was presented by Applicant or the Examining Attorney may nonetheless be
applicable, we treat them as neutral. We have found that Applicant’s mark is
identical to the cited mark; the goods identified in the subject application and cited
registration are related and travel through the same channels of trade; and the
remaining du Pont factors are neutral.
We find that Applicant’s mark is likely to cause confusion with the mark in cited
Registration No. 2302442 when used in association with the goods identified in the
application.
Decision: The refusal to register Applicant’s mark is affirmed.