Collective Health, Inc.

Trademark Trial and Appeal Board

Jan 29, 2021

88164605 (T.T.A.B. Jan. 29, 2021)

Mailed: January 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Collective Health, Inc.
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Application Serial No. 88164605
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Rhett V. Barney of Lee & Hayes PC for Collective Health, Inc.

Marco Wright, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
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Before Bergsman, Goodman and Coggins, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Collective Health, Inc. (Applicant) seeks registration on the Principal Register of
the mark COLLECTIVE HEALTH, in standard character form, for the services set
forth below:
Providing non-downloadable software for accessing and
analyzing information in the fields of health and wellness;
Providing non-downloadable software allowing users to
access healthcare information resources and information
concerning healthcare treatment options; Providing non-
downloadable software allowing users to access healthcare
treatment information and information concerning
healthcare treatment options; Providing non-downloadable
software allowing self-funded employers to optimize
utilization of healthcare benefits and resources, namely,
through digital and electronic means in the nature
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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allowing self-funded employers to easily access and analyze
utilization data across different health benefits and
programs categories, in International Class 42.1
Applicant disclaims the exclusive right to use the word “Health.”
The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), based on the registered marks
COLLECTIVE MEDICAL, in standard character form,2 and COLLECTIVE
MEDICAL TECHNOLOGIES, in standard character form,3 owned by the same
entity, and both including the services listed below:
Providing temporary use of on-line non-downloadable
software that alerts medical providers when their high-
utilization and special-needs patient registers at an
emergency department; providing temporary use of on-line
non-downloadable software that allows medical providers
to track a patient’s use of an emergency department;
providing temporary use of on-line non-downloadable
health care management software that allows for
coordination of communication amongst all of the patient’s
medical care providers, in International Class 42.
Registrant disclaimed the exclusive right to use the terms “Medical” and “Medical
Technologies.”
Citations to the examination record refer to the USPTO’s Trademark Status and
Document Retrieval system (TSDR) by page number in the downloadable .pdf format.

1 Serial No. 88164605 filed October 22, 2018, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), based on Applicant’s claim of first use of the mark anywhere and in
commerce as of August 11, 2014.
2 Registration No. 4599673 registered September 9, 2014; Combined Sections 8 and 15
declaration accepted and acknowledged.
3 Registration No. 4670503 registered January 13, 2015; Combined Sections 8 and 15
declaration filed.
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I. Preliminary Issue
Exhibits B-F attached to Applicant’s February 12, 2020 Request for
Reconsideration (TSDR 29-66) are blank. Applicant is responsible for ensuring the
documents it submits are complete and legible. Cf. Trademark Rule 2.126(a)(2),
37 C.F.R. § 2.126(a)(2) (“Exhibit pertaining to an electronic submission must be made
electronically as an attachment to the submission and must be clear and legible.”);
Moke Am. LLC v. Moke USA, LLC, 2020 USPQ2d 10400, *1 n.6 (TTAB 2020); Alcatraz
Media, Inc. v. Chesapeake Marine Tours, Inc., 107 USPQ2d 1750, 1758 (TTAB 2013)
(citing Hard Rock Cafe Licensing Corp. v. Elsea, 48 USPQ2d 1400,1404 (TTAB 1998)
(“It is reasonable to assume that it is opposer’s responsibility to review the documents
it submits as evidence to ensure that such submissions meet certain basic
requirements, such as that they are legible.…”)), aff’d, 556 F. App’x 900 (Fed. Cir.
2014) (mem.); Weider Publ’ns, LLC v. D&D Beauty Care Co., 109 USPQ2d 1347, 1351
(TTAB 2014) (onus is on party making submissions to ensure that, at a minimum,
“all materials are clearly readable by the adverse party and the Board.”), appeal
dismissed per stipulation, No. 14-1461 (Fed. Cir. October 10, 2014).
II. Likelihood of Confusion
We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors bearing on the likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
113 USPQ2d 2045, 2049 (2015). See also In re Majestic Distilling Co., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). “In discharging this duty, the thirteen
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DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont,
177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight
afforded to each factor depends on the circumstances. Any single factor may control
a particular case.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d
994, 2020 USPQ2d 10341, *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at
1533).
“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA
1973). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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.”). See also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
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A. The similarity or dissimilarity of the marks.
We turn first to the DuPont factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. 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) (quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014)), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019); accord Krim-Ko Corp. v.
Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
Applicant is seeking to register the mark COLLECTIVE HEALTH and the cited
marks are COLLECTIVE MEDICAL and COLLECTIVE MEDICAL
TECHNOLOGIES. The marks are similar because they share the word “Collective”
as the first word of the marks.
When Applicant and Registrant use the terms “Health,” “Medical,” and “Medical
Technologies” in connection with their respective software in the fields of health and
wellness, tracking when a patient is admitted to an emergency room, and providing
a means of communication among a patient’s caregivers, those terms are merely
descriptive and Applicant and Registrant have disclaimed the exclusive right to use
them. Disclaimed, descriptive matter has less significance in likelihood of confusion
determinations. See In re Detroit Ath. Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047,
1050 (Fed. Cir. 2018) (citing In re Dixie Rests., 41 USPQ2d at 1533-34); Cunningham
v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding
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descriptive terms, this court has noted that the ‘descriptive component of a mark may
be given little weight in reaching a conclusion on the likelihood of confusion.’”)
(quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985));
In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter
is often “less significant in creating the mark’s commercial impression”).
There is nothing improper in stating that, for rational reasons, we give more or
less weight 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. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012);
Nat’l Data Corp., 224 USPQ at 751.
Further reinforcing the significance of the word “Collective” as the dominant
element of Applicant’s mark and Registrants marks is its location as the first part of
the marks. See Detroit Ath. Co., 128 USPQ2d at 1049 (finding “the identity of the
marks’ two initial words is particularly significant because consumers typically notice
those words first”); Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Fondee En 1772,
396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most
prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word in
the mark and the first word to appear on the label); Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers will first notice the identical lead word).
Applicant’s mark COLLECTIVE HEALTH and Registrant’s marks COLLECTIVE
MEDICAL and COLLECTIVE MEDICAL TECHNOLOGIES have similar meanings
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and engender similar commercial impressions. Merriam-Webster.com defines
“health,” inter alia, as “the general condition of the body.”4 It defines “medical” as “of,
relating to, or concerned with physicians or the practice of medicine” and “collective”
as “denoting a number of persons or things considered as one group or whole” and
“shared or assumed by all members of the group.”5 Thus, COLLECTIVE HEALTH
means and engenders the commercial impression of a group that addresses a person’s
health and wellness while COLLECTIVE MEDICAL and COLLECTIVE MEDICAL
TECHNOLOGIES mean and engender the commercial impressions of shared
medicine or medical technology. The meanings and commercial impressions evoke
collectivism relating a group with shared interests in health, wellbeing or medicine.
Applicant contends that because the mark COLLECTIVE HEALTH “gives a
commercial impression that is apart from anything medical and instead focuses on
soundness of mind and body, the average customer understands, just as she
understands she could not purchase a stethoscope at a juice bar, that Applicant and
the registrant are distinct sources.”6 While the word “Health” (i.e., “the general
condition of the body”) is not identical in meaning to the word “Medical” (“of, relating
to, or concerned with physicians or the practice of medicine”), the general condition
of the body is the concern of medicine or someone in the medical field. Therefore,

4 February 12, 2020 Request for Reconsideration (TSDR 18).
5 Merriam-Webster.com (accessed January 22, 2021). The Board may take judicial notice of
dictionary definitions, including online dictionaries that exist in printed format. In re Cordua
Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632
(Fed. Cir. 2016); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In
re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
6 Applicant’s Brief, p. 11 (10 TTABVUE 11).
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although we do not view COLLECTIVE HEALTH and COLLECTIVE MEDICAL or
COLLECTIVE MEDICAL TECHNOLOGIES as exact synonyms, we find that their
connotations and commercial impressions are similar. “[E]xact similitude is not
required to conclude that two marks are confusingly similar.” Hercules, Inc., v. Nat’l
Starch & Chem. Corp., 223 USPQ 1244, 1246 (TTAB 1984) (“when there are small
differences between the marks, the differences may be insignificant in obviating the
likelihood of confusion when compared to the marks’ overall similarities.”). Thus, the
commercial impressions of COLLECTIVE HEALTH and COLLECTIVE MEDICAL
or COLLECTIVE MEDICAL TECHNOLOGIES are similar.
We find that Applicant’s mark COLLECTIVE HEALTH is similar to the
registered marks COLLECTIVE MEDICAL and COLLECTIVE MEDICAL
TECHNOLOGIES in their entireties in terms of appearance, sound, connotation and
commercial impression.
B. The similarity or dissimilarity and nature of the services.
We must consider the services as Applicant and Registrant describe them in the
application and registrations. See Stone Lion Capital Partners, LP v. Lion Capital
LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys, Inc. v.
Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)
(“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 the sales
of goods are directed.”); Paula Payne Prods. v. Johnson Publ’g Co., 473 F.2d 901,
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177 USPQ 76, 77 (CCPA 1973) (“Trademark cases involving the issue of likelihood of
confusion must be decided on the basis of the respective descriptions of goods”).
Where services are broadly identified in an application or registration, “we must
presume that the services encompass all services of the type identified.” Sw. Mgmt.,
Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015) (where the services in
an application or registration are broadly described, they are deemed to encompass
all the goods of the nature and type described therein), quoted in In re Country Oven,
Inc., 2019 USPQ2d 443903, *4 (TTAB 2019) and cited in In re AC Webconnecting
Holding B.V., 2020 USPQ2d 11048, *11-12 (TTAB 2020).
This means that we do not read limitations into the descriptions of services. In re
i.am.symbolic, LLC, 123 USPQ2d at 1748; Squirtco v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 940 (Fed. Cir. 1983) (“There is no specific limitation and nothing in
the inherent nature of Squirtco’s mark or goods that restricts the usage of SQUIRT
for balloons to promotion of soft drinks. The Board, thus, improperly read limitations
into the registration”); In re Thor Tech Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We
have no authority to read any restrictions or limitations into the registrant’s
description of goods.”).
As noted above, Applicant is seeking to register its mark for the services listed
below:
Providing non-downloadable software for accessing and
analyzing information in the fields of health and wellness;
Providing non-downloadable software allowing users to
access healthcare information resources and information
concerning healthcare treatment options;
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Providing non-downloadable software allowing users to
access healthcare treatment information and information
concerning healthcare treatment options; and
Providing non-downloadable software allowing self-funded
employers to optimize utilization of healthcare benefits and
resources, namely, through digital and electronic means in
the nature allowing self-funded employers to easily access
and analyze utilization data across different health
benefits and programs categories.
Semicolons separate distinct categories of goods or services within a single class.
See In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1166 (TTAB 2013)
(finding that, because a semicolon separated the two relevant clauses in registrant’s
identification, its “restaurant and bar services” is a discrete category of services that
stands alone and independently as a basis for likelihood-of-confusion analysis, and is
not connected to nor dependent on the services set out on the other side of the
semicolon). See also TRADEMARK MANUAL OF EXAMINING PROCEDURE § 1402.01(a)
(2018). Accordingly, there are four distinct activities comprising Applicant’s
description of services.
On one hand, Applicant’s services of providing non-downloadable software for
accessing and analyzing information in the fields of health, wellness and treatment
options are not limited to any particular channels of trade or classes of consumers.
On the other hand, the user of Applicant’s “providing non-downloadable software
allowing self-funded employers to optimize utilization of healthcare benefits and
resources” is self-funded employers.
The relevant services in the cited registrations are:
Providing temporary use of on-line non-downloadable
software that alerts medical providers when their high-
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utilization and special-needs patient registers at an
emergency department;
Providing temporary use of on-line non-downloadable
software that allows medical providers to track a patient’s
use of an emergency department; and
Providing temporary use of on-line non-downloadable
health care management software that allows for
coordination of communication amongst all of the patient’s
medical care providers.
There are three distinct activities comprising Registrant’s description of services.
Thus, contrary to Applicant’s argument that Registrant’s services are limited to
emergency room services, only the first two activities are so limited in that they alert
to or track emergency department use, while the third listed activity is not limited,
and each of the three services is applicable to all of a patient’s medical care providers.7
In sum, Applicant is providing software that accesses and analyzes information in
the fields of health, wellness, and healthcare treatment, as well as software for self-
funded employers to access and analyze data across different health benefits and
program categories (e.g., claims, adjudication, administration, and finances vis-a-vis
medical, dental, vision and pharmacy benefits).8 Registrant, on the other hand,
provides software that allows medical providers to track patients’ use of emergency
rooms and coordinates communication amongst a patient’s medical care providers.

7 Applicant’s Brief, pp. 4-5 (10 TTABVUE 5-6).
8 Applicant’s website (collectivehealth.com) attached to the July 22, 2019 Response to Office
Action (TSDR 19 and 21).
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To show that the services are related, the Examining Attorney submitted excerpts
from third-party websites advertising access to software serving the same function
as both Applicant’s and Registrant’s software.9 For example,
● Arcadia (arcadia.io)10
Arcadia “deploy[s] our Analytics tools to collect inpatient data and develop
baselines of Potentially Preventable Complications (PPC) and Potentially

9 We note the Examining Attorney did not submit any third-party registrations. Third-party
registrations based on use in commerce that individually cover a number of different services
might have probative value to the extent that they serve to suggest that the listed activities
are of a type that may emanate from the same source. In re Country Oven, Inc., 2019 USPQ2d
443903, *8 (TTAB 2019); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem.
864 F.2d 149 (Fed. Cir. 1988). Third-party registrations based on use are often persuasive
evidence that goods or services are related.
10 January 22, 2019 Office Action (TSDR 21). The Internet Computer Bureau, a domain
registry company based in the United Kingdom, assigns the Internet country code top-level
domain .io to the British Indian Ocean Territory.
We evaluate the probative value of foreign information sources on a case-by-case basis. In re
Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007). Indeed, the Court explained
“[i]nformation originating on foreign websites or in foreign news publications that are
accessible to the United States public may be relevant to discern United States consumer
impression of a proposed mark.” Id. While foreign websites may not have the same probative
value as websites originating in the United States, we may not summarily dismiss them.
Various factors may inform the probative value of a foreign
website in any given case, such as whether the website is in
English (or has an optional English language version), and
whether the nature of the goods or services makes it more or less
likely that U.S. consumers will encounter foreign websites in the
field of question.
In re Well Living Lab Inc., 122 USPQ2d 1777, 1781 n.10 (TTAB 2017).
In this case, because the services involve sophisticated software in the health and medical
fields, U.S. consumers researching such software may encounter foreign websites in English.
See In re i.am.symbolic, llc, 127 USPQ2d 1627, 1634 n.8 (TTAB 2018) (not wholly discounting
a European website because U.S. consumers may have some exposure to such websites
retrieved from an Internet search).

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Preventable Readmissions (PPR). In addition, we develop reports to target system-
specific readmission causes.” These activities are analogous to Applicant’s “accessing
and analyzing information in the field of health and wellness and treatment options.
Likewise, the “Cost and Utilization Analysis functions of Arcadia Analytics allow
you to see patterns and trends for your emergency care population through
interactive geographical maps, graphical data visuals, and side-by-side comparisons
of data” is analogous to Applicant’s “accessing and analyzing information in the field
of health and wellness and treatment options, as well as allowing self-funded
employers to access and analyze utilization data. It also is analogous to Registrant’s
software that allows medical providers to track a patient’s use of an emergency
department.
● MorCare (morcarellc.com)11
The MorCare Utilization Management module “supports criteria-based reviews
for medical necessity … by promoting treatment at the appropriate level of care.”
“MorCare’s software solutions feature point-and-click graphical reporting for data
analysts, department managers, and other leaders.” This is analogous to Applicant’s
“accessing and analyzing information in the field of health and wellness and
treatment options,.
The MorCare Utilization Management module “helps you avoid unnecessary
readmissions by promoting treatment at the appropriate level of care and by helping
you track and manage payor communications accurately.” It provides “[c]ustomizable

11 January 22, 2019 Office Action (TSDR 22).
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rules for automatic identification of observation, admission, readmission and
continued-stay reviews,” “[a]utomated referrals to physician advisors,” and
“[v]ariance tracking, including readmission assessments, and avoidable days and
delays.” The module “puts patient readmissions on a work list by service line every
day.” This is analogous to Registrant’s software that alerts medical providers when
their high-utilization and special-needs patient registers at an emergency
department, track a patient’s use of an emergency department, and, and coordinate
communication amongst all of the patient’s medical care providers.
● Mid Atlantic Health Solutions (mahsolutions.com)12
“Mid Atlantic Health Solutions offers proactive utilization management by
evaluating the medical necessity, appropriateness, and efficiency of the use of health
care services, procedures, and facilities under the provisions of the health benefits
plan.” These activities are analogous to Applicant’s “accessing and analyzing
information in the field of health and wellness and treatment options, as well as
allowing self-funded employers to access and analyze utilization data.
Mid Atlantic Health Solutions conducts “[r]etrospective reviews … in cases of
emergent admissions to determine the medical necessity of service provided when the
health plan’s pre-authorization process has not been followed.” This is analogous to
Registrant’s software that allows medical providers to track a patient’s use of an
emergency department, as well as coordinating communications amongst a patient’s
medical care providers.

12 Id. at TSDR 24.
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● Avedon Health Systems (avedonsystems.com)13
Avedon Health System’s AveCare Software provides “[a]nalytical tools to identify
candidates for case, disease, maternity or quality management during the utilization
process and monitoring of claims, Rx and assessment data.” It also provides “a single
point, view or access of all CM/DM/UM activity and information relevant to a
particular patient.” These activities are analogous to Applicant’s accessing and
analyzing information in the field of health and wellness and treatment options.
The AveCare Software also permits “[e]xchange data from multiple sources
including: eligibility, claims, networks, pharmacy, diagnostic and lab results,
predictive modeling, decision support tools and e-fax.” These activities are analogous
to Registrant’s software that coordinates communication amongst all of the patient’s
medical care providers. In addition, the “single point, view or access of all CM/DM/UM
activity and information relevant to a particular patient” may include Registrant’s
ability to track a patient’s use of an emergency department.
● TCS Healthcare Technologies (tcshealthcare.com)14
TCS Healthcare Technologies’ ACUITY Advanced Care, care management
software, provides a “360° patient overview,” a “centralized source of information for
all clinical data,” “standard and ad-hoc reporting,” and “activity tracking or staff
productivity.” These activities are analogous to Applicant’s accessing and analyzing
information in the field of health and wellness and treatment options, as well as

13 August 12, 2019 Office Action (TSDR 8).
14 Id. at TSDR 9.
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allowing self-funded employers to access and analyze utilization data.
The ACUITY Advanced Care software also provides “automated patient care plans
from risks/gaps in care identified in care assessments,” a “centralized source of
information for all clinical data,” and a “built-in Prevention & Wellness HRAs and
Care Plans” that are analogous to Registrant’s software that coordinates
communication amongst all of the patient’s medical care providers.
● Conifer Health Solutions (coniferhealth.com)15
Conifer Health Solutions ConiferCare Outcomes Optimization is a web-based
medical management software application that includes,
•comprehensive medical management workflow tool;
•automated calendaring and tracking system;
•comprehensive set of standard care protocols with the ability to add custom-
care protocols;
•case-load management; and
•cost-savings reporting.
These activities are analogous to Applicant’s “accessing and analyzing information
in the field of health and wellness and treatment options, as well as allowing self-
funded employers to access and analyze utilization data.
In addition, the ConiferCare Outcomes Optimization software includes secure
messaging. The secure messaging, caseload management, comprehensive medical
management workflow and automated calendaring and tracking are analogous to

15 Id. at TSDR 14.
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Registrant’s software that coordinates communication amongst all of the patient’s
medical care providers.
● MCG (mcg.com)16
The MCG Cite CareWebQI provides “easy access to evidence-based best practices
and criteria so you can support clinical decision making.” It permits the user to
“access and document patient-specific factors against evidence-based guidelines” and
to “access clinical care guidelines.” These activities are analogous to Applicant’s
accessing and analyzing information regarding health, wellness and treatment
options.
The Cite CareWebQI also “tracks patients and episodes while capturing variances
from best practices.” This activity is analogous to Registrant’s tracking a patient’s
use of an emergency department.
● Bio-Optronics (bio-optronics.com)17
The Bio-Optronics “Biopoint Tracker is a comprehensive automated, rule-based
process flow and tracking application designed to maximize resource utilization and
patient access to care.” The program compiles all the necessary information for
procedure tracking, monitors patient progression through the procedure, and tracks
medication order status. These activities are analogous to Applicant’s accessing and

16 Id. at TSDR 18.
17 Id. at TSDR 19.
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analyzing health, wellness and treatment options.
The software also receives proactive and reactive alerts via text message, email,
and “in-app notifications” and configures displays to accommodate the needs of each
area. These activities are analogous to Registrant’s coordinating the communication
amongst the patient’s medical care providers.
● Veta Health (myvetahealth.com)18
Veta Health software provides information regarding health status and
responsive care pathways enabling patients to manage their health conditions and
under their care protocols. This is analogous to Applicant’s providing access and
analyzing information about health, wellness and treatment options.
Veta Health software provides “real-time alerts that reduce avoidable utilization
and costs” and “automated task lists and workflow tools that support value-based
care initiatives, giving teams the ability to more effectively care for patients.” In
addition, the Veta Health software uses multi-channel digital communications to
engage patients as members of their care teams. This is analogous to Registrant’s
software that coordinates communication amongst the patient’s medical care
providers.
Excerpts from websites showing the same mark used for both sets of services are
probative to demonstrate that the services are related. See e.g., In re Kysela Pere et
Fils Ltd., 95 USPQ2d 1261, 1266 (TTAB 2011) (third-party registration evidence and
website evidence amply demonstrated relatedness of the goods); In re Iolo Tech., LLC,

18 Id at TSDR 23.
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95 USPQ2d 1498, 1500-01 (TTAB 2010) (“The examining attorney also submitted
evidence from several websites to show that various types of optimization software
such as identified by applicant and technical support services such as identified by
the cited registration are advertised to consumers under the same mark.”); In re
G.B.I. Tile and Stone, Inc., 92 USPQ2d 1366, 1371 (TTAB 2009) (holding the goods,
while different and not interchangeable, are related because the evidence, including
Internet excerpts showing third parties using the same marks for both sets of
products, clearly demonstrates that there are entities that are the source of both sets
of products). Therefore, we find that Applicant’s services are related to Registrant’s
services.
C. Established, likely-to-continue channels of trade and classes of
consumers.
The excerpts from the third-party websites discussed above show third parties
offering services similar to Applicant’s and Registrant’s services in the same channels
of trade to the same classes of consumers. Applicant argues, to the contrary, that
Applicant and Registrant sell their services to different users, buyers, and customers.
Applicant’s customers “are typically senior administrative
personnel that have experience in dealing with benefit
companies and/or insurances.” Response to Office Action,
July 22, 2019. Clientele consist of “corporations, including
human resource and benefits specialist[s] within those
organizations.” Id. On the other hand, the Cited Marks are
sold in a business-to-business context to health care service
providers. Id. This clientele group consists of hospital
administrators and IT personnel. Id. There is a wide gap
between the channels of benefits administration and
emergency room functionality; all of the evidence of record
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supports these significant distinctions. See, e.g., id. at Exs.
C – L.19
As noted above, Applicant’s description of services are not limited or restricted to
senior administrative personnel with experience in benefit or insurance companies or
human resource or benefit specialists within a benefit or insurance company. We set
forth Applicant’s services in part below:
Providing non-downloadable software for accessing and
analyzing information in the fields of health and wellness;
Providing non-downloadable software allowing users to
access healthcare information resources and information
concerning healthcare treatment options; and
Providing non-downloadable software allowing users to
access healthcare treatment information and information
concerning healthcare treatment options.
We must presume that Applicant offers its services in all channels of trade that
would be normal for those activities and that consumers include all usual customers
for those types of services, including medical providers encompassed by Registrant’s
description of services. See Viterra, 101 USPQ2d at 1908 (quoting Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002));
Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261
(Fed. Cir. 2011); CBS Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 199 (Fed. Cir.
1983).
We find the Applicant and Registrant offer their services in the same channels of
trade and to the same classes of consumers.

19 Applicant’s Brief, p. 6 (10 TTABVUE 7).
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D. Conditions under which and customers to who sales are made.
Applicant contends that the circumstances under which Applicant and Registrant
market their services entails a high degree of consumer purchasing care that
minimizes the likelihood of confusion.20
Here, both Applicant and the owner of the Cited Marks
engage in lengthy sales techniques to sell costly products
upon which lives rely. Purchasing agents in the field need
not be knowledgeable about trademark law to recognize the
distinct sources of the two distinct services. This factor
weighs highly in favor of finding no likely consumer
confusion.21
In addition, Applicant’s counsel asserts, without any evidence, “the services
provided under Applicant’s Mark and the services provided under the Cited Mark are
offered at high price points that would under no circumstances be something
resulting from an impulse purchase.”22 “Attorney argument is no substitute for
evidence.” Zheng Cai, 127 USPQ2d at 1799 (quoting Enzo Biochem, Inc. v. Gen-Probe
Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)). Nevertheless, based on the descriptions of
services, we assume that the services are relatively high priced requiring greater care
on the part of the purchaser reducing likelihood of confusion. See McGregor-Doniger,
Inc. v. Drizzle, Inc., 599 F.2d 1126, 202 USPQ 81, 92 (2d Cir. 1979) (“the average
purchaser of an automobile will no doubt devote more attention to examining
different products and determining their manufacturer or source than will the
average purchaser of a ball of twine.”). See also Weiss Assocs., Inc. v. HRL Assocs.,

20 Applicant’s Brief, p. 7 (10 TTABVUE 8).
21 Id. at p. 6 (10 TTABVUE 9).
22 July 22, 2019 Response to Office Action (TSDR 12).
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Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1841 (Fed. Cir. 1990) (“In making purchasing
decisions regarding ‘expensive’ goods, the reasonably prudent person standard is
elevated to the standard of the ‘discriminating purchaser.’).
To support its contention that Applicant’s and Registrant’s clients exercise a high
degree of purchasing care, Applicant submitted copies of five articles in webpages
regarding selling software in the field of healthcare:23 HIStalk Healthcare IT News
& Opinion webpage,24 Becker’s Hospital Review,25 Healthcare IT Guy
(healthcareguy.com),26 “Selling to a Health System is like Breaking your Arm”
(redoxengine.com/blog/),27 and CloserIQ (closeriq.com).28 We glean the following
information about healthcare software purchasing:

23 July 22, 2019 Response to Office Action (TSDR 61-88).
24 Id. at TSDR 61-63. Although this webpage does not display the date the evidence was
published or accessed from the Internet, and its source (e.g., the complete URL address of the
website), the Examining Attorney did not object to the evidence and considered it in his
August 12, 2019 Office Action (TSDR 4). See In re I-Coat Co., LLC, 126 USPQ2d 1730, 1733
(TTAB 2018) (“[W]e will no longer consider Internet evidence filed by an applicant in an ex
parte proceeding to be properly of record unless the URL and access or print date has been
identified, either directly on the webpage itself, or by providing this information in a
response, except where the examining attorney does not object.”); In re Mueller Sports
Medicine, Inc., 126 USPQ2d 1584, 1587 (TTAB 2018) (“If the applicant’s response includes
Internet evidence without a URL or date it was printed, the examining must object to the
evidence in the first Office action following the response and advise the applicant as to the
proper way to make the Internet evidence of record. Otherwise the Board may consider the
objection waived.”). Cf. In re ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1594 n.40 (TTAB
2014) (objection waived where examining attorney, in a continuing refusal, failed to advise
applicant that mere listing of third-party registrations was insufficient to make them of
record).
25 Id. at TSDR 64-66. This webpage also does not display the date Applicant accessed the
evidence from the Internet or its URL. For the reasons noted in the previous footnote, we
may consider this webpage.
26 Id. at TSDR 67-73.
27 Id. at TSDR 74-80.
28 Id. at TSDR 81-88.
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● The software sales process may take 12-18 months;29
● Hospitals buy technology through committee meetings, materials managers,
and cost savings analysis;30
● Purchasers should identify their needs and the software options available to
meet those needs. In so doing, they should calculate the effect on the software on their
workflow and finances;31
● Purchasers should analyze the financial and operational performance of the
potential vendors against their competition;32
● Purchasers need to identify the main value they would get from the software;33
● Purchasers should identify what percentage of the software users obtain that
main value;34
● Purchasers should calculate their return on investment (e.g., how does the value
of the value of the software compare to the cost);35
● Purchasers should identify how long it takes to install the software and how
long before it starts receiving the main value;36 and

29 Id. at TSDR 75. Compare id. at TSDR 81 (nine months to a year).
30 Id. at TSDR 68.
31 Id. at TSDR 69.
32 Id.
33 Id. at 61.
34 Id.
35 Id.
36 Id.
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● Purchasers should learn the vendor’s client retention rate?’37
The Examining Attorney concedes that the relevant customers of healthcare
software exercise a high degree of purchasing care.38
We find that customers and potential customers for the software at issue exercise
a high degree of customer care when making their purchasing decisions. This DuPont
factor weighs against finding likelihood of confusion.
E. Conclusion
Despite the fact that customers and potential customers for the respective services
exercise a high degree of purchasing care, because the marks COLLECTIVE
HEALTH and COLLECTIVE MEDICAL or COLLECTIVE MEDICAL COLLECTIVE
TECHNOLOGIES are similar and are used on related services offered in the same
channels of trade to the same classes of consumers, we find there is a likelihood of
confusion.
Applicant’s argument that purchasers are experienced and discriminating persons
is not persuasive of a different result because being skilled on one’s field does not
necessarily preclude confusion of marks especially where, as here, Applicant and
Registrant use similar marks in connection providing similar software. The facts in
this case differ from the facts in Edwards Lifesciences Corp. v. VigiLanz Corp.,
94 USPQ2d 1399 (TTAB 2010), on which Applicant relies. In Edwards Lifesciences,

37 Id.
38 Examining Attorneys Brief (12 TTABVUE 12) (“However, the fact that purchasers are
sophisticated or knowledgeable in a particular field does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or immune to source confusion.”).
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the Board found no likelihood of confusion because despite the similarity of the
parties marks, the goods were not related, were not offered in the same channels of
trade or to the same classes of consumers, and the customers exercised a high degree
of purchasing care.
While the conditions under which sales are made (e.g., the exercise of a high
degree of consumer care) is a DuPont factor we consider in evaluating likelihood of
confusion, finding that consumers exercise a high degree of consumer care is not
necessarily dispositive of no likelihood of confusion. See e.g., In re Comput. Commc’ns,
Inc., 478 F.2d 1392, 179 USPQ 51, 52 (CCPA 1973) (“[B]eing skilled in one’s art does
not necessarily preclude mistaking one trademark for another when the marks are
as similar as those before us [stylized letters C within a block G vs. stylized letters
block C within a block C], and cover merchandise in the same general field [control
panel wiring accessories for computers vs. computer peripherals].”); Wincharger
Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289 (CCPA 1962) (“Being skilled in their
own art does not necessarily preclude their mistaking one trademark for another
when the marks are as similar as those here in issue [RINCO vs. WINCO], and cover
merchandise in the same general field [electrical apparatus].”); Alfacell Corp. v.
Anticancer Inc., 71 USPQ2d 1301, 1306 (TTAB 2004) (ONCONASE for “cancer-
treating drugs” vs. ONCASE for “therapeutic compositions containing reagents for
in vivo anticancer use“: “[T]here is no reason to believe that medical expertise as to
pharmaceuticals will ensure that there will be no likelihood of confusion as to source
or affiliation.”); In re Total Quality Grp. Inc., 51 USPQ2d 1474, 1477 (TTAB 1999)
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(STRATEGEN for computer software to perform statistical data analysis for
marketing and sales management vs. STRATEGYN for computer software for
developing and optimizing personal and business strategies and plans, not including
statistical data analysis: even professional buyers of expensive business planning
software “are not immune to source confusion” where the marks are substantially
identical and the software programs are overlapping in use); Daltronics, Inc. v. H. L.
Dalis, Inc., 158 USPQ 475, 481 (TTAB 1968) (DALTRONIX vs. DALTRONICS for in
part identical products: [T]he argument that purchasers of electronic goods are
experienced and discriminating persons is not persuasive of a different result for
being skilled technically in their art does not necessarily preclude their confusion of
marks especially, where, as here, the marks are substantially identical and are used
in connection with the sale of merchandise in the same general field.”).
Decision: The refusal to register Applicant’s mark COLLECTIVE HEALTH is
affirmed.