Essenlix Corporation

Trademark Trial and Appeal Board

Mar 22, 2018

No. 86954140 (T.T.A.B. Mar. 22, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 22, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Essenlix Corporation
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Serial No. 86954140
Serial No. 86954324
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Yangzhou Harry Du, Esq., for Essenlix Corporation.

Kristin Williams, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
_____

Before Cataldo, Bergsman and Coggins,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Essenlix Corporation (“Applicant”) seeks registration on the Principal Register of
the marks EX-PLATE1 (in standard characters) and X-PLATE2 (in standard
characters) both for the goods listed below:

1 Application Serial No. 86954140 was filed on March 26, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
2 Application Serial No. 86954324 was filed on March 27, 2016, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
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Assays for research purposes, in Class 1; and
Blood testing apparatus, in Class 10.
The Trademark Examining Attorney refused registration of Applicant’s marks
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
Applicant’s marks so resemble the registered mark X-PLATE TECHNOLOGY for
“medical testing for diagnostic and treatment purposes in the field of gynecology,” in
Class 44, as to be likely to cause confusion.3 Registrant disclaimed the exclusive right
to use the word “Technology.”
The appeals were consolidated in the Board’s October 13, 2017 order.4 References
to the record are to Serial No. 86954140 unless otherwise indicated. Also, citations to
the TSDR database are to the .pdf format.
After the Trademark Examining Attorney made the refusals final, Applicant
appealed to this Board. We affirm the refusals to register.
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
177 USPQ 563, 567 (CCPA 1973) (“du Pont”) (cited in B&B Hardware, Inc. v. Hargis
Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015)); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have
considered each du Pont factor that is relevant or for which there is evidence of record.

3 Registration No. 4212668 registered on September 25, 2012.
4 7 TTABVUE.
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See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947
(Fed. Cir. 2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242
(TTAB 2015) (“While we have considered each factor for which we have evidence, we
focus our analysis on those factors we find to be relevant.”). 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.2d 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)).
I. The similarity or dissimilarity of the marks.
We turn first to 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. du Pont, 177 USPQ at 567. “Similarity in
any one of these elements may be sufficient to find the marks confusingly similar.” In
re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014). In comparing the marks, we are
mindful that “[t]he proper test is not a side-by-side comparison of the marks, but
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instead ‘whether the marks are sufficiently similar in terms of their commercial
impression’ such that persons who encounter the marks would be likely to assume a
connection between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The proper focus is on the
recollection of the average customer, who retains a general rather than specific
impression of the marks. Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d
1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438
(TTAB 2012); Winnebago Indus., Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344
(TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
As discussed below, because Applicant’s products are “assays for research purposes”
and “blood testing apparatus” and Registrant’s services are “medical testing for
diagnostic and treatment purposes in the field of gynecology,” the relevant purchasers
are professionals with a technical background who exercise a heightened degree of
purchasing care.
A. X-PLATE
Applicant’s mark X-PLATE and Registrant’s mark X-PLATE TECHNOLOGY are
similar because they share the term X-PLATE. We also find the wording
TECHNOLOGY in Registrant’s mark is less significant given the fact that the
wording is, at a minimum, descriptive of Registrant’s identified goods, and has been
appropriately disclaimed by Registrant. See, e.g., Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms,
this court has noted that the ‘descriptive component of a mark may be given little
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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 Dixie Rests.,
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (“DELTA,” not the
disclaimed generic term “CAFE,” is the dominant portion of the mark THE DELTA
CAFE); 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, more or less weight
has been given to a particular feature of a mark, such as a common dominant element,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties. In re Nat’l Data Corp., 224 USPQ at 751.
Further highlighting the importance of the term X-PLATE in Registrant’s mark
X-PLATE TECHNOLOGY is its location as the first part of the mark. See Palm Bay
Imports 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); Presto Prod. Inc. v. Nice-Pak Prod., Inc., 9
USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most
likely to be impressed upon the mind of a purchaser and remembered”).
“[I]f the dominant portion of both marks is the same, then confusion may be likely
notwithstanding peripheral differences.” In re Denisi, 225 USPQ 624, 624 (TTAB
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1985). The peripheral differences in this case, namely, Registrant’s addition of the
word “Technology,” fails to distinguish the marks.
Further, the Trademark Examining Attorney argues that medical testing services
and companies that sell medically related products often include descriptive terms as
a part of their marks or trade names and advertise their goods or services using only
the dominant part of the mark or trade name. In support of this argument, the
Trademark Examining Attorney submitted the Mighty Oak Medical website
(mightyoakmedical.com), the Nexalin Technology website (nexaline.com), and the
Provista Diagnostics website (provistadx.com).5
• Mighty Oak Medical website6
Mighty Oak Medical refers to itself as Might Oak in the website.
Mighty Oak has developed as strong reputation as a leader
in patient-specific [cut off]
In the website, Mighty Oak Medical promotes its use of FIREFLY TECHNOLOGY
in spine surgery often referring to it as just Firefly (e.g., “Firefly In the News,” “Firefly
Pedicle Screw Navigation Guides,” and “Mighty Oak Medical: Second FDA Clearance
for FIREFLY”).
• Nexalin Technology website7
Nexalin Technology refers to itself as Nexalin.

5 We did not consider the Flowermate Vaporizer Technology website (flowermateusa.com)
(attached to the January 11, 2017 Office Action (TSDR 6-7)) because the advertised product
is an electronic cigarette rather than a medical testing product or service and, therefore, it is
not relevant to the consumer perceptions at issue in these appeals.
6 January 11, 2017 Office Action (TSDR 8).
7 January 11, 2017 Office Action (TSDR 9
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How Does Nexalin Work?
… Nexalin supports the normalization of these chemicals
without medication and their undesired side effects. The
Nexalin device emits a patented, frequency-based
waveform that interacts with the deep centers of the mid-
brain.
• Provista Diagnostics website8
Provista Diagnostics refers to itself as “Provista.”
Advantages of a Blood-Based Approach
Provista is developing blood-based cancer diagnostics that
provide actionable information to improve clarity in
decisionmaking [sic], reduce over and under diagnostics,
lower healthcare costs and, most importantly, improve
outcomes and save lives by improving early cancer
detection. Provista’s diagnostic technology determines
current disease state, not the future risk of developing the
disease.
This evidence shows that companies that provide medical testing services and
products often abbreviate or shorten their names. Therefore, consumers encountering
X-PLATE could mistakenly believe that it is a shortened form of X-PLATE
TECHNOLOGY. See Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321,
1333 (TTAB 1992) (petitioner’s use of FIELD’S “is intended to be and is recognized as
a shorthand reference to MARSHALL FIELD’S.”); see also Giant Food, Inc. v. Nation’s
Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir. 1983) (“Although the
record does not indicate that applicant’s business is commonly referred to as “Giant”,
it does indicate that people have called it by that name, omitting the word
“Hamburgers”. Thus, in a conversation between two consumers in opposer’s area

8 January 11, 2017 Office Action (TSDR 10-11).
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about a place of business called “Giant”, there likely would be confusion about which
“Giant” they were talking about.”). In In re United States Shoe Corp., 229 USPQ 707,
709 (TTAB 1985), the Board observed that the applicant’s mark CAREER IMAGE
“would appear to prospective purchasers to be a shortened form of registrant’s mark
[CREST CAREER IMAGE].” Here too, we find that consumers are likely to perceive
Applicant’s mark X-PLATE as a shortened version of the registered mark X-PLATE
TECHNOLOGY. See also Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260
(affirming Board decision that ML is likely to be perceived as a shortened version of
ML MARK LEES, and noting that “the presence of an additional term in the mark
does not necessarily eliminate the likelihood of confusion if some terms are
identical”).
In view of the foregoing, we find that X-PLATE is similar to X-PLATE
TECHNOLOGY in terms of appearance, sound, connotation and commercial
impression.
B. EX-PLATE
The preceding analysis regarding the similarity between X-PLATE and X-PLATE
TECHNOLOGY applies to the analysis of EX-PLATE and X-PLATE TECHNOLOGY.
The only difference in the analysis is that the application for EX-PLATE includes the
letter “E” before the letter “X.” Based on common pronunciation, EX-PLATE and X-
PLATE are phonetically equivalent. With the marks being phonetic equivalents,
Applicant’s addition of the letter “E” before the letter “X” does not distinguish the
marks because slight differences in marks do not normally create dissimilar marks.
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See United States Mineral Prods. Co. v. GAF Corp., 197 USPQ 301, 306 (TTAB 1977)
(“‘AFCO’ and ‘CAFCO,’ which differ only as to the letter ‘C’ in USM’s mark, are
substantially similar in appearance and sound”); see also Kenner Parker Toys Inc. v.
Rose Art Indus. Inc., 963 F.2d 350, 22 USPQ2d 1453, 1457-58 (Fed. Cir. 1992)
(FUNDOUGH is similar to PLAYDOH); E. I. du Pont de Nemours & Co. v. Yoshida
Int’l, Inc., 393 F. Supp. 502, 185 USPQ 597, 604 (E.D.N.Y. 1975) (EFLON is similar
to TEFLON); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740-41 (TTAB
2014) (AKEA is similar to IKEA); In re Great Lakes Canning, Inc., 227 USPQ 483,
485 (TTAB 1985) (“Moreover, although there are certain differences between the
[marks’ CAYNA and CANA] in appearance, namely, the inclusion of the letter ‘Y’ and
the design feature in applicant’s mark, there are also obvious similarities between
them. Considering the similarities between the marks in sound and appearance, and
taking into account the normal fallibility of human memory over a period of time (a
factor that becomes important if a purchaser encounters one of these products and
some weeks, months, or even years later comes across the other), we believe that the
marks create substantially similar commercial impressions.”); In re Bear Brand
Hosiery Co., 194 USPQ 444, 445 (TTAB 1977) (“The mark of the applicant, ‘KIKS’ and
the cited mark ‘KIKI’ differ only in the terminal letter of each mark. While differing
in sound, the marks are similar in appearance and have a somewhat similar
connotation”).
Applicant contends that the connotation of EX-PLATE and X-PLATE
TECHNOLOGY are different because “‘Ex’ is a common preposition that relates to
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‘without’, ‘not including’ or ‘free of’ or ‘former,’’’ citing Dictionary.com, and, therefore,
“[s]uch a connotation makes ‘EX-PLATE’ at least partly distinct from ‘X-PLATE.’”9
“Ex” is defined, inter alia, as “the letter X, x” and as “a prefix meaning ‘out of,’ ‘from,’
and hence ‘utterly,’ ‘thoroughly,’ and sometimes meaning ‘not’ or ‘without’ or
indicating a former title, status, etc.” freely used as an English formative: exstipulate;
exterritorial, ex-president (former president); ex-member; ex-wife.”10 Based on the
definitions of “Ex,” we find that as likely as it is that some consumers may perceive
EX-PLATE as meaning without or free of plates, it is just as likely that consumers
will perceive EX-PLATE as the equivalent of X-PLATE.
EX-PLATE is therefore similar to X-PLATE TECHNOLOGY in terms of
appearance, sound, connotation and commercial impression.
II. The similarity or dissimilarity and nature of the goods and services.
Applicant is seeking to register its marks for “assays for research purposes” and
“blood testing apparatus” and Registrant’s services are “medical testing for diagnostic
and treatment purposes in the field of gynecology.” To show that Applicant’s goods
and Registrant’s services are related, the Trademark Examining Attorney submitted
excerpts from third-party websites showing that the same entities provide the
relevant goods and services.

9 Applicant’s Brief, p. 3 (4 TTABVUE 4)
10 Dictionary.com based on the Random House Dictionary (2018). 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); Threshold.TV Inc. v. Metronome Enters. Inc., 96 USPQ2d
1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
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• The Alere website (alere.com) advertises that it “delivers reliable,
actionable information through a full suite of rapid diagnostic tests. Our
products accelerate decision making for the most costly chronic conditions
in infectious disease, cardiometabolic disease, and toxicology, helping to
deliver better clinical and economic healthcare outcomes globally.”11 The
cardiometabolic products and services include cardiac markers, glucose and
HbA1C, cholesterol levels, blood gases, anticoagulation and the toxicology
goods and services include laboratory tests and immunoassay reagents. The
website advertises that Alere’s goods and services “enables informed
decision-making by healthcare professionals at the point-of-care.”
• The LabCorp website (labcorp.com) advertises LabCorp’s Cancer Antigen
(CA) 125, an assay used to monitor a patient’s therapy.12 It is used as tumor
marker for monitoring therapy and progress of patients with ovarian
carcinoma.
The diagnostic sensitivity and specificity of the Elecsys CA
125 II test was calculated by comparing ovarian carcinoma
patients at primary diagnosis (FIGO stage I to IV) with
patients suffering from benign gynecologic diseases.
LabCorp also advertises its laboratory tests and services, including testing
for blood counts and cholesterol and obstetrics/gynecological for physicians
to improve patient care.

11 July 14, 2016 Office Action (TSDR 7-8).
12 July 14, 2016 Office Action (TSDR 9-10)
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• The Quest Diagnostics website (questdiagnostics.com) issued a press
release announcing a new assay for diagnosing congestive heart failure.13
The website advertises Quest Diagnostics diagnostic testing services,
including routine blood tests and pap testing, as well as diagnostic products,
including test kits and reagents used by physicians, hospitals, blood
collection centers and other clinical laboratories.
• The Clinical Genomics website (clinicalgenomics.com) advertises that its
breadth of goods and services include “laboratory services as well as in vitro
diagnostic (IVD) kits for large laboratory pathology customers as well as
point-of-care and in-office testing,” “molecular diagnostics pathology
services,” and a cancer screening assay.14
This evidence shows that physicians, hospitals, blood collection centers and other
clinical laboratories encounter companies that offer assays, blood testing apparatus
and medical testing services so that if those goods and services were offered under
similar marks consumers may mistakenly believe that they emanate from a single
source. On the other hand, Applicant argues that the registered mark X-PLATE
TECHNOLOGY is used solely for medical testing services while the X-PLATE and
EX-PLATE “assays for research purposes” and “blood testing apparatus” are
“associated with devise/apparatus/kits that actually include a plate structure.”15

13 July 14, 2016 Office Action (TSDR 11-14).
14 January 11, 2017 Office Action (TSDR 12-14).
15 Applicant’s Brief, pp. 4-5 (4 TTABVUE 5-6).
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First, Applicant’s description of goods is not limited to assays or blood testing
apparatus consisting of plate structures and, therefore, we may not limit the goods to
those including only plate structures. We must consider the goods as they are
described in the application and registration. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 1321, 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.”). Accordingly, we do not read limitations into the
identification of goods or services. 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”). Therefore, we must presume that Applicant’s products are not
restricted to those including plate structures.
Second, Applicant’s argument does not rebut the evidence that shows consumers
encounter the same entities providing assays or blood testing apparatus and medical
testing services.
We find that the goods and services are related.
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III. The conditions under which and buyers to whom sales are made.
A. Buyers to whom sales are made.
The third-party websites discussed above show that assays, blood testing
apparatus and medical testing services are advertised to physicians, hospitals, blood
collection centers and other clinical laboratories. For example, “Alere products give
providers, physicians and patients access to the right information at the right time,”16
LabCorp’s “customers include physicians and their patients, hospitals and managed
care plans, private employers, military and law enforcement agencies, and
pharmaceutical and biotechnology companies,”17 and Quest Diagnostics offer a wide
range of products and services to “healthcare providers, and pharmaceutical medical
devices companies, life insurance companies and employers.”18
Applicant argues that its EX-PLATE and X-PLATE products will be marketed to
laboratory researchers and ordinary consumers who will use the products while
Registrant’s medical testing services are marketed to physicians. However, as noted
above, we base our analysis on the description of goods and services and we may not
read restrictions into those descriptions of goods and services based on extrinsic
evidence, or in this case, argument by counsel. Because there are no restrictions in
the descriptions of goods and services, we must presume that Applicant’s goods and
Registrant’s services move in all channels of trade normal for those goods and services

16 July 14, 2016 Office Action (TSDR 8).
17 July 14, 2016 Office Action (TSDR 10).
18 July 14, 2016 Office Action (TSDR 14).
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and that they are available to all classes of purchasers for those goods and services.
See 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). Accordingly, we find that the goods and services are sold to the same
consumers.
B. The conditions under which the sales are made.
While neither Applicant nor the Trademark Examining Attorney submitted any
evidence regarding the conditions under which sales are made or the degree of care
that the consumers exercise when making their purchasing decisions, by virtue of the
nature of the goods and services, purchasers of medical products and services exercise
a heightened degree of care because of the specific purpose of the products and
services, the medical nature of the products and services, and the duty of care the
purchasers have selecting and using the products and services.
However, we are not persuaded that even consumers exercising a heightened
degree of purchasing care would not be confused when the marks X-PLATE or EX-
PLATE and X-PLATE TECHNOLOGY are used in connection with related products
and services. These customers are likely to be aware that a single entity can be the
source of Applicant’s products and Registrant’s services. Palm Bay Imports Inc. v.
Veuve Clicquot Ponsardin Fondee En 1772, 73 USPQ2d at 1695 (“And even more
sophisticated purchasers might be aware that champagne houses offer both types of
products under similar marks, and could easily conclude that VEUVE ROYALE was
Veuve Clicquot’s sparkling wine”). Moreover, at least some of the clients, familiar
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with Registrant’s medical testing services, are likely to participate in purchasing
decisions involving Applicant’s “assays for research purposes” and “blood testing
apparatus,” and mistakenly assume that the source of the products and services are
associated or related in some way.
Nevertheless, in the absence of probative evidence, we find that the conditions
under which the sales are made is a neutral factor.
IV. Evaluating the factors.
Because the marks are similar, the goods and services are related, and we
presume that the classes of consumers may be the same, we find that Applicant’s
marks X-PLATE and EX-PLATE for “assays for research purposes” and “blood testing
apparatus” are likely to cause confusion with the registered mark X-PLATE
TECHNOLOGY for “medical testing for diagnostic and treatment purposes in the
field of gynecology.”
Decision: The refusals to register Applicant’s marks X-PLATE and EX-PLATE
are affirmed.