HealthTek, Inc.

Trademark Trial and Appeal Board

Oct 4, 2000

No. 75297144 (T.T.A.B. Oct. 4, 2000)

10/4/00
Paper No. 12
DEB
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re HealthTek, Inc.
________
Serial No. 75/297,144
_______
Alexander C. Johnson, Jr. and Graciela G. Cowger of Marger
Johnson & McCollom, P.C. for HealthTek, Inc.
Edward Nelson, Trademark Examining Attorney, Law Office 114
(Conrad Wong, Acting Managing Attorney).
_______
Before Hanak, Bucher and Holtzman, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
HealthTek, Inc., a corporation of the State of
Washington, has applied to register the mark “HEALTHTEK” as
shown below:
for the following services:
“Retail store services in the field of pharmaceuticals
and home health care supplies and equipment; namely,
prescription and over-the-counter medicines, nutritional
supplements, hospital-type beds, walkers, wheelchairs,
bath benches, grab bars, canes, crutches, orthopedic and
sports medicine braces and supports, athletic tape,
incontinence and urologic supplies, ostomy supplies,
wound care supplies, tapes and dressings, vascular
stockings and compression garments, diabetic strips,
meters and lancets, and postmastectomy breast forms and
bras,” in International Class 35
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/297,144
2
“Rental of wheelchairs,” in International Class 39,
and
“Rental of hospital-type beds, walkers, and patient
lifts; rental of respiratory equipment and oxygen tanks,”
in International Class 42.1
The Trademark Examining Attorney issued a final refusal
to register based upon Section 2(d) of the Trademark Act, 15
U.S.C. §1052(d), on the ground that applicant's mark,
“HEALTHTEK” as used on these services providing
pharmaceuticals and medical equipment, so resembles the
registered marks, “HEALTHTECH REHABILITATION, INCORPORATED,”2
and “HEALTHTECH”3 as applied to “health care services, namely
physical therapy, occupational therapy and speech-language
pathology aimed at restoration of mobility, physical,
functional and communication ability; and psychosocial
services, namely testing and consultation in the field of
psycho-sociology aimed at overcoming mental and emotional
barriers limiting restoration of mobility, physical,
functional and communication ability,” in International Class

1 Serial No. 75/297,144, filed on May 23, 1997. The application
for these three classes of services is based upon use in commerce
under Trademark Act Section 1(a), 15 U.S.C. §1051(a), with May 1,
1988 alleged as the date of first use of the mark anywhere, and May
1, 1988 alleged as the date of first use of the mark in commerce.
2 Registration No 1,976,333, issued on May 28, 1996. The
registration sets forth dates of first use in 1985.
3 Registration No 1,989,750, issued on July 30, 1996. The
registration sets forth dates of first use in 1985.
Serial No. 75/297,144
3
42, as to be likely to cause confusion, or to cause mistake,
or to deceive.
Our determination under Section 2(d) is based upon an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods or services. Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
As to the marks, applicant argues that while phonetically
similar, they are distinguishable given the different spelling
of the final suffix (e.g., “-tek” v. “-tech”) and the fact
that applicant’s mark is shown in upper and lower case letters
(HealthTek).
The Trademark Examining Attorney counters that these
differences are inconsequential -- that the marks look and
sound alike and convey the same commercial impression.
We agree with the Examining Attorney that when
applicant's “HEALTHTEK” mark is compared with registrant's
“HEALTHTECH” mark, as well as with the predominant portion of
registrant’s “HEALTHTECH REHABILITATION, INCORPORATED” mark,
they are essentially phonetic equivalents. There is nothing
Serial No. 75/297,144
4
in the nature of its services, as recited in the application,
which would preclude applicant’s promoting its mark aurally as
well as visually. Furthermore, the fact remains that in terms
of appearance, the marks at issue herein, “HEALTHTEK” and
“HEALTHTECH,” are substantially identical. Nothwithstanding
the minimal stylization incorporated into applicant’s mark, we
agree with the Trademark Examining Attorney that given the
fallibility of the average consumer, these respective marks
must be deemed to be quite similar indeed. In view thereof,
and inasmuch as applicant's mark, when pronounced, is
susceptible to having the same connotation as registrant's
mark, it is plain that the marks at issue project essentially
the same commercial impression. Contemporaneous use of the
marks “HEALTHTEK” and “HEALTHTECH” in connection with related
or complementary services would therefore be likely to cause
confusion as to the origin or affiliation of such services.
Turning to the services, applicant contends that patients
would need to go to different locations to get these
respective services, that rehab specialists are very different
kinds of service providers than are pharmacists, and that the
Trademark Examining Attorney’s several potential examples of
registrant’s services being provided with equipment bought or
rented from applicant are mere speculation rather than
reflections of the real-world. By contrast, the Trademark
Serial No. 75/297,144
5
Examining Attorney contends that these services are indeed
closely related. While applicant would have us focus on the
prominent role of physicians and other health care
professionals in choosing the services of registrant and of
applicant, the Trademark Examining Attorney would have us look
to the patients -- the health-care consumers of both of these
services.
We concur with applicant that these services are provided
by health care providers in distinct occupational niches
having different professional training. However, in reality,
applicant’s services dealing in the sale or rental of walkers,
wheelchairs and crutches are by definition complementary to
health care services such as providing physical therapy.
While admittedly these are not competing services, such
complementary use is most relevant in determining likelihood
of confusion. Where the marks are nearly identical, as is the
case here, applicant’s services need not be so closely related
to registrant’s services in order for there to be a likelihood
of confusion. In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984). Furthermore,
there is no evidence in the file supporting applicant’s claim
that applicant and others in its field do not place their
service marks anywhere on rented medical equipment, such as
wheelchairs.
Serial No. 75/297,144
6
As to the respective channels of trade, applicant argues
without evidence that members of the general public simply do
not expect these services to originate with the same source.
One could assert the opposite expectation just as persuasively
-- that some medical centers do provide on-site pharmacies,
and that it would not be unheard of for a facility dedicated
to physical therapy to offer a co-located and affiliated unit
where its patients can rent a set of crutches, a wheelchair,
cane or walker.
Turning to the conditions under which these services are
offered and purveyed, we agree with applicant that most
health-care patients seeking these services will be careful in
making this selection. However, we cannot assume that these
ultimate customers are necessarily sophisticated. While some
of the pharmaceuticals and equipment provided by applicant
will be chosen according to the prescription of a physician,
this alone does not guard against confusion on the part of the
patient. Furthermore, the listed supplies, drugs and
equipment also include over-the-counter items, where such
intervention will not be indicated.
As to the number and nature of similar marks in use on
similar services, applicant makes the claim that the cited
mark is weak in the health care field. However, other than
the registrations of a single third-party registrant placed in
Serial No. 75/297,144
7
the record by the Trademark Examining Attorney, there is also
no evidence in the file of the existence of another federal
registration in related areas of the health care field.
Finally, applicant asserts that despite more than ten
years of simultaneous usage, there is no evidence of any
actual confusion. However, there is no affidavit or other
evidence in the record to support such a statement. Moreover,
applicant has provided no information as to its sales or
advertising, such that we could conclude from the lack of
instances of actual confusion that confusion is not likely to
occur.
Decision: The refusal to register under Section 2(d) of
the Act is affirmed.
E. W. Hanak
D. E. Bucher
T. E. Holtzman
Administrative Trademark
Judges, Trademark Trial and
Appeal Board