Optical Sensors Inc.

Trademark Trial and Appeal Board

Aug 13, 2007

No. 78566607 (T.T.A.B. Aug. 13, 2007)

Mailed: August 13, 2007
GDH/gdh

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Optical Sensors Inc.
________

Serial No. 78566607
_______

Barbara A. Wrigley of Oppenheimer Wolff & Donnelly LLP for
Optical Sensors Inc.

John S. Yard, Trademark Examining Attorney, Law Office 115 (Tomas
V. Vlcek, Managing Attorney).
_______

Before Hohein, Grendel and Zervas, Administrative Trademark
Judges.

Opinion by Hohein, Administrative Trademark Judge:

Optical Sensors Inc. has filed an application to
register on the Principal Register in standard character form the
mark "ACQTRAC" for "non-invasive hemodynamic monitoring systems
for vascular and cardiovascular diagnostics, comprised of
monitoring and diagnostic devices for measuring hemodynamic
variables" in International Class 10.1
Registration has been finally refused under Section
2(d) of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the

1 Ser. No. 78566607, filed on February 14, 2005, which is based on an
allegation of a bona fide intention to use such mark in commerce.

THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser. No. 78566607
2
mark "ACCUTRACKER," which is registered on the Principal Register
in standard character form for "ambulatory blood pressure
monitors" in International Class 10,2 as to be likely to cause
confusion, or to cause mistake, or to deceive.
Applicant has appealed and has filed a brief.3 The
Examining Attorney has filed a brief.4 We reverse the refusal to
register.

2 Reg. No. 2,113,366, issued on November 18, 1997, which sets forth a
date of first use of the mark anywhere and in commerce of February 15,
1985; combined affidavit §§8 and 15.

3 While a reply brief has not been submitted, applicant has filed, more
than three months after such brief was due, a request for remand and
amendment of the application. Specifically, applicant requests that
the identification of its goods be amended to read: "Non-invasive
hemodynamic systems for diagnosing vascular and cardiovascular
parameters, comprised of a diagnostic device for measuring hemodynamic
variables." Applicant states, in support thereof, that it "believes
that the amended identification of goods further distinguishes its
mark from the mark in Registration No. 2113366, and therefore
respectfully requests that the Board remand the application to the
Examining Attorney for further consideration of the application in
light of this amendment." However, TBMP §1205.01 (2d ed. rev. 2004)
provides in relevant part that (footnote omitted):

If an applicant that has filed a timely appeal to the
Board files an amendment to its application more than six
months after the issuance of the final action, ... the Board
will treat the amendment as a request for remand. Such a
request will be granted upon a showing of good cause. Good
cause will be found, for example, ... when the amendment
will obviate a ground for refusal. .... Remand in an ex
parte appeal is a matter of discretion with the Board, and
the Board may refuse to remand for consideration of an
amendment filed more than six months after the date of the
action from which the appeal was taken, if, for example, the
amendment ... would serve no useful purpose.

In this instance, the request for remand is denied since good cause
therefor has not been shown. Applicant has not only failed to provide
any explanation for its delay in seeking to amend its identification
of goods until several months after completion of all briefing with
respect to the issue of likelihood of confusion in this appeal, but it
offers no indication that the Examining Attorney subsequently has
agreed to allow registration upon entry of the proposed amendment.

4 The Examining Attorney, noting in his brief that "applicant relies on
evidence attached to its brief which does not appear as part of the
record prior to appeal," has specifically objected to consideration of
Ser. No. 78566607
3
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence which are relevant to
the factors bearing on the issue of whether there is a likelihood
of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 568 (CCPA 1973). However, as indicated in
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098,
192 USPQ 24, 29 (CCPA 1976), in any likelihood of confusion
analysis, two key considerations are the similarity or
dissimilarity in the goods at issue and the similarity or
dissimilarity of the respective marks in their entireties.5 Two
other key factors in this case concern the conditions under which
and buyers to whom sales of the goods at issue are made and the
similarity or dissimilarity of established, likely to continue
trade channels for such goods.
Applicant, in support of its arguments that confusion
is not likely, has made of record the declaration of Paulita

the following evidence attached to applicant's brief on the ground
that such evidence is untimely under Trademark Rule 2.142(d): "[T]he
report dated December 12, 2006 from Dave Wright of the Marksmen
research group providing information on the registrant and its
ACCUTRACKER mark, and the attached new registration printout evidence"
consisting of four third-party registrations for the marks "ACCUTRAC"
and "ACCU-TRAC" for goods in International Class 10 and a list of
other third-party registrations for marks in such class which contain
the prefix "ACCU" or the suffix "TRAC" or variations thereof.
Inasmuch as Trademark Rule 2.142(d) provides in relevant part that
"[t]he record in the application should be complete prior to the
filing of an appeal" and that the Board "will ordinarily not consider
additional evidence filed with the Board by the appellant ... after
the appeal is filed," the objection is sustained and no further
consideration will be given to the untimely evidence attached to
applicant's brief.

5 The court, in particular, pointed out that: "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."
192 USPQ at 29.

Ser. No. 78566607
4
LaPlante, its "President, Director and CEO," which provides in
relevant part that:
1. Applicant['s] ... non-invasive
hemodynamic monitoring system includes
complex monitoring and diagnostic
devices for measuring hemodynamic
variables and providing data pertaining
to vascular and cardiovascular
diagnostics. Heart clinics, cardiology
offices and endocrinology practices that
specialize in heart failure use
Applicant's non-invasive hemodynamic
monitoring system to monitor and titrate
drug therapy, monitor cardiovascular
disease progression and/or diagnose
disease states.

2. Applicant's non-invasive hemodynamic
monitoring system costs approximately
$40,000 with disposable sets selling for
$10 each.

3. Applicant's non-invasive hemodynamic
monitoring systems are directly marketed
to offices and out-patient facilities
where heart patients are frequently
seen, including heart failure clinics,
cardiology offices and endocrinology
practices that specialize in heart
failure. The sales process for
Applicant's non-invasive hemodynamic
monitoring systems is lengthy and
involves in depth analysis of a
customer's needs and extensive
consultation with the customer's
cardiologists and endocrinologists.
Applicant's non-invasive hemodynamic
monitoring systems are sold via a mix of
direct sales and distribution networks.
Applicant supports distributors in the
distribution networks by providing
customer training and demonstrations of
Applicant's non-invasive hemodynamic
monitoring system on patients. After
purchase, distributors install
Applicant's non-invasive hemodynamic
monitoring system with or without
support from Applicant.

4. Applicant's products and services are
extremely sophisticated and would only
be purchased after careful and lengthy
Ser. No. 78566607
5
consideration and study of Applicant's
system by someone with a sophisticated
knowledge of vascular and cardiovascular
diagnostic needs. ....

Based upon such declaration, applicant contends that
its goods differ significantly from the registrant's goods and
asserts that "there is no evidence at all to suggest that the
relevant purchasing public would expect Applicant's products to
be available from the same source as ... [the registrant's]
products." Applicant insists, furthermore, that the channels of
trade for the respective goods are different; that its goods are
costly; and that "the consumer group associated with Applicant's
goods is highly sophisticated." Applicant notes, moreover, that:
Significantly, the medical community is not
homogenous; it is highly segmented thus
making confusion unlikely. Astra Pharm.
Prod., Inc. v. Beckman Instruments, Inc., 220
USPQ 786, 791-92 (1st Cir. 1983) (no
likelihood of confusion, in part because
hospital personnel are sophisticated
purchasers). ....

In particular, applicant maintains that the differences
in the goods at issue in this appeal make confusion unlikely,
stressing that:
Consumer confusion is unlikely because
Applicant's non-invasive hemodynamic
monitoring systems used for vascular and
cardiovascular diagnostics are sold to highly
sophisticated hospital professionals in the
medical industry that would not confuse
Applicant's product with ... products for
ambulatory blood pressure monitoring.
Applicant's customers purchase Applicant's
product to treat cardiovascular disease
patients using comprehensive hemodynamic
information, including heart rate, cardiac
output, cardiac index, stroke volume, pre-
ejection period, left ventricular ejection
time, blood pressure, mean arterial pressure,
system vascular resistance, various
Ser. No. 78566607
6
contractility indices and thoracic fluid
status. This careful purchasing decision
makes confusion unlikely. In addition, ...
[the registrant] offers a small, reasonably
inexpensive portable blood pressure device.
Based on these differences ..., consumer
confusion is unlikely.

In determining whether goods and
services are related, "it is not enough that
the products may be classified in the same
category or that a term can be found that
describes the product." Signature Brands,
Inc. Substituted for Health O Meter, Inc. v.
Dallas Technologies Corporation, 1998 WL
80140 (T.T.A.B. 1998). .... Specifically,
all devices that measure blood pressure are
not considered similar so as to increase the
likelihood of confusion simply because they
involve measuring blood pressure; there must
be additional evidence that the context in
which today's consumers make decisions makes
confusion as to the source of ... [the
respective] goods likely.

Applicant argues, in this respect, that "the Examining
Attorney has not met the burden of proving that ... [the
respective] medical products are sufficiently related that
confusion is likely to result" inasmuch as the evidence made of
record (as discussed in detail later in this opinion) by the
Examining Attorney, consisting of "copies of third-party
registrations" and "print-outs of websites," is inadequate
because applicant "has expressly stated that its goods relating
to hemodynamic monitoring are directed to uses other than
ambulatory blood pressure monitoring." In particular, applicant
contends that (underlining in original):
Applicant respectfully asserts that the
recitation of goods ... in the present
application ... [is] restricted to channels
of trade in which vascular and cardiovascular
diagnostic equipment is sold. Specifically,
Applicant's ACQTRAC mark is used in
combination with "non-invasive hemodynamic
Ser. No. 78566607
7
monitoring systems for vascular and
cardiovascular diagnostics, comprised of
monitoring and diagnostic devices for
measuring hemodynamic variables. In
contrast, ... [the registrant's] ACCUTRACKER
mark is used in combination with "ambulatory
blood pressure monitors." The term
"ambulatory" ... indicates that the ... blood
pressure monitors are used for out-patient
medical care. .... Accordingly, Applicant
respectfully asserts that ... [the
respective] medical products are not
sufficiently related such that confusion is
likely to result.

Applicant also insists, however, that even if the
respective goods "were both used in hospitals, this is not
sufficient to assume that the goods are closely related,
particularly where the consumers are sophisticated." Applicant
points out that "[i]t has long been recognized that purchasers of
medical equipment ... are highly sophisticated" and, as such, are
"more likely to distinguish between marks and goods than is the
general consuming public," citing In re N.A.D., 754 F.2d 996, 224
USPQ 969, 971 (Fed. Cir. 1985) [because anesthesia machines are
"elaborate, sizeable, complex pieces of technical apparatus of
the kind which would be purchased only in consultation with an
anesthesiologist or someone with equivalent technical knowledge,"
"only very sophisticated purchasers are here involved who would
buy with great care and unquestionably know the source of the
goods"]; Pfizer Inc. v. Astra Pharmaceutical Products Inc., 858
F.Supp. 1305, 33 USPQ2d 1545, 1562 (S.D.N.Y. 1994) ["[t]he
consumers here are doctors, as sophisticated a group as one could
imagine"]; and Astra Pharmaceutical Products, Inc. v. Beckman
Instruments, Inc., supra. Thus, applicant contends, while both
its goods and those of the registrant may be purchased, for
Ser. No. 78566607
8
example, by hospital personnel, its goods "are purchased by
hospital personnel working in heart clinics, cardiology offices
and endocrinology practices that specialize in vascular and
cardiovascular diagnostics, such as heart failure," as opposed to
registrant' goods, which "are likely purchased by a general
purchasing agent after being approved by committee and/or
hospital personnel." Therefore, "[b]ecause Applicant's goods are
purchased by specialized professionals working in vascular and
cardiovascular diagnostics while ... [the registrant's] goods are
purchased by other hospital personnel, consumer confusion is
highly unlikely" according to applicant.
Applicant additionally maintains that confusion is
unlikely because of the dissimilarity in the channels of trade
for the respective goods and the conditions under which and
buyers to whom sales thereof are made.6 Specifically, applicant
stresses that:

6
Although applicant also argues, based solely on various third-party
registrations, that "[t]here are currently numerous marks using the
common terms 'accutrac' and 'accutrak' as part of a trademark" and
that such serves to "demonstrate that consumers have learned to
differentiate among these marks without confusion, [thereby] making
confusion unlikely in this case," it is pointed out that the only
third-party registrations which are considered to be of record herein
are those which are listed in applicant's response to the initial
Office action. However, none of those is relevant inasmuch as the
Examining Attorney, in his final refusal, accurately noted that "[n]o
other similar 'accutrack' registered marks exist in the medical field
at large, let alone the blood pressure or heart monitoring medical
subfields." Moreover, and in any event, it is well settled that
third-party registrations are not evidence of what happens in the
marketplace or that the purchasing public is familiar with the use of
the marks which are the subjects thereof and has therefore learned to
distinguish those marks by the differences therein. See, e.g.,
National Aeronautics & Space Admin. v. Record Chem. Co., 185 USPQ 563,
567 (TTAB 1975). Such registrations therefore do not show that the
subject marks are actually being used, much less that the extent of
their use is and/or has been so great that customers have indeed
become accustomed to encountering the marks in the marketplace and
Ser. No. 78566607
9
Applicant's non-invasive hemodynamic
monitoring systems are directly marketed to
offices and out-patient facilities where
heart failure patients are seen, including
heart failure clinics, cardiology offices and
endocrinology practices that specialize in
heart failure. Applicant's system is also
sold through distributors who also provided
post-sale installation. .... Applicant
supports the distributors by providing
customer training and demonstrations of
Applicant's system on patients. .... Thus,
customers are introduced to Applicant's goods
... only through Applicant's approved
marketing and sales information.
Accordingly, customers know at all times the
source of the non-invasive hemodynamic
monitoring system.

....

It is unlikely that the consumers of
Applicant's non-invasive hemodynamic
monitoring system, who are highly
knowledgeable regarding vascular and
cardiovascular diagnostics, will believe that
... [the respective] goods derive from a
common source because the purchasing decision
is made with great care. When consumers
exercise heightened care in evaluating the

will differentiate among marks such as "ACQTRAC," "ACCUTRAC," "ACCU-
TRAK" or "ACCUTRACKER" by differences in the constituent elements
thereof. See, e.g., Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476 F.2d
1004, 177 USPQ 462, 463 (CCPA 1973); and AMF Inc. v. American Leisure
Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973), in which
the court indicated that:

[L]ittle weight is to be given such registrations in
evaluating whether there is likelihood of confusion. The
existence of these registrations is not evidence of what
happens in the market place or that customers are familiar
with them nor should the existence on the register of
confusingly similar marks aid an applicant to register
another likely to cause confusion, mistake or to deceive.

See also Olde Tyme Foods, Inc. v. Roundy's Inc., 961 F.2d 200, 22
USPQ2d 1542, 1545 (Fed. Cir. 1992) [third-party registrations "may not
be given any weight" (emphasis in original) as to the strength of a
mark]; and In re Hub Distrib., Inc., 218 USPQ 284, 285-86 (TTAB 1983).
Applicant's contention, therefore, that the du Pont factor which
concerns the number and nature of similar marks in use on similar
goods favors a finding of no likelihood of confusion is instead
neutral since it is without any evidentiary foundation.

Ser. No. 78566607
10
relevant products ... before making
purchasing decisions, there is not a strong
likelihood of confusion. Electronic Design &
Sales Inc. v. Electronic Data Systems Corp.,
954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir.
1992) ("there is always less likelihood of
confusion where goods are ... purchased after
careful consideration.")[.] .... As a
leading treatise notes, "the price level of
the goods ... is an important factor in
determining the amount of care the reasonably
prudent buyer will use. If the goods ... are
relatively expensive, more care is taken and
buyers are less likely to be confused as to
source or affiliation." 3 McCarthy on
Trademarks and Unfair Competition §23:95 (4th
ed. 1998). Similarly,

[w]here the relevant buyer class is
composed solely of professional, or
commercial purchasers, it is reasonable
to set a higher standard of care than
exists for consumers.

Id. at §23:101 .... ....

Here, the purchasers of Applicant's non-
invasive hemodynamic monitoring system are
highly sophisticated and purchase the system
only after a lengthy, highly involved sales
process. .... Purchasers of Applicant's
products place great importance on, and take
great care in, purchasing these products.
They must determine whether to purchase
Applicant's non-invasive hemodynamic
monitoring system by analyzing whether
Applicant's system will meet their needs, and
by comparing particular technical, medical
information to goods and services provided by
Applicant's competitors. .... These
customers do not purchase Applicant's system
on impulse, but rather apply a careful
decision[-]making process that commonly takes
place over a period of time and involves
numerous contacts with Applicant's sales
force or authorized distributors. .... The
selection of Applicant's product is made at a
very high level by highly knowledgeable
purchasers.

Furthermore, the care with which
Applicant's customers make their decisions is
heightened by the fact that Applicant's non-
invasive hemodynamic monitoring systems are
Ser. No. 78566607
11
extremely costly. Applicant's systems cost
$40,000 with disposable sets costing $10
each. .... Because of the significance and
high cost of Applicant's systems, consumers
take extreme care in making purchasing
decisions and it is highly unlikely that they
will be confused as to the source of
Applicant's non-invasive hemodynamic
monitoring system and ... [the registrant's]
ambulatory blood pressure monitors.

The Examining Attorney, on the other hand, dismisses
applicant's arguments, asserting in his brief that there is a
likelihood of confusion because the marks at issue are "highly
similar" in sound, appearance and connotation and "impart the
same commercial impression," while the respective goods "are
highly related if not identical in both field and function."
Specifically, he contends that the marks "ACQTRAC" and
"ACCUTRACKER" are essentially equivalents inasmuch as "[t]he only
real difference in the marks is the suffix '-ER' contained in the
registrant's mark." The commercial impression of each mark, he
maintains, "is the connotation of the accurate tracking of one's
vital signs, blood pressure and cardiovascular and hemodynamic
data." Furthermore, even if such marks are considered "weak," he
insists that the registrant's mark is "still entitled to
protection against registration by a subsequent user of the same
or similar mark for the same or closely related goods," citing
Hollister Inc. v. Ident A Pet, Inc., 193 USPQ 439 (TTAB 1976).
As to the respective goods, the Examining Attorney
insists that applicant's "non-invasive hemodynamic monitoring
systems for vascular and cardiovascular diagnostics, comprised of
monitoring and diagnostic devices for measuring hemodynamic
variables," and registrant's "ambulatory blood pressure monitors"
Ser. No. 78566607
12
are "highly related" in that "applicant's goods monitor blood
pressure in addition to additional hemodynamic variables."7 Both
products, he contends, are shown by the evidence of record to be
"medical devices used for cardiovascular diagnostics and
monitoring" and, as such, would be "found in the same medical
channels of trade."
In support of his position, the Examining Attorney
asserts that he has made of record "substantial evidence"
demonstrating the relatedness of the applicant's and registrant's
respective goods. Specifically, he contends that:
Included as evidence of the similarity of the
respective goods and channels of trade are
copies of printouts from the USPTO X-Search
database, which show third-party
registrations of marks used in connection
with the same or similar goods and/or
services as those of applicant and registrant
in this case. These printouts have probative
value to the extent that they serve to
suggest that the goods and/or services listed
therein, namely hemodynamic monitoring
equipment and blood pressure monitoring
equipment, are of a kind that may emanate
from a single source. See In re Infinity
Broadcasting Corp. of Dallas, 60 USPQ2d 1214,
1217-1218 [sic] (TTAB 2001); In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993); In re Mucky Duck Mustard Co.
Inc., 6 USPQ2d 1467, 1470 at n.6 (TTAB
1988)[, aff’d as not citable precedent, No.

7 The term "hemodynamic," he notes for the first time in his brief, is
the adjectival form of the noun "hemodynamics," which The American
Heritage Dictionary of the English Language (3rd ed. 1992) defines as
"the study of the forces involved in the circulation of the blood."
Inasmuch as it is settled that the Board may properly take judicial
notice of dictionary definitions, the implicit request that the Board
take judicial notice of such definition is granted. See, e.g.,
Hancock v. American Steel & Wire Co. of New Jersey, 203 F.2d 737, 97
USPQ 330, 332 (CCPA 1953); University of Notre Dame du Lac v. J. C.
Gourmet Food Imports Co., Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d,
703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); and Marcal Paper Mills,
Inc. v. American Can Co., 212 USPQ 852, 860 n.7 (TTAB 1981).

Ser. No. 78566607
13
88-1444 (Fed. Cir. Nov. 14, 1988)]. The
goods in these registrations as identified
can each be seen to identify either
ambulatory blood pressure monitors,
hemodynamic monitoring systems, or both.
These registrations further indicate that the
respective goods come from the same family or
genus of goods.

Evidence from internet webpages has also
been made of record showing that the
applicant's and registrant's goods and their
parts and accessories are found in the same
channels of trade, perform the same function,
and may in fact even be the same goods.
Included in this evidence are the following
excerpts:

• Wilburn Medical USA online catalog
webpage showing "vital sign monitors."
On this page is shown an ambulatory
blood pressure monitor such as that of
the ... [registrant], in addition to
more comprehensive hemodynamic
monitoring systems such as that of the
applicant.
• A webpage product list from Lidco
Cardica Systems showing parts and
assemblies for both hemodynamic monitors
and blood pressure monitors.
• Webpage product information on an Otsuka
Electronics ambulatory blood pressure
monitor, which provides hemodynamic
parameters such as systolic, diastolic
and mean pressure, cardiac output, heart
rate, stroke volume, left ventricle
ejection time, total peripheral
resistance, inter-beat interval, aortic
impedance and aortic compliance[.]
• A Cardiodynamics product information
webpage showing that its BioZ
noninvasive hemodynamic monitor is
"compact, lightweight and portable[.]"
• A December 1, 2005 article from
Electronic Design online Magazine,
entitled "Changing the Face of Blood
Pressure Monitoring[,]" which discusses
technological advances in the field of
blood pressure and hemodynamic
monitoring and analysis.

This information is significant in that not
only do the applicant's goods move in the
Ser. No. 78566607
14
same channels of trade [as those of the
registrant's goods], but that differences
between the [respective] goods may be so
minimal that they may even be considered the
same goods. For example, the Otsuka
Electronics ambulatory blood pressure monitor
would appear to perform the same advanced
functions as a hemodynamic monitoring system
such as that of the applicant. Conversely,
the BioZ hemodynamic monitor would appear to
be compact, lightweight and portable enough
that it could be suitable for ambulatory use.

Moreover, this evidence shows that a
"hemodynamic monitoring system" is in essence
the latest, state of the art enhancement of
the blood pressure monitor in the rapidly
advancing field of medical diagnostic
technology. As such, these are not two
distinctly different products, as the
applicant suggests, so much as a standard
version and an enhanced version of the same
product. ....

Furthermore, in response to applicant's assertion that
the registrant "offers a small, reasonably inexpensive portable
blood pressure device," the Examining Attorney, citing In re
Dakin's Miniatures Inc., 59 USPQ2d 1593, 1595 (TTAB 1999),
correctly states that "[a] determination of whether there is a
likelihood of confusion is made ... on the basis of the goods ...
[as] identified in the application and registration, without
limitations or restrictions that are not reflected therein."
Here, the Examining Attorney points out, "nothing in the record
indicates that the registrant's goods are 'small' or low-priced."
Instead, he insists, the evidence of record "shows that high-end
blood pressure monitors in the marketplace can perform all of the
features of applicant's hemodynamic monitoring system." Noting,
moreover, that applicant "seems to try to carve out an
exceedingly narrow channel of trade for itself," the Examining
Ser. No. 78566607
15
Attorney maintains that he "has provided strong evidence of
relatedness and channels of trade by way of third[-]party
registrations and internet webpage evidence." In addition, as to
applicant's contention that because its goods are identified as
being "for vascular and cardiovascular diagnostics," such goods
are limited to channels of trade which are separate from those
for registrant's ambulatory blood pressure monitors, the
Examining Attorney insists that "[t]his argument is rather
semantic and unpersuasive" in that:
Applicant again creates an exceedingly narrow
distinction, and it is one without a
difference. As shown in the evidence,
ambulatory blood pressure monitors serve
clear diagnostic functions, for example,
diagnosing low blood pressure or high blood
pressure, which can be done at a precise
point in time, over a period of time and/or
while engaged in various activities.
Ambulatory blood pressure monitors, such as
the Otsuka Electronics ambulatory blood
pressure monitor shown in the evidence of
record, measure and record all of the
hemodynamic variables that applicant's
hemodynamic measuring system measures and
records. The respective goods accordingly
serve similar diagnostic purposes. Finally,
applicant's goods, notwithstanding the
limiting language, clearly serve a
significant monitoring function, as do the
... registrant's goods, based on the simple
and clear wording of the identification of
goods.

With respect to applicant's assertion that the goods at
issue would be bought by different, highly sophisticated
personnel, the Examining Attorney urges that, notwithstanding the
declaration furnished by applicant, "it is difficult to believe
that those charged with purchasing [ambulatory] blood pressure
monitors would be completely different and removed from those
Ser. No. 78566607
16
charged with purchasing [non-invasive] hemodynamic monitoring
systems." "This would be especially so," he argues, "in the
context of specialized medical practices, likely consisting of
several doctors and a small support staff, which the applicant
sees among its primary consumers, or the case of small hospitals
or clinics." Moreover, while essentially conceding that the
goods at issue would be purchased by sophisticated and careful
buyers, who would decide to purchase only after much deliberation
and consideration, the Examining Attorney, citing inter alia In
re Decombe, 9 USPQ 1812, 1814-15 (TTAB 1988) and In re Pellerin
Milnor Corp., 221 USPQ 558, 560 (TTAB 1983), contends that "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 from source confusion."
Lastly, as to applicant's reliance on In re N.A.D.,
supra, as authority for a finding of no likelihood of confusion
in this appeal, the Examining Attorney distinguishes such case by
noting that "the crucial and deciding fact" therein was that
"there was a consent agreement of record" which was "given great
weight." The Examining Attorney also take issue with applicant's
reliance on Astra Pharm. Prod., Inc. v. Beckman Instruments,
Inc., supra, contending that while, as in that case, "a hospital
community is not a homogeneous whole, but is composed of separate
departments with diverse purchasing requirements," in this appeal
"the stratification of purchasing departments urged by applicant
as to highly related blood monitoring goods would seem unlikely
Ser. No. 78566607
17
at best in the vast majority of hospitals, and wholly
inapplicable to smaller, specialty cardiac medical practices."
Upon careful consideration of the arguments and
evidence presented, we find that a likelihood of confusion has
not been shown on this record. While, concededly, the marks
"ACQTRAC" and "ACCUTRACKER" are indeed very similar in sound,
appearance, connotation and commercial impression, we disagree
with the Examining Attorney that such marks are essentially
equivalents inasmuch as "[t]he only real difference in the marks
is the suffix '-ER' contained in the registrant's mark."
Applicant's mark, unlike registrant's mark, utilizes the
noticeably different spelling "ACQ" to suggest the term
"accurate," unlike the "ACCU" portion of registrant's mark, and
ends with the term "TRAC" instead of the word "TRACKER" as is the
case with registrant's mark. Although both marks, in particular,
nonetheless project basically the same overall connotation and
commercial impression of accurate tracking of blood pressure or
other vascular and cardiovascular data as contended by the
Examining Attorney, such marks are also inherently "weak" in that
they are highly suggestive of a characteristic of monitoring
equipment, including applicant's non-invasive hemodynamic
monitoring systems and registrant's ambulatory blood pressure
monitors. Consequently, as a general proposition, the marks at
issue herein are of the kind which would not be entitled to as
broad a scope of protection as would be the case with arbitrary
or other types of "strong" marks. See, e.g., Sure-Fit Products
Co. v. Saltzson Drapery Co., 254 F.2d 158, 117 USPQ 295, 297
Ser. No. 78566607
18
(CCPA 1958) ["[i]t seems both logical and obvious ... that where
a party chooses a trademark which is inherently weak, he will not
enjoy the wide latitude of protection afforded the owners of
strong trademarks"]. Absent, therefore, use of the marks at
issue in connection with the same or highly related goods,
confusion would generally not be likely.
Turning, then, to whether applicant's "non-invasive
hemodynamic monitoring systems for vascular and cardiovascular
diagnostics, comprised of monitoring and diagnostic devices for
measuring hemodynamic variables," are "highly related if not
identical in both field and function" to registrant's "ambulatory
blood pressure monitors" as contended by the Examining Attorney,
we disagree with the Examining Attorney that the record contains
"substantial evidence" of the commercial relatedness of the
respective goods, such that their contemporaneous marketing under
the highly suggestive marks "ACQTRAC" and "ACCUTRACKER" would be
likely to cause confusion as to source or sponsorship. While the
Wilburn Medical USA online catalog webpage does indeed list,
under the category of "vital sign monitors," both a
"CardioDynamics BioZ ... non-invasive hemodynamic monitor that
reports cardiac output, systemic vascular resistance,
contractility, and fluid status" as well as a "Tiba SE-25S ...
24-Hour ambulatory blood pressure monitor that allows you to
gather blood pressure measurements outside of the clinical
setting," such webpage, which also lists various "vital signs"
and "multi-parameter" monitors, is the sole piece of evidence
that tends to show that goods like applicant's and registrant's
Ser. No. 78566607
19
may be sold in the same channels of trade. However, as other
information on such webpage makes readily apparent, Wilburn
Medical appears to be a large medical supply house for hospital
and other purchasers and its online catalog covers virtually
every kind of medical equipment available, including for example
"Cholesterol Testing," "Bone Density Testing," "Diabetic Testing"
and "Skincare" products as well as "Syringe Pumps," "Urine
Analyzers" and "IV Administration Products." Nonetheless,
whether such goods, and in particular non-invasive hemodynamic
monitoring systems and ambulatory blood pressure monitors would
in fact be sold to the same class or classes of individual
purchasers is simply not apparent from such evidence alone.
As to what the Examining Attorney refers to as a
"webpage product list from Lidco Cardica Systems showing parts
and assemblies for both hemodynamic monitors and blood pressure
monitors," such excerpt upon inspection actually pertains only to
a "Hemodynamic Monitor Assembly" which is sold in the United
Kingdom and is supplied with such items as a "Blood Pressure
Monitor Cable Assembly" and a "Power Cord"; there is nothing
which indicates that the "Hemodynamic Monitor Assembly" is
suitable for sale in the United States, much less that it
functions as an ambulatory blood pressure monitor. Similarly,
while a "24 Hours Continuous Blood Pressure Monitor" offered
through a webpage of "OTSUKA ELECTRONICS CO., LTD." is touted
with the statement that "[a]mbulatory monitoring is possible not
only for blood pressure but also hemodynamic parameters based on
arterial wareforms [sic] derived from fingers," such unit does
Ser. No. 78566607
20
not appear to provide the range of variables monitored by non-
invasive hemodynamic monitoring systems for vascular and
cardiovascular diagnostics" like, for instance, applicant's goods
do. Conversely, while the "CardioDynamics" product information
webpage indicates that its "BioZ" "[n]oninvasive hemodynamic
monitor" is advertised as "compact, lightweight and portable," it
is speculative to assume that such features, as the accompanying
picture of the product makes clear, mean that a non-invasive
hemodynamic monitor can function, or serve the same purpose, as
an ambulatory blood pressure monitor. Likewise, that a "December
1, 2005 article from Electronic Design online Magazine, entitled
'Changing the Face of Blood Pressure Monitoring[,]' which
discusses technological advances in the field of blood pressure
and hemodynamic monitoring and analysis," reports on a non-
invasive blood pressure cuff for use in connection with
monitoring of surgical patients does not demonstrate that such a
device may be purchased by the identical customers for, and be
utilized the same as, an ambulatory blood pressure monitor. That
is, even though such goods would appear to "serve similar
diagnostic purposes," it plainly is not the case that
"differences between the [respective] goods may be so minimal
that they may even be considered the same goods," as contended by
the Examining Attorney. In short, that non-invasive hemodynamic
monitoring systems, especially those used for vascular and
cardiovascular diagnostics, and ambulatory blood pressure
monitors both measure and monitor blood pressure does not
necessarily mean that such goods are commercially related in that
Ser. No. 78566607
21
they would be sold to the same classes of individual purchasers
and/or used by identical medical practitioners, even if sold to
and used by, for instance, heart clinics, cardiology offices and
endocrinology practices that specialize in heart failure use.
Additionally, with respect to the six use-based third-
party registrations made of record and relied upon by the
Examining Attorney to show that "the goods and/or services listed
therein, namely hemodynamic monitoring equipment and blood
pressure monitoring equipment, are of a kind that may emanate
from a single source," none is probative thereof inasmuch as
there is not a single registration which sets forth, on the one
hand, "hemodynamic monitoring systems" or similarly identified
goods, and "ambulatory blood pressure monitors" or the like
specified products, on the other. Such registrations, instead,
refer in each instance to a broad category of goods8 rather than
the particular products at issue in this appeal. Thus, just as
it is settled that while a term may be found which encompasses
the specific goods at issue, such does not mean that customers
will view those goods as commercially or otherwise closely
related in the sense that they will assume that they emanate from

8 For example, the third-party registrations variously list "medical
apparatus, namely, sensors for use with computer hardware and software
for monitoring and detecting physiological data in a patient,
specifically ... for hemodynamic monitoring including blood pressure
and electrocardiograms"; "patient monitoring systems and clinical
information systems"; "medical apparatus for hemodynamic monitoring,
namely, the measurement and display of blood pressure, blood flow,
vascular resistance and other information as to the state of the heart
and circulation"; "medical apparatus; namely a system for the
assessment, monitoring and management of human hemodynamic and oxygen
transport dynamics"; and "patient monitors and sensors for detecting a
physiological condition, namely, blood content monitoring ... and
hemodynamic monitoring including blood pressure."
Ser. No. 78566607
22
or are associated with a common source, see, e.g., General
Electric Co. v. Graham Magnetics Inc., 197 USPQ 690, 694 (TTAB
1977); and Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188
USPQ 517, 520 (TTAB 1975), the approach taken by the Examining
Attorney with respect to the third-party registrations which he
made of record is tantamount to finding an all-encompassing term
for applicant's and the cited registrant's goods rather than a
showing of relatedness in that the same parties typically offer
such goods under an identical mark. Consequently, the third-
party registrations of record are insufficient to show that the
goods at issue are commercially or otherwise closely related in
that they are of a type that may emanate from a single source.
See, e.g., In re W.W. Henry Co., 82 USPQ2d 1213, 1215 (TTAB
2007).
Nonetheless, even assuming that applicant's "non-
invasive hemodynamic monitoring systems for vascular and
cardiovascular diagnostics, comprised of monitoring and
diagnostic devices for measuring hemodynamic variables" and which
are used to monitor and titrate drug therapy, monitor
cardiovascular disease progression and/or diagnose disease states
in patients, would be purchased by the same hospital and medical
institutions, including heart clinics, cardiology offices and
endocrinology practices that specialize in heart failure, as
would also be buyers of registrant's "ambulatory blood pressure
monitors" for out-patient use, it seems clear that the purchasing
decisions for such goods would be made by highly sophisticated
and knowledgeable buyers under conditions of sale which would
Ser. No. 78566607
23
further minimize any likelihood of confusion as to source or
affiliation.
In particular, as Astra Pharmaceutical Products, Inc.
v. Beckman Instruments, Inc., supra at 220 USPQ 791, makes clear,
for a likelihood of confusion to exist, "it must be based on
confusion of some relevant person; i.e., a customer or user, and
there is always less likelihood of confusion where goods are
expensive and purchased and used by highly specialized
individuals after careful consideration." Here, as stated in the
declaration submitted by applicant, its non-invasive hemodynamic
monitoring systems "are directly marketed to offices and out-
patient facilities where heart patients are frequently seen,
including heart failure clinics, cardiology offices and
endocrinology practices that specialize in heart failure."
Moreover, as further noted therein, "[t]he sales process for
[such goods] ... is lengthy and involves in depth analysis of a
customer's needs and extensive consultation with the customer's
cardiologists and endocrinologists". Additionally, the
declaration furnished by applicant establishes that its non-
invasive hemodynamic monitoring systems are sold by way of both
direct sales as well as distribution networks; that applicant
supports the distributors in its distribution networks by
providing customer training and demonstrations of its product on
actual patients; that, after purchase, applicant's distributors
install its non-invasive hemodynamic monitoring systems (with or
without support from applicant); and that one of applicant's non-
invasive hemodynamic monitoring systems costs approximately
Ser. No. 78566607
24
$40,000. Furthermore, as to non-invasive hemodynamic monitoring
systems from sources other than applicant, there is nothing in
the record to indicate that such would be marketed and sold in
any different manner than that used for applicant's goods.
It is therefore clear that doctors, including
cardiologists and endocrinologists, would constitute the persons
who would make, or be primarily responsible for making, the
purchasing decisions with respect non-invasive hemodynamic
monitoring systems like those sold by applicant. Doctors would
be the individuals most knowledgeable of patient parameters which
require medical monitoring and would undoubtedly be the persons
most familiar with the equipment available for measuring and
tracking such variables. Doctors, therefore, have been held to
be highly discriminating and sophisticated purchasers. See,
e.g., Warner-Hudnut, Inc. v. Wander Co., 280 F.2d 435, 126 USPQ
411, 412 (CCPA 1960) [physicians constitute "a highly intelligent
and discriminating public]." As such, they would be expected to
exercise a high degree of care and deliberation in decisions
involving the purchasing of medical equipment to deal with their
patients' needs, including the selection of non-invasive
hemodynamic monitoring systems.
Likewise, as to registrant's goods, cardiologists,
endocrinologists and other doctors with the need to monitor a
patient's blood pressure outside of a hospital or clinical
setting would likely make or be responsible for making the
purchasing decision concerning ambulatory blood pressure
monitors, especially since the record shows, in view of the
Ser. No. 78566607
25
webpage of product information with respect to an Otsuka
Electronics ambulatory blood pressure monitor, that some models
of such goods can also provide information regarding "hemodynamic
parameters such as systolic, diastolic and mean pressure, cardiac
output, heart rate, stroke volume, left ventricle ejection time,
total peripheral resistance, inter-beat interval, aortic
impedance and aortic compliance." Such goods, while not nearly
as expensive perhaps as applicant's goods, would nevertheless be
bought with care and deliberation to ensure that they meet blood
pressure monitoring needs for ambulatory patients and, even if
not purchased after a lengthy and extensive consultation period
with the vendor thereof, would not be bought impulsively.
Plainly, in their capacity as buyers of goods of the
kinds sold by applicant and registrant, doctors constitute
sophisticated purchasers. As such, their "sophistication is
important and often dispositive because '[s]ophisticated
consumers may be expected to exercise greater care.'" Electronic
Design & Sales Inc. v. Electronic Data Systems Corp., supra at 21
USPQ2d 1392, quoting from Pignons S.A. de Mecanique de Precision
v. Polaroid Corp., 657 F.2d 482, 489, 212 USPQ 246, 252 (1st Cir.
1981). While, in this case, it is certainly possible for both
applicant's goods and registrant's goods to be purchased by the
same specialized medical practices, our principal reviewing court
in Electronic Design & Sales, supra at 21 USPQ2d 1391, has noted
that it is error to deny registration simply because an applicant
markets and sells its goods in the same general field as those
promoted and sold by the registrant (e.g., what the Examining
Ser. No. 78566607
26
Attorney herein has characterized as "medical devices used for
cardiovascular diagnostics and monitoring"), cautioning that:
We are not concerned with mere theoretical
possibilities of confusion, deception, or
mistake or with de minimis situations but
with the practicalities of the commercial
world, with which the trademark laws deal.

Id., quoting from Witco Chemical Co. v. Whitfield Chemical Co.,
418 F.2d 1403, 1405, 164 USPQ 43, 44-45 (CCPA 1969), aff'g, 153
USPQ 412 (TTAB 1967).
In summary, applicant's goods, as previously indicated,
clearly are quite expensive and registrant's goods, at a minimum,
would not be inexpensive. Both products, as noted earlier, would
be bought only by highly knowledgeable, discriminating and
sophisticated purchasers after thorough deliberation, with
applicant's goods additionally subject to a lengthy period
involving extensive consultation with a physician concerning an
in depth analysis of his or her heart failure patients' needs for
non-invasive hemodynamic blood monitoring as well as associated
training and demonstrations of applicant's product on actual
patients along with installation thereof after purchase is made.
Given the knowledge, care and deliberation required of doctors in
making the purchasing decisions with respect to applicant's and
registrant's goods, the noticeably distinguishable differences in
the marks "ACQTRAC" and "ACCUTRACKER," the weakness inherent in
such highly suggestive marks when used in connection with medical
monitoring equipment, and the lack of a sufficient showing that
the goods at issue are commercially or otherwise closely related,
we conclude on this record that contemporaneous use by applicant
Ser. No. 78566607
27
of the mark "ACQTRAC" for its "non-invasive hemodynamic
monitoring systems for vascular and cardiovascular diagnostics,
comprised of monitoring and diagnostic devices for measuring
hemodynamic variables," is not likely to cause confusion with
registrant's mark "ACCUTRACKER" for its "ambulatory blood
pressure monitors." See, e.g., In re Digirad Corp., 45 USPQ2d
1841, 1845 (TTAB 1998) [no likelihood of confusion between the
mark "DIGIRAD" for gamma radiation sensors, signal processors and
display apparatus for use in medical isotopic tracing and nuclear
imaging and mark "DIGIRAY" and design for electronic digital x-
ray system comprised of an x-ray scanning beam tube and detector
for medical use].
Decision: The refusal under Section 2(d) is reversed.