OsteoCentric Technologies, Inc.

Trademark Trial and Appeal Board

Dec 10, 2020

88169404 (T.T.A.B. Dec. 10, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: December 10, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re OsteoCentric Technologies, Inc.
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Serial No. 88169404
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Sarah Anne Keefe of Womble Bond Dickinson (US) LLP
for OsteoCentric Technologies, Inc.
Dominic R. Fathy, Trademark Examining Attorney, Law Office 104,
Zachary B. Cromer, Managing Attorney.
_____

Before Adlin, Heasley, and English,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Applicant, OsteoCentric Technologies, Inc., seeks registration on the Principal
Register of the standard character mark OSTEOCENTRIC for “medical and surgical
devices, namely, artificial implants and fasteners; surgical artificial implants and
fasteners and components, parts and fittings therefor” in International Class 10.1

1 Application Serial No. 88169404 was filed on Oct. 25, 2018, based on a declared intention
to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
On April 29, 2020, Applicant filed an amendment to allege use, which was accepted on July
31, 2020.
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The Trademark Examining Attorney has refused registration of Applicant’s mark
as to its Class 10 goods2 under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d),
on the ground of likelihood of confusion with the registered standard character marks
CENTRIC for “spinal implants made of artificial materials for use in cervical spinal
surgery and lumbar spinal surgery, namely, plates, screws, screw systems, interbody
devices, intrabody devices, rods, rod connectors, cross-connectors, spinous process
spacers, screwdrivers, and implant drivers”3 and CENTRIC MEDICAL (with
“MEDICAL” disclaimed) for “medical device equipment, namely, orthopedic implants
consisting of artificial materials, orthopedic implants comprising natural, non-living
materials, orthopedic instruments and surgical instruments,”4 both in International
Class 10 and both owned by the same Registrant.
When the refusal was made final, Applicant appealed and requested
reconsideration.5 After the Examining Attorney denied the request for

2 The application as filed also identified services in other International Classes. On February
8, 2019, the Examining Attorney refused registration solely as to Applicant’s Class 10 goods.
On March 11, 2020, Applicant filed a request to divide, separating Class 10. The request to
divide was completed on March 25, 2020, creating the parent application, which is the subject
of this appeal, and a child application, Serial No. 88977245, identifying “preparation and
treatment of human bone for surgical implants and fasteners” in Class 40, “providing
education in the form of courses, classes, seminars and live demonstrations in the field of
surgical implants and fasteners; providing education in the form of courses, classes, seminars
and live demonstrations in preparation and treatment of human bone for surgical implants
and fasteners” in Class 41, and “providing medical and surgical information in the field of
surgical implants and fasteners; providing medical and surgical information in preparation
and treatment of human bone for surgical implants and fasteners; surgical services; surgical
implantation services; medical services, namely, a surgical procedure in the nature of the
implantation of orthopedic implants and fasteners” in Class 44. The child application was
later published for opposition, and a notice of allowance has issued.

3 Registration No. 3955440 issued on the Principal Register on May 3, 2011; renewed.
4 Registration No. 5041952 issued on the Principal Register on Sept. 13, 2016.
5 4 TTABVUE; March 17, 2020 request for reconsideration. Page references to the application
record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document
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reconsideration,6 the appeal proceeded. We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). We base our determination of likelihood of confusion under Section 2(d) on
an analysis of all of the probative facts of record. See In re E. I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). In making our
determination, we have considered each DuPont factor for which there is evidence or
argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed.
Cir. 2019); see Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”)).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented in a particular case. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637
F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204,
26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play
more or less weighty roles in any particular determination”). “In any likelihood of
confusion analysis, two key considerations are the similarities between the marks

Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the
Board’s TTABVUE docket system.
6 5 TTABVUE; April 7, 2020 Office Action.
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and the similarities between the goods and services.” In re Chatam Int’l Inc., 380 F.3d
1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004), cited in Ricardo Media Inc. v. Inventive
Software, LLC, 2019 USPQ2d 311355, *5 (TTAB 2019).
A. Relatedness of the Goods, Channels of Trade,
and Classes of Customers

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital Partners, LP
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). A
proper comparison of the goods “considers whether ‘the consuming public may
perceive [the respective goods or services of the parties] as related enough to cause
confusion about the source or origin of the goods and services.’” In re St. Helena Hosp.,
774 F.3d 747, 113 USPQ2d 1082, 1086 (quoting Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)) quoted in In re
FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
Applicant “does not dispute that the parties’ goods are related for likelihood of
confusion purposes.”7 The Examining Attorney adds that the evidence shows that the
goods are, in fact, “highly related.”8 We agree.
We compare the goods as they are identified in the application and the cited
registrations. Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16

7 Applicant’s brief, 7 TTABVUE 3 n.1.
8 Examining Attorney’s brief, 9 TTABVUE 12.
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USPQ2d 1783, 1787 (Fed. Cir. 1990); In re Info. Builders Inc., 2020 USPQ2d 10444,
*2 (TTAB 2020). “[W]here the goods in an application or registration are broadly
described, they are deemed to encompass ‘all the goods of the nature and type
described therein….’” In re Solid State Design Inc., 125 USPQ2d 1409, 1413 (TTAB
2018) (quoting In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006)).
In this case, Applicant’s broadly-worded identification encompasses Registrant’s
more narrowly-worded identifications. See In re Hughes Furniture Indus., Inc., 114
USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of
‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and
commercial furniture.’”). Specifically, Applicant’s “medical and surgical devices,
namely, artificial implants and fasteners” encompass Registrant’s narrower
“spinal implants made of artificial materials for use in cervical spinal surgery
and lumbar spinal surgery, namely, plates, screws, screw systems, interbody devices,
intrabody devices, rods, rod connectors, cross-connectors, spinous process spacers,
screwdrivers, and implant drivers” and its “medical device equipment, namely,
orthopedic implants consisting of artificial materials, orthopedic implants
comprising natural, non-living materials, orthopedic instruments and surgical
instruments.” (Emphases added.) Orthopedics is “the medical specialty concerned
with correction of deformities or functional impairments of the skeletal system,
especially the extremities and the spine, and associated structures, as muscles and
ligaments.”9 In other words, Registrant’s spinal and orthopedic artificial implants are

9 Dictionary.com, July 31, 2019 Response to Office Action at TSDR 75.
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subsumed under Applicant’s more broadly identified artificial implants. Thus, the
goods are legally identical. See In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB
1992); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981).
Because the goods are legally identical, they are presumed to travel through the
same channels of trade to the same classes of purchasers. In re Yawata Iron & Steel
Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968); In re FabFitFun, 127 USPQ2d
at 1672-73.
The second and third DuPont factors accordingly weigh in favor of a likelihood of
confusion.
B. Similarity of the Marks
Under the first DuPont factor, we consider the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1692 (Fed. Cir. 2005). “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) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014),
aff’d 777 Fed. Appx. 516 (Fed. Cir. 2019)).
“The legal identity of Applicant’s and Registrant’s goods and their overlapping
channels of trade and classes of purchasers not only weigh heavily in favor of a finding
of likelihood of confusion, but also reduce the degree of similarity between the marks
necessary to find a likelihood of confusion. In re Viterra Inc., 671 F.3d 1358, 101
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USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Mighty Leaf Tea, 94 USPQ2d at 1260; In
re Max Capital Group Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010).” In re Aquamar,
Inc., 115 USPQ2d 1122, 1126 (TTAB 2015).
Applicant argues that as used in the marketplace, Applicant’s and Registrant’s
marks look different:

10
However, we do not consider how Applicant and Registrant use their marks, but only
how they appear in the drawings in the cited registration and involved application. In re
Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018). Here, as the
Examining Attorney notes,11 the registered and applied-for marks are in standard
characters, which are not limited to any particular font, size, style, or color. Thus the
rights associated with these standard character marks reside in their wording, and
not in any particular display, even if that particular display is in actual use. In re
Viterra, 101 USPQ2d at 1909-11; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ
937, 939 (Fed.Cir. 1983); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1090 (TTAB
2016).

10 Applicant’s brief, 7 TTABVUE 11-12.
11 Examining Attorney’s brief, 9 TTABVUE 9-10.
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The marks’ wording differs, Applicant contends, as its prefix “OSTEO,” conveys a
different connotation from Registrant’s “CENTRIC” marks. According to dictionary
definitions, the prefix “OSTEO-” is “a combining form meaning ‘bone,’ used in the
formation of compound words: [e.g.] “osteometry.”12 The suffix “-CENTRIC” is “a
combining form with the meanings ‘having a center or centers of the specified number
or kind (polycentric); ‘centered upon, focused around’ that named by the first element
(enthnocentric; heliocentric).”13 A “combining form” “is a form of a word that only
appears as part of another word.”14 For example, “concentric” means “having a
common center [e.g.] concentric circles.”15 So once the prefix and suffix are combined,
Applicant concludes, “OSTEOCENTRIC” means “bone-centered or bone-focused.”16
“It is the first part of Applicant’s Mark (i.e., the component ‘OSTEO-’), “which is
most likely to be impressed upon the mind of a purchaser and remembered,”
Applicant maintains—not the combining form “-CENTRIC,” which merely means
“centered upon, focused around” that named by the first element.17 So even if
“OSTEO” is descriptive or generic for bone implant goods, Applicant argues, “it
simply cannot be that the component ‘-CENTRIC’ is the more dominant element of
Applicant’s mark.”18 “Consumers encountering Applicant’s OSTEOCENTRIC mark

12 Dictionary.com, July 31, 2019 Response to Office Action at TSDR 29.
13 Dictionary.com, July 31, 2019 Response to Office Action at 31.
14 Merriam-Webster.com, March 17, 2020 Response to Office Action (request for
reconsideration) at 233.
15 Merriam-Webster.com, March 17, 2020 Response to Office Action (request for
reconsideration) at 239.
16 Applicant’s brief, 7 TTABVUE 13.
17 Applicant’s brief, 7 TTABVUE 14.
18 Id.
Serial No. 88169404
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would readily understand the linguistic function of the combining form ‘-CENTRIC’
(as opposed to a source identification function) and would consider the mark in its
entirety to mean ‘bone-focused.’”19
The Examining Attorney, relying on similar dictionary definitions, counters that
“the wording OSTEO refers to ‘bone’ or ‘relating to the bones.’ … In terms of function,
the modifier ‘OSTEO’ is arguably highly descriptive and is less significant in affecting
the mark’s commercial impression, rendering the word CENTRIC the more dominant
element of the mark.”20
We find that this debate over the “dominant” versus “subordinate” parts of
OSTEOCENTRIC largely misses the point. Both “OSTEO” and “CENTRIC” are
combining forms, which derive a measure of their character and color from the terms
to which they are attached. The cited mark CENTRIC registered on the Principal
Register without a showing of acquired distinctiveness under Section 2(f) of the
Trademark Act, 15 U.S.C. § 1052(f), so we presume that it is inherently distinctive.
New Era Cap Co. v. Pro Era LLC, 2020 USPQ2d 10596, *10 (TTAB 2020) (“Opposer’s
mark is inherently distinctive as evidenced by its registration on the Principal
Register without a claim of acquired distinctiveness under Section 2(f) of the
Trademark Act.”); Tea Board of India v. Republic of Tea, Inc., 80 USPQ2d 1881, 1889
(TTAB 2006) (same). That means CENTRIC is, at worst, suggestive. In re Fiesta

19 Applicant’s brief, 7 TTABVUE 15.
20 Examining Attorney’s brief, 9 TTABVUE 7 (citingCollinsDictionary.com: “osteo- : a
combining form meaning ‘bone,’ used in the formation of compound words [e.g.] osteometry”)
Sept. 17, 2019 Office Action at 6.

Serial No. 88169404
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Palms, 85 USPQ2d 1360, 1363 (TTAB 2007) (citing In re Dixie Rests. Inc., 105 F.3d
1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997)). The other cited registered mark
adds the term “MEDICAL,” but that is rightly disclaimed as generic, and has less
significance in our analysis. In re Information Builders, 2020 USPQ2d 10444 at *7
(“Disclaimed, generic or descriptive matter generally has less significance in
likelihood of confusion determinations.”). In both cited registered marks, CENTRIC
is the inherently distinctive term.
Applicant’s prefix, “OSTEO,” is merely descriptive, as it pertains or relates to
bone. Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d
1844 (TTAB 2017) (to be merely descriptive, “it is enough that the terminology
describes one significant attribute or function of the goods.”). Its descriptiveness is
supported by dictionary definitions, and Applicant does not dispute its descriptive
nature. Combined, OSTEO and CENTRIC mutually reinforce the connotation that
Applicant’s goods are “bone centered or bone focused.”21 See In re Aquamar, 115
USPQ2d at 1126 (legal identity of goods reduces degree of similarity of marks needed
to find likelihood of confusion).
Applicant argues: “[e]vidence that the component “CENTRIC” is frequently
registered and used by others in the medical apparatus field provides support that
the Cited Marks are weak, diluted, or so widely used that they should not be afforded
a broad scope of protection.”22 “As shown in the chart below, there are almost 20 third-

21 Applicant’s brief, 7 TTABVUE 13.
22 Applicant’s brief, 7 TTABVUE 4.
Serial No. 88169404
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party registrations for marks containing the component ‘CENTRIC’ for use in the
medical apparatus field, which are currently coexisting with the Cited Marks”:

Serial No. 88169404
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Serial No. 88169404
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23

23 Applicant’s brief, 7 TTABVUE 17-20, July 31 2019 Response to Office Action at 83-99,
March 17 2020 request for reconsideration at 39-50. Applicant originally relied on nearly 50
Serial No. 88169404
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To this Applicant adds “evidence of use for the active registered marks listed in
the table above”24 and a search report from the U.S. Food and Drug Administration
website listing over 70 medical devices with the component “CENTRIC” as part of the
proprietary name.25 From this third-party evidence, Applicant infers that “the
combining form ‘-CENTRIC’ cannot be the dominant portion of Applicant’s
OSTEOCENTRIC mark.”26
The Examining Attorney responds that only the first listed third-party
registration to which Applicant alludes, DUOCENTRIC, involves medical implants.
The rest, comprising different or unrelated goods, such as a “therapeutic mouthpiece,”
“hearing aids”, and “medical specimen cups,” have “no bearing on the strength of the
term in the context relevant to this case,” he contends, citing In re i.am.symbolic, llc,
866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017).27 Furthermore, he argues,
the FDA evidence of “CENTRIC” proprietary names for medical devices, if accepted,
would fail to accord the cited registered marks the validity to which they are
entitled.28 15 U.S.C. § 1057(b).

third-party registrations and applications, about half of which were cancelled. 7 TTABVUE
4-9. A cancelled registration is only evidence that the registration issued, and has little, if
any, probative value. TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1117 (TTAB 2019).
Similarly, pending or abandoned applications are evidence only that they were filed; they
possess little or no other evidentiary value. In re Mr. Recipe, LLC, 118 USPQ2d at 1089. It
was thus appropriate for Applicant to narrow its focus to the 19 third-party registrations in
the table above.
24 March 17, 2020 request for reconsideration, ex. B at 112-158.
25 Applicant’s brief, 7 TTABVUE 11; March 17, 2020 request for reconsideration, ex. B, 4
TTABVUE 115-162), ex. C, 4 TTABVUE 163-207.
26 Applicant’s brief, 7 TTABVUE 21.
27 Examining Attorney’s brief, 9 TTABVUE 8.
28 Examining Attorney’s brief, 9 TTABVUE 9.
Serial No. 88169404
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Applicant responds that “the medical apparatus field (as opposed to implant
specific goods only) is an appropriate measure to determine the strength of the Cited
Marks. [This field includes the] third-party registration for DUOCENTRIC, which is,
in fact, for use with implant specific goods.”29
Third-party registrations can be used in the manner of a dictionary definition to
illustrate how a term is perceived in the trade, industry, or ordinary parlance. Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir.
2015); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015)
cited in New Era Cap v. Pro Era, 2020 USPQ2d 10596 at *12. Used in this way, they
can show that a term is suggestive or descriptive of the relevant goods or services. In
re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016). Here,
the nineteen third-party registrations submitted by Applicant corroborate the
dictionary definitions showing that “CENTRIC,” as used on medical devices, suggests
that they center on a certain subject. See Tektronix, Inc. v. Daktronics, Inc., 534 F.2d
915, 189 USPQ 693, 684-95 (CCPA 1976) (third-party registrations “may be given
some weight to show the meaning of a mark in the same way that dictionaries are
used”).
In this case, however, none of the third-party registered marks is as similar to
Registrant’s cited “CENTRIC” marks as Applicant’s mark. See In re I-Coat Co., 126
USPQ2d 1730, 1735 (TTAB 2018) (“none of the [third-party] marks are as similar to

29 Applicant’s brief, 7 TTABVUE 10.
Serial No. 88169404
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the mark in the cited registration as is Applicant’s mark.”). The closest of the third-
party marks, DUOCENTRIC, suggests, but does not describe, the two sorts of
implants in the “orthopedic kit” that the registration identifies.30 OSTEOCENTRIC,
in contrast, directly describes the bone-related nature of Applicant’s implants. In so
doing, it is much closer to the cited registered “CENTRIC” marks than any of the
third-party registered marks. See In re Information Builders, 2020 USPQ2d 10444 at
*8 (citing Palisades Pageants, Inc. v. Miss Am. Pageant, 442 F.2d 1385, 169 USPQ
790, 793 (CCPA 1971) (discounting probative value of third-party registrations where
“appellant’s mark is closer to appellee’s than even the closest of the third-party
registrations”)). See also Inn at St. John’s, 126 USPQ2d at 1745-46. Hence, the third-
party registrations, as well as the list of medical devices containing the term
“CENTRIC,” do not diminish the protection to which the cited marks are entitled
against Applicant’s mark, used on legally identical goods.
“The Lanham Act provides national protection of trademarks in order to secure to
the owner of the mark the goodwill of his business and to protect the ability of
consumers to distinguish among competing producers.” Park ‘N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985). Applicant cannot evade
the protections of the Act by adopting one of Registrant’s entire marks, CENTRIC,
and adding merely descriptive matter thereto. Double Coin Holdings Ltd. v. Tru Dev.,
2019 USPQ2d 377409, * 7 (TTAB 2019). Even a weak, suggestive mark is entitled to
protection against registration of a similar mark on legally identical goods. See King

30 July 31, 2019 Response to Office Action at 83.
Serial No. 88169404
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Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA
1974); In re FabFitFun, 127 USPQ2d at 1676. The Examining Attorney appropriately
limited his refusal to Applicant’s Class 10 artificial implants, which encompass
Registrant’s spinal and orthopedic implant goods.31 The refusal as to the Class 10
goods is thus properly tailored to further the purposes of the Act, without enabling
Registrant to exclusively appropriate all “-CENTRIC” formative marks in the health
care field.
Applicant finally points out that the CENTRIC MEDICAL registration was
originally issued to a third party, which later assigned the registration to Registrant.
During the course of prosecution of that application, the examining attorney initially
refused registration of CENTRIC MEDICAL based on a likelihood of confusion with
Registrant’s CENTRIC mark. Registrant and that third party then entered into a
written consent agreement, declaring that confusion between the marks was
“extremely unlikely,” even though the goods (orthopedic and spinal implants) were
related and CENTRIC MEDICAL only added the disclaimed generic term
“MEDICAL.” And CENTRIC MEDICAL proceeded to registration, after which it was
assigned to Registrant. If those two marks could coexist for those goods, Applicant
argues, “Applicant’s OSTEOCENTRIC mark can coexist with Registrant’s CENTRIC
and CENTRIC MEDICAL marks.”32
We agree that CENTRIC and CENTRIC MEDICAL may be considered similar
marks, on similar goods, and that adding the disclaimed generic word MEDICAL

31 See Office Action Sept. 17, 2019 at 1-2.
32 Applicant’s brief, 7 TTABVUE 16-17; July 31, 2019 Response to Office Action at 38-75.
Serial No. 88169404
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would not ordinarily suffice to distinguish them. See In re Information Builders, 2020
USPQ2d 10444 at *7. The consent agreement declaring that confusion between the
marks was “extremely unlikely” is dubious, especially given that the same person
signed as President and CEO of both parties, and the mark was later assigned.33 The
Board is not bound by this prior examination decision, see In re Nett Designs Inc., 236
F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001), and the matter is now moot, as
the CENTRIC MEDICAL registration was assigned to Registrant.
We find Applicant’s mark similar to the cited registered marks, for legally
identical goods. For these reasons, the first DuPont factor weighs in favor of finding
a likelihood of confusion.
C. Purchasers’ Care and Sophistication

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.
Applicant argues that “The only consumers of Applicant’s and Registrant’s
implants would be medical professionals, not the general public. Medical
professionals are very sophisticated and knowledgeable and would exercise a great
deal of care in making purchasing decisions,” citing In re N.A.D. Inc., 754 F.2d 996,
224 USPQ 969, 971 (Fed. Cir. 1985).34 That decision, however, was predicated not
only on the sophistication and care of medical professionals, but on a consent

33 Consent agreement, July 31, 2019 Response to Office Action at 74-75.
34 Applicant’s brief, 7 TTABVUE 25.

Serial No. 88169404
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agreement between the applicant, who applied to register NARKOMED for
“anesthesia machines for use in surgery,” and the registrant of the cited marks,
NARCO MEDICAL SERVICES for leasing of hospital and surgical equipment and
NARCO and design for a long list of specialized medical equipment, including
“apparatus for administration of anesthesia.” Id. at 969. The Court of Appeals for the
Federal Circuit accorded great weight to the consent agreement, observing that “each
likelihood-of-confusion trademark case must be determined on its own facts.” Id. at
970-71.
Based on the facts of this case, where there is no consent agreement, we note that
“purchaser sophistication does not always result in a finding that confusion is
unlikely, especially where legally identical in part goods … are involved and … the
marks are similar.” In re Information Builders Inc., 2020 USPQ2d 10444, at *4 (citing
Weiss Assocs. v. HRL Assocs., 902 F.2d 1546, 14 USPQ2d 1840, 1841-42 (Fed. Cir.
1990) (similarities of goods and marks outweighed sophisticated purchasers, careful
purchasing decision, and expensive goods)). In this case, the legal identity of the
artificial implant goods and the similarity of marks outweigh any sophisticated
purchasing decision. See In re Integrated Embedded, 120 USPQ2d 1504, 1516 (TTAB
2016).
As the Examining Attorney states, “being knowledgeable and/or sophisticated in
a particular field does not necessarily endow one with knowledge and sophistication
in connection with the use of trademarks.” In re Decombe, 9 USPQ2d 1812, 1814-15
(TTAB 1988) (citing In re Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983)).
Nor does it render one immune from source confusion. See Stone Lion Capital v. Lion
Serial No. 88169404
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Capital, 110 USPQ2d at 1163-64; Top Tobacco LP v. N. Atl. Operating Co., 101
USPQ2d 1163, 1170 (TTAB 2011); In re Cynosure, Inc., 90 USPQ2d 1644 (TTAB
2009).
Even if medical professionals are sophisticated, they could still infer from
Applicant’s and Registrant’s CENTRIC-formative marks that the respective goods
emanate from the same source, or from affiliated sources. See National Novice Hockey
League, 222 USPQ 638, 641 n.7 (TTAB 1984) (“the statutory concept of ‘likelihood of
confusion’ denotes any type of confusion, including not only source confusion but also
‘confusion of affiliation; confusion of connection; or confusion of sponsorship.’”). Given
the similarity of the marks and the legally identical goods, “careful purchasers who
do notice the difference in the marks will not necessarily conclude that there are
different sources for the goods, but will see the marks as variations of each other,
pointing to a single source.” In re Hitachi High-Technologies Corp., 109 USPQ2d
1769, 1774 (TTAB 2014).
Consequently, even though the sophistication and care of the relevant purchasers
might mitigate the likelihood of confusion somewhat, that factor is outweighed by the
other factors.
II. Conclusion

On consideration of all the evidence and arguments, we find that Applicant’s and
Registrant’s marks are similar, that the identified goods are legally identical and
otherwise related, and that purchaser sophistication and care will not allay the
likelihood of confusion.
Serial No. 88169404
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Decision: The refusal to register Applicant’s standard character mark,
OSTEOCENTRIC, in Class 10 is affirmed under Section 2(d). 15 U.S.C. § 1052(d).