Sage Products, LLC

Trademark Trial and Appeal Board

Jan 11, 2021

88361412 (T.T.A.B. Jan. 11, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: January 11, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
_____

In re Sage Products, LLC
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Serial No. 88361412
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Eugene J. Rath III of Flynn Thiel PC,
for Sage Products, LLC.
Benjamin Rosen, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Wellington, Lykos and Lynch,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Sage Products, LLC (“Applicant”), seeks registration on the Principal Register of
the standard character mark PRIMOFIT for “medical instruments, namely, non-
catheter-based urine collection devices for male patients; medical instruments,
namely, non-catheter-based external urine collection devices for incontinent patients”
in International Class 10.1

1 Application Serial No. 88361412 was filed on March 28, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intent
to use the mark in commerce.
Serial No. 88361412
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The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), because Applicant’s mark, when used on
the identified goods, so resembles the registered standard character mark LOFRIC
PRIMO for “urinary catheters” in International Class 10,2 as to be likely to cause
confusion, to cause mistake or to deceive. The Examining Attorney also refused
registration based on a requirement that Applicant amend to clarify its identification
of goods because it is indefinite and unacceptable, under Trademark Rule 2.32(a)(6),
37 C.F.R. § 2.32(a)(6).
After the refusal was made final, Applicant concurrently filed an appeal and a
request for reconsideration of the refusal. The Examining Attorney denied the
request for reconsideration and the appeal was resumed. The appeal has been briefed.
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). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”). In any likelihood of confusion analysis, two

2 Registration No. 3009017 issued on October 25, 2005, based on an international
registration, and has been renewed.
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key considerations are the similarities between the marks and the relatedness
between the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other factors
that are relevant or for which there is evidence of record. See In re Guild Mortg. Co.,
912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board considers each
DuPont factor for which there is evidence and argument).
A. Relatedness of Goods and Trade Channels
We first consider the DuPont factors involving the relatedness of the goods and
their channels of trade. We base this determination on the goods as they are identified
in the application and the cited registration. See Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting
Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990)); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
Applicant emphasizes that its urine collection devices are not catheter-based and
argues that this makes them “different” from Registrant’s urinary catheters.3
However, while the involved goods are not identical, Applicant’s goods perform the
same specific medical function as Registrant’s goods – that is, collecting urine from
incontinent persons. Indeed, a product brochure for Applicant’s goods acknowledges
as much by describing Applicant’s goods as “act[ing] as a transition from indwelling

3 4 TTABVUE 9.
Serial No. 88361412
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catheters to independent continence.”4 In other words, Applicant’s goods are designed
to be used as an interim step by incontinent patients with their transition from
urinary catheter devices to not having any assistance. Put differently, a patient
experiencing incontinence may require urinary catheters, like Registrant’s, and then
seek to use external, non-catheter urine collection devices, like Applicant’s, as the
patient progresses to independent continence.
The Examining Attorney also submitted Internet evidence showing eight different
instances of the same mark or trade name being used on or in connection with urinary
catheters as well as external, non-catheter urine collection devices.5 For example, the
Personally Delivered website offers Bard-branded urinary catheters and Bard-
branded external, non-catheter urinary collection devices and related products.6 This
type of evidence is probative because it demonstrates that the involved goods may
emanate from a common source under the same mark and consumers will encounter
these goods in the same trade channels. See e.g., In re Detroit Ath. Co., 903 F.3d 1297,
128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (crediting relatedness evidence that third
parties use the same mark for the goods and services at issue because “[t]his evidence
suggests that consumers are accustomed to seeing a single mark associated with a
source that sells both”); On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56
USPQ2d 1471, 1475 (Fed. Cir. 2000); In re Iolo Tech., LLC, 95 USPQ2d 1498, 1500-

4 Product brochure for a product that Applicant refers to as a “sister product,” attached to
December 5, 2019 Response, TSDR p. 10.
5 Attached to December 30, 2019 Office Action, TSDR pp. 2-19.
6 Id., pp. 3-4, 7.
Serial No. 88361412
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01 (TTAB 2010) (“The examining attorney also submitted evidence from several
websites to show that various types of optimization software such as identified by
applicant and technical support services such as identified by the cited registration
are advertised to consumers under the same mark.”); In re G.B.I. Tile and Stone, Inc.,
92 USPQ2d 1366, 1371 (TTAB 2009) (holding the goods, while different and not
interchangeable, are related because the evidence, including Internet excerpts
showing third parties using the same marks for both sets of products, clearly
demonstrates that there are entities that are the source of both sets of products).
In sum, we find the goods are very closely related because they perform the same
specific medical function, namely, assisting incontinent persons with evacuating
urine. Additionally, the Internet evidence shows that a single source may offer goods
like identified in the application and cited registration bearing the same mark and to
the same class of consumers in the same trade channels. Accordingly, these DuPont
factors strongly favor a finding of likelihood of confusion.
B. Comparison of the Marks
We now consider the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. Stone Lion, 110
USPQ2d at 1160; DuPont, 177 USPQ at 567. The issue is not whether the marks can
be distinguished when subjected to a side-by-side comparison, but rather whether the
marks are sufficiently similar in terms of their overall commercial impression that
confusion as to the source of the goods offered under the respective marks is likely to
result. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
Serial No. 88361412
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1713, 1721 (Fed. Cir. 2012). The focus is on the recollection of the average purchaser,
who normally retains a general rather than specific impression of trademarks. 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); Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). We do not predicate our analysis
on a dissection of the involved marks; we consider the marks in their entireties. Stone
Lion, 110 USPQ2d at 1160; Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005,
212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected
and considered piecemeal; rather, it must be considered as a whole in determining
likelihood of confusion.”).
We are also mindful that when the involved goods are very closely related, as is
the case here, and offered to the same purchasers in the same trade channels, the
degree of similarity between the marks necessary to find likelihood of confusion need
not be as great as where there is less of a relationship between the goods. Coach
Servs., Inc., 101 USPQ2d at 1721; Century 21 Real Estate Corp. v. Century Life of
Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Jansen Enters. Inc. v.
Rind, 85 USPQ2d 1104, 1108 (TTAB 2007).
Applicant argues that “there are significant differences in the respective marks,”
PRIMOFIT and LOFRIC PRIMO, including a “different meaning.”7 Specifically,
Applicant “believe[s] that ‘lofric’ is a coined term (although potentially derived from
‘low friction’) and is therefore a strong portion of the cited mark, with which

7 4 TTABVUE 8.
Serial No. 88361412
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consumers will relate more than the ‘primo’ portion of the mark.”8 Applicant also
argues that the term PRIMO “is not strong,” and points to 8 other registrations for
marks containing the term PRIMO that were originally cited by the Examining
Attorney as bases for refusing registration.9
The Examining Attorney, on the other hand, argues that “each mark contains the
identical wording ‘PRIMO’, and as a result, the average purchaser will generally
associate each mark with this term ‘PRIMO’ . . . because [the term] is arbitrary as
related to the urine collection apparatus offered by applicant and registrant, with
applicant providing no evidence to the contrary.”10 The Examining Attorney goes on
to assert that Applicant merely “removed the house mark, LOFRIC, leaving a high
likelihood of confusion due to the very high similarity between PRIMO and
PRIMOFIT.”11 With respect to Applicant’s reference to the other registrations with
the term PRIMO, the Examining Attorney states that these “were initially cited only
due to applicant’s very broad original identification of ‘medical and surgical
apparatus and instruments’ and . . . the registrations identify goods unrelated to the
narrow urinary catheters and urine collection devices that are the subject of this
action.”12 Thus, he argues that “[t]hese third-party registrations submitted are

8 Id.
9 Id. at 9; copies of the 8 additional cited registrations were attached to June 9, 2019 Office
Action, TSDR pp. 4-25.
10 6 TTABVUE 7.
11 Id. at 8.
12 Id.
Serial No. 88361412
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insufficient to establish that the wording ‘PRIMO’ is weak or diluted in the relevant
field at issue in this appeal.”13
Here, we find the marks, PRIMOFIT and LOFRIC PRIMO, are overall more
similar than dissimilar based on the common element PRIMO. With respect to
Applicant’s mark, PRIMO appears first and is thus more likely to make a stronger
impression on consumers viewing the mark. See Presto Prods. Inc. v. Nice-Pak Prods.
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”). The
secondary term, FIT, is highly suggestive term in the context of urine collection
devices that are attached to the body. Applicant, in a product brochure for its goods,
touts the “fit, securement, and performance.”14
As to Registrant’s mark, LOFRIC PRIMO, although the PRIMO element of does
not appear first, it is a separable and easily identifiable element of the mark.
Moreover, as Applicant itself suggests, consumers may understand the initial term
LOFRIC as suggestive of a “low friction” quality of Registrant’s catheters, and thus
making it less distinctive than an otherwise arbitrary or coined term.
With respect to the Examining Attorney’s contention that LOFRIC is a house
mark, we agree with Applicant that “there is no evidence in the record to indicate
that LOFRIC is used as a house mark by the Registrant.”15 Although Applicant

13 Id. at 9.
14 Product brochure, attached to December 5, 2019 Response, TSDR p. 10; emphasis added.
15 7 TTABVUE 5.
Serial No. 88361412
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submitted copies of four additional registrations owned by Registrant for the
following marks: LOFRIC, LOFRIC DILA-CATH, LOFRIC SENSE, and LOFRIC
ORIGO, all for goods that include catheters,16 and argued that Registrant owns a
“family of marks,”17 the mere existence of these registrations for catheters, by itself,
does not demonstrate a “family,” nor are they evidence of how Registrant actually
uses any of its marks. See New Era Cap Co. v. Pro Era LLC, 2020 USPQ2d 10596, *7
(TTAB 2020) (Ownership of numerous registrations containing the putative family
term is not “sufficient in and of itself to establish that a party owns a family of
marks.”). Rather, the registrations suggest that Registrant has sought to adopt
several marks containing the term LOFRIC, a term that Applicant proposes may be
understood as an abbreviation for “low friction.” We must consider the likelihood that
consumers already familiar with Registrant’s LOFRIC PRIMO mark on urinary
catheters may, upon encountering Applicant’s use of the PRIMOFIT mark on such
closely related urine collection devices, that all latter goods derive from the same
source as the former, albeit without the “low friction” feature and are “fitted.”
In making our determination that the marks are overall more similar than not,
we keep in mind that the common term PRIMO may be viewed as suggestive of a
better quality of the goods. On the other hand, the evidence does not show this term
has any particular meaning in the context of the involved goods. Moreover, there is
no evidence of third-party use of the term PRIMO in marks in connection with urinary

16 Copies of registrations attached to December 5, 2019 Response, TSDR pp. 2-9.
17 Id. at p. 1.
Serial No. 88361412
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catheters or urine collection devices, and we must therefore assume Applicant and
Registrant are the only ones seeking to do so.
Third-party registrations alone may be relevant, in the manner of dictionary
definitions, “to prove that some segment of the [marks] has a normally understood
and well recognized descriptive or suggestive meaning, leading to the conclusion that
that segment is relatively weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d
1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (internal quotation marks omitted).
However, the goods covered by the third-party registrations that Applicant relies
upon are for dental and orthodontic devices or other unrelated medical devices, e.g.,
subcutaneous vascular access ports, ankle braces, thermometers, cups for feeding
babies, etc. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315,
128 USPQ2d 1686 (Fed. Cir. 2018) (error to rely on third-party evidence of similar
marks for dissimilar goods, as Board must focus “on goods shown to be similar”); In
re i.am.symbolic, llc, 123 USPQ2d at 1751 (disregarding third-party registrations for
goods in other classes where the proffering party “has neither introduced evidence,
nor provided adequate explanation to support a determination that the existence of I
AM marks for goods in other classes, … support a finding that registrants’ marks are
weak with respect to the goods identified in their registrations”). Put simply, the
registrations do not evidence weakness of the term PRIMO in connection with
catheters and urine collections devices.
Serial No. 88361412
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In sum, we find the similarity of the marks, based on the shared term PRIMO,
outweighs their differences. Accordingly, the factor of the similarity of the marks also
favors a finding of likelihood of confusion.
C. Alleged Sophistication of Consumers
Applicant argues in its brief that the involved goods are “for sophisticated
purchasers” and are “typically purchased by a hospital or medical clinic purchasing
agent who is very familiar with differences in products and brand names.”18 Applicant
did not submit any evidence to support this contention and, as we often need to point
out, “attorney argument is no substitute for evidence.” Cai v. Diamond Hong, Inc.,
901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc.
v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)). While the involved goods are
clearly for medical purposes, we cannot presume, as Applicant would have us do, that
they are purchased exclusively by hospital or medical clinic purchasing agents. When
considering this factor, we are bound by the identifications of goods in the application
and the cited registration, which are not limited to sophisticated purchasers. See In
re Guild Mortg. Co., 2020 USPQ2d 10279 (TTAB 2020); see also Stone Lion, 110
USPQ2d at 1163-64 (recognizing Board precedent requiring consideration of the
“least sophisticated consumer in the class”). Even if we were to find that those
purchasing the involved goods are medical goods procurement specialists, this does
not mean they are immune from confusion given the identical medical function of the

18 4 TTABVUE 9.
Serial No. 88361412
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goods being sold under similar marks. See Weiss Assocs., Inc. v. HRL Assocs., Inc.,
902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (even sophisticated purchasers of
expensive imaging equipment may be confused by similar marks). And, unlike the
expensive medical equipment in Weiss Assocs., the record shows that the involved
goods in this appeal are relatively inexpensive (e.g., catheters for under $2 apiece,
and external urine drainage collection devices for under $7 apiece).19 “When products
are relatively low-priced and subject to impulse buying, the risk of likelihood of
confusion is increased because purchasers of such products are held to a lesser
standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d
1894, 1899 (Fed. Cir. 2000) (citations omitted). Thus, while we may presume that
hospital and medical clinic purchasing agents are not prone to impulse purchases,
the price points for the involved goods are such that we cannot presume the
purchasing agents’ decisions entail significant deliberation and research. The
purchasing agent encountering PRIMOFIT non-catheter urine collection devices may
mistakenly believe these goods are related to the LOFRIC PRIMO urinary catheters,
given the shared term PRIMO and the very close relationship of the goods that can
be used patients experiencing incontinence.
With the above in mind, we find on balance this factor to be neutral in our
analysis.

19 Prices for third-party urinary catheters and non-catheter urinary collection devices
provided in Internet evidence attached to December 30, 2019 Office Action, TSDR pp. 2-19.
Serial No. 88361412
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D. Likelihood of Confusion Conclusion
In conclusion, because Applicant’s urinary collection devices and Registrant’s
urinary catheters are so closely related, given their identical purpose, and these goods
are offered in the same trade channels and to the same classes of purchasers, we
conclude that Applicant’s use of the mark PRIMOFIT on its goods is likely to cause
confusion with Registrant’s use of the mark LOFRIC PRIMO on its goods.
II. Identification of Goods Requirement Reversed
We find Applicant’s identification of goods, namely, “medical instruments,
namely, non-catheter-based urine collection devices for male patients; medical
instruments, namely, non-catheter-based external urine collection devices for
incontinent patients,” to be sufficiently clear, definite, and acceptable for purposes of
Trademark Rule 2.32(a)(6), 37 C.F.R. §2.32(a)(6); see also TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) 1402.01 (October 2018). The Examining Attorney
has neither demonstrated that this language does not use common commercial
terminology for the goods, nor supported with evidence or a sufficiently detailed
explanation how the identification improperly encompasses “a whole range of goods,
often occupying different functions.”20 Accordingly, the Examining Attorney’s refusal
based on the identification of goods being indefinite is reversed.

20 6 TTABVUE 6. See also December 30, 2019, Office Action, TSDR pp. 2-20 (evidence of
medical urine collection devices).
Serial No. 88361412
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Decision: The refusal based on the identification of goods requirement is
reversed. However, the refusal to register Applicant’s mark under Section 2(d) is
affirmed.