Solstice Corporationv.Cypris Medical, Inc.

Trademark Trial and Appeal Board

May 6, 2020

91242553 (T.T.A.B. May. 6, 2020)

Mailed: May 6, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Solstice Corporation
v.
Cypris Medical, Inc.
_____

Opposition No. 91242553
_____

Jeffrey C. Joyce of Eaton Peabody PA
for Solstice Corporation.

Jessica A. Ekhoff of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP
for Cypris Medical, Inc.
_____

Before Wellington, Kuczma, and Coggins, Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Cypris Medical, Inc. (“Applicant”) filed an application to register the standard
character mark Xact on the Principal Register for “Medical suturing device and parts
and fittings therefor” in International Class 10.1

1 Application Serial No. 87624372, filed September 27, 2017, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intent to use
the mark in commerce.
This Opinion Is Not a
Precedent of the TTAB
Opposition No. 91242553

- 2 -

Solstice Corporation (“Opposer”) filed a Notice of Opposition against the
registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), based on its registration for the typed mark XACT for “radiopaque
markers for use in X-ray photography” in International Class 9.2
Applicant, in its Answer, admits that the marks are identical,3 but denies the
other salient allegations in the Notice of Opposition.
The parties have briefed the proceeding, including a reply brief filed by Opposer.
I. The Record
The record includes the pleadings, and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), the file of the subject application. The record also includes:
Opposer’s testimony and evidence:
1. Testimony declaration and rebuttal testimony declaration, with exhibits, of
Danforth Desena, Opposer’s president.4

2. Notice of Reliance on Applicant’s admission authenticating Applicant’s
documents produced in response to discovery; Applicant’s responses to
Opposer’s first requests for production (Nos. 1-22); and Applicant’s
admission response to Opposer’s request No. 19.5

3. Notice of Reliance on “printed publications.”6

4. Notice of Reliance on “official records,” including a USPTO electronic
database (TSDR) printout for Opposer’s pleaded registration.7

2 Registration No. 2124251 issued on December 23, 1997, and has been twice renewed.
3 5 TTABVUE 3 (¶ 12 of Answer). A “typed” mark is the equivalent of a standard character
mark. See Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a).
4 9 TTABVUE and 15 TTABVUE (rebuttal testimony declaration).
5 7 TTABVUE and 8 TTABVUE (“Confidential” copy).
6 10 TTABVUE.
7 11 TTABVUE.
Opposition No. 91242553

- 3 -

Applicant’s testimony and evidence:
1. Trial declaration, with exhibits, of Daniel Holton, Applicant’s co-founder,
president and CEO.8

2. Notice of Reliance on copies of third-party registrations for marks
containing the terms (E)XACT; printouts from websites to “show . . . there
is a crowded field of registrations for XACT marks for goods in the medical
industry . . . meaning Solstice’s rights in the XACT mark are weak”; copies
of Opposer’s answers to Applicant’s interrogatory Nos. 1, 2, 11, 25-26, 28,
and 30-31; copies of documents produced by Opposer in response to
Applicant’s production requests and authenticated by Opposer in response
to an admission request; and Opposer’s responses to Applicant’s admission
requests Nos. 1-2, 4, 8-10, and 14-15.9

II. Standing and Priority
Standing is a threshold issue in every inter partes case. See Empresa Cubana Del
Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014).
To establish standing in an opposition or cancellation proceeding, the plaintiff must
prove that it has a “real interest” in the proceeding and a “reasonable” basis for its
belief of damage. See Empresa Cubana, 111 USPQ2d at 1062; Ritchie v. Simpson, 170
F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (TTAB 1982).
Opposer’s pleaded registration, which has been properly made of record,10
establishes its standing. See Empresa Cubana, 111 USPQ2d at 1062; Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). Moreover,
because the registration is valid and unchallenged, priority of use is not an issue with

8 12 TTABVUE.
9 13 TTABVUE and 14 TTABVUE (“Confidential” copy).
10 11 TTABVUE 5-9.
Opposition No. 91242553

- 4 -

respect to the mark and goods identified in the registration vis-à-vis the involved
application. King Candy Co. v. Eunice King’s Kitchen, 496 F.2d 1400, 182 USPQ 108,
110 (CCPA 1974).
III. Likelihood of Confusion
Our determination under Trademark Act Section 2(d) is based on an analysis of
all of the probative facts in evidence that are relevant to the factors bearing on the
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”); see also In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340,
71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 64 USPQ2d
1375, 1380 (Fed. Cir. 2002)).
Opposition No. 91242553

- 5 -

A. Identity of Marks
The first DuPont factor requires consideration of “[t]he similarity or dissimilarity
of the marks in their entireties as to appearance, sound, connotation and commercial
impression.” DuPont, 177 USPQ at 567.
The involved marks are identical and, as noted supra, Applicant admitted this in
its Answer. Applicant, in its brief, further acknowledges that the marks are “visually
and phonetically the same.”11 The mix of upper and lowercase letters in Applicant’s
mark makes no difference because Applicant seeks to register it in standard character
format and, as such, it is not limited to any particular font style. See Trademark Rule
2.52(a) (setting forth requirements for standard character mark); see also In re
Calphalon Corp., 122 USPQ2d 1153, 1158-61 (TTAB 2017) (applicant’s amendment
of mark from SHARPIN to “SharpIn” did not transform mark from standard
character to special form).
Applicant argues, however, that the term XACT will impart different connotations
when viewed in the context of the parties’ respective goods. Specifically, Applicant
asserts that its use of XACT is “suggestive of a plastic surgeon’s ability to place a
suture in the ‘exact’ location desired, and also, of the way in which the vectors from
the pull created by the XACT Suturing Device form an ‘X’ on the patient’s skin.”12
Applicant argues that Opposer’s use of XACT, on the other hand, “does not suggest
the way in which a patient’s skin is stretched during the product’s use.”13

11 17 TTABVUE 34.
12 Id., citing to the Holton Dec. ¶ 20 (12 TTABVUE 6).
13 Id. at 35.
Opposition No. 91242553

- 6 -

The term XACT, itself, will likely be understood as an intentional misspelling of
the word “exact.” The record further shows that both parties use the term XACT to
help convey a precision quality of the respective goods. That is, Applicant touts its
“New Technology – XACT Device . . . allows surgeons to secure tissue in a precise
and minimally invasive manner.”14 (Bold in original). Opposer’s goods, radiopaque
markers for use in X-ray photography, are placed on and used specifically for
identifying various parts of the human body.15 Opposer’s use of XACT on these goods
is likely to be interpreted as suggests an ability to identify a precise or “exact” location
on the body. Based on the nature and purpose of both parties’ goods, the term has
the same possible suggestive meaning, namely, conveying that the respective goods
involve precision.
Because the marks are identical in appearance and sound, and share the same
connotation, this DuPont factor weighs heavily in favor of a finding of likelihood of
confusion.
B. Alleged Commercial Weakness of the Term XACT
Applicant argues that Opposer’s mark is “weak and entitled to limited protection
because the record includes 26 third-party XACT and EXACT-formative marks in the
medical industry, including six registrations covering goods that are used in medical
imaging.”16 In support, Applicant references evidence it submitted comprising “25
third-party registrations and one common law use of XACT and EXACT-formative

14 12 TTABVUE 18.
15 See, e.g., 13 TTABVUE 200-201 (advertisement for Opposer’s goods).
16 Id. at 24.
Opposition No. 91242553

- 7 -

marks in the medical industry . . ., including six third-party registrations covering
goods for use in medical imaging, which are much more closely related to Opposer’s
goods than [Applicant’s goods].”17 Applicant, in support of the weakness argument,
cites, inter alia, the Federal Circuit decision Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1373 (Fed. Cir.
2015) and J. THOMAS MCCARTHY, 2 MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:85 (5th ed.).
As to the third-party registrations, Applicant specifically points to the following
ones in its brief:18
Reg. No. Mark Goods/ Services

3372521 XACT Medical devices, namely, stents

3159792 XACT Intraocular lenses for surgical implantation into the eye, and
injectors for inserting intraocular lenses into the eye

5778380 XACT
LABORATORIES
(LABORATORIES
disclaimed)
Diagnostic laboratory services in the field of precision
medicine, excluding diagnostic and screening tests and
laboratory services for disease or predisease detection,
monitoring or surveillance

4673494 XACTMATCH Medical imaging apparatus and instruments for use in
generating a 3D image of at least a portion of a subject

5516461 EXACT
IMAGING
(IMAGING
disclaimed)
Medical ultrasound and biopsy apparatus; ultrasound
scanners, ultrasound imaging devices, ultrasound machines,
ultrasound transducers, ultrasound probes, ultrasound
transducer accessories, ultrasound probe accessories,
ultrasound consoles, ultrasound biopsy apparatus, all for
medical use

17 Id.
18 17 TTABVUE 25-29 (copies made of record at 13 TTABVUE). Although we only list the
third-party registrations that Applicant identifies in its brief, we have considered all that
were made of record for their full probative value.
Opposition No. 91242553

- 8 -

Reg. No. Mark Goods/ Services

5516460 EXACTVU [Same owner and goods as the above-listed registration.]

2892318 EXACT Medical apparatus for patient positioning in connection with
radiotherapy treatment, patient imaging and diagnosis using
scanning devices, and treatment simulation; medical
apparatuses for maintaining patient positioning between or
among treatment, imaging, diagnostic and simulation systems

3369756 CONEXACT X-ray computed tomography apparatus for medical use

5624828 EXACTRAC Image presenting instruments and apparatus for medical and
surgical purposes and for image guided patient positioning
and monitoring; intra-operative image guided localization
instruments and apparatus

The record also includes evidence of a single third-party common law use,
consisting of directions for use and ordering forms for a “MAGNA-FINDER® Xact”
needle infusion set that is described as an “external locating device contain[ing] rare-
earth, permanent magnets for an accurate injection system.”19
A determination regarding the weakness of Opposer’s mark, XACT, essentially
involves an analysis that relates to the scope of protection to which this mark is
entitled. We consider both conceptual weakness or strength, based on the intrinsic
nature of the mark itself, as well as any commercial strength or weakness in the
mark. In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir.
2010) (“A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).”). We make

19 13 TTABVUE 128-173.
Opposition No. 91242553

- 9 -

these findings under the fifth DuPont factor involving the “fame” or strength of the
prior mark, and under the sixth DuPont factor involving the number and nature of
similar marks in use for similar goods or services. DuPont, 177 USPQ at 567.
The third-party registered marks that include the terms (E)XACT for various
medical devices and services, including those that specifically are in the medical
imaging field, help corroborate the previously-discussed suggestive nature of the
term. That is, the registrations indicate how this term can be suggestive of a precision
quality in the field of medical goods and services. Jack Wolfskin, 116 USPQ2d 1135-
36; Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674
(Fed. Cir. 2015). Several of the registrations, either by the additional term in the
mark or the nature of the goods and services, make clear that the terms (E)XACT will
evoke such a meaning, e.g., XACTMATCH, EXACTVU, and XACT LABORATORIES
for services “in the field of precision medicine.” The term is therefore conceptually
less distinctive than an otherwise wholly arbitrary term in the context of Opposer’s
goods.
We do not, however, find the mark is commercially weak because there is no
evidence showing excessive third-party use of the terms (E)XACT. Rather, the record
reflects only one other entity actually uses the term XACT in commerce in connection
with medical goods. There is no evidence showing any of the third-party registered
marks are actually in use in commerce or that the public is even familiar with those
marks. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993) (third-
party registrations are not evidence that the marks shown are in commercial use, or
Opposition No. 91242553

- 10 -

that the public is familiar with them). As Professor McCarthy points out, “merely
introducing a list of third party uses alone is not particularly informative or
persuasive as to the probable impact of such uses.” MCCARTHY § 11:88.
In sum, the term XACT is suggestive of a quality of medical goods that involve
precise or “exact” positioning, including Applicant’s and Opposer’s identified goods.
This reduces the distinctiveness of the marks which, in turn, reduces the scope of
protection accorded to Opposer’s mark. On the other hand, there is no evidence of
excessive third-party use of this term or that it is commercially weak.
C. Relatedness of the Goods and Trade Channels
We now address the DuPont factors involving the similarity or dissimilarity of the
involved goods, their trade channels and the classes of purchasers. As to the goods,
they need not be identical or even directly competitive for there to be a likelihood of
confusion, but the evidence must establish that the goods are related in some manner,
or the conditions surrounding their marketing are such, that they could be
encountered by the same purchasers under circumstances that could give rise to the
mistaken belief that the goods come from a common source. Hewlett-Packard Co. v.
Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003-04 (Fed. Cir. 2002).
It is also well settled that when making our determinations with respect to the
goods, their trade channels, and classes of purchasers, we must look to the goods as
they are identified in the application and Opposer’s registration. See Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157,
1161 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d
Opposition No. 91242553

- 11 -

937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). We do not read limitations into the
identification of goods. Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940
(Fed. Cir. 1983) (“There is no specific limitation and nothing in the inherent nature
of Squirtco’s mark or goods that restricts the usage of SQUIRT for balloons to
promotion of soft drinks. The Board, thus, improperly read limitations into the
registration”).
Many of Applicant’s arguments run contrary to the aforementioned principal that
we must give full consideration to the goods as they are described in the involved
application and registration. Specifically, Applicant argues there is no overlap of
trade channels and purchasers of the involved goods because Applicant “only sells its
XACT Suturing Device directly to aesthetic plastic surgeons and aesthetic facial
plastic surgeons and the surgery centers at which these surgeons operate.”20
Applicant also contends that there is no “overlap between the end-users” of the
involved goods and that “due to the sophistication and complexity of the procedures
performed using the XACT Suturing Device, Applicant intends to require surgeons to
undergo specialized training or perform a set number of procedures under the
supervision of a clinical specialist employed by Applicant before they can re-order the
device.”21
Applicant’s goods, however, are described in its application as simply “medical
suturing device[s] and parts and fittings therefor,” and the types of limitations

20 17 TTABVUE 17, citing Holton Dec. at 12 TTABVUE 5-6 (regarding “Sales and Marketing
of the XACT Suturing Device”).
21 Id. at 18.
Opposition No. 91242553

- 12 -

Applicant seeks to place on the manner in which and to whom these goods are sold
are not present in the identification of goods. We must assume that Applicant’s goods
will include all types of medical suturing devices and will be sold to the usual classes
of purchasers in all normal trade channels for these goods. Although Applicant
introduced evidence to support its assertions with respect to its own particular goods,
we cannot resort to extrinsic evidence of its and Opposer’s actual uses of their marks
to restrict or limit the scope of the identifications of goods. Again, we must “focus on
the application and registrations rather than on real-world conditions, because ‘the
question of registrability of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application.’” Stone Lion, 110 USPQ2d at 1162
(quoting Octocom Sys., Inc., 16 USPQ2d at 1787). “This is so ‘regardless of what the
record may reveal as to the particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales of the goods are directed.’”
Id. (quoting Octocom, 16 USPQ2d at 1787).
Opposer, on the other hand, has submitted evidence showing that medical
suturing devices may be purchased by the same medical facilities as radiopaque
markers for use in X-ray photography. Specifically, Opposer’s witness and President,
Danforth Desena, testified that the involved goods are “found in all forms of medical
facilities including medical clinics, hospitals, medical imaging centers, out-patient
facilities, surgical centers, medical and research laboratories, and private doctors’
offices.”22 Dasena further testified that these types of facilities frequently employ

22 9 TTABVUE 4, 6 (Desena Dec. ¶¶ 13 and 27).
Opposition No. 91242553

- 13 -

“medical purchasing or procurement specialists” who are “often business-trained
individuals who are often employed in a business area quite removed from the clinical
setting and generally have little to no communication with the clinicians.”23 These
purchasing or procurement specialists may purchase medical supplies through
medical supply distributors, including Cardinal Health, Henry Schein Medical, and
McKesson Medical-Surgical Inc.24 Printouts from the Henry Schein medical supply
distributor indeed show that it offers Opposer’s XACT-branded markers as well as a
particular “suturing device” and various suture-related products.25 McKesson
likewise offers various suture-related products, including several types of “suturing
devices,” and Opposer’s XACT-branded markers.26
Desena also testified that the “end-users of Opposer’s Goods also apply sutures
and use medical suturing devices. For example, it is common for masses or lesions to
be marked with radiopaque markers and then be operated on by medical
professionals who use the markings to identify the surgical targets and later close the
surgical site with sutures using some type of medical suturing device.”27 Materials in
the record help corroborate this testimony. In particular, Applicant’s own
promotional materials tout its XACT-branded goods as “allow[ing] surgeons to
simplify suturing” during “breast reconstruction surgery” and that its goods have

23 Id. at 4 (Desena Dec. ¶ 14).
24 Id. at 6 (Desena Dec. ¶¶ 29-30).
25 10 TTABVUE 19-21.
26 Id. at 24-26.
27 9 TTABVUE 6 (Desena Dec. ¶ 31).
Opposition No. 91242553

- 14 -

other “potential applications” that include additional plastic surgical procedures as
well as general surgery.28 Opposer markets its goods as mammography mole, nipple
and scar markers.29 This manner of marketing helps substantiate Desena’s testimony
that an end-user, such as a plastic surgeon, may use Opposer’s goods to mark a
surgical area and a suturing device to close the surgical site.
Ultimately, although the parties’ goods are neither competitive with one another
nor do they serve the same medical purpose, we find that they are related because
they may be marketed through the same trade channels to the same purchasers and
be used in connection with the same medical procedures. The record shows that a
procurement specialist in charge of ordering supplies for a medium or larger plastic
surgery practice would have the need to purchase both suturing devices and
mammography radiopaque markers and could encounter both types of goods from the
same medical supply distributor. These are circumstances that, when those goods are
sold under the same mark, could give rise to the procurement specialist mistakenly
believing that they come from the same source. Accordingly, the DuPont factors
involving the relatedness of the goods, their trade channels and classes of purchasers
favor a finding of confusion being likely.
D. Other Factors Argued – Fame of Opposer’s Mark and Actual Confusion
Applicant, in its brief, argues that Opposer failed to establish that its mark is
famous and that there is no evidence of actual confusion between the parties’ use of

28 11 TTABVUE 49.
29 9 TTABVUE 3-5 (Desena Dec. ¶¶ 8-9, 11, 19, 21); 10 TTABVUE 19.
Opposition No. 91242553

- 15 -

the same mark, XACT.30 Applicant argues that these factors favor a finding that
confusion is not likely.
Neither of these arguments help Applicant here show that confusion is not likely.
First, we note that Opposer did not argue in its brief that its mark was famous, and,
in any event, it is well settled that marks need not be famous in order to be entitled
to protection. See Cunningham, 55 USPQ2d 1847. Moreover, in our discussion supra
regarding weakness of the term XACT, we have already pointed out that the term is
suggestive of a quality of the goods and thus not as distinctive as an arbitrary term.
As to Applicant’s contention that there are no known instances of actual confusion
between the parties’ marks, there is insufficient evidence for us to gauge whether this
assertion, true or not, has any real significance. See Citigroup Inc. v. Capital City
Bank Grp., Inc., 94 USPQ2d 1645, 1660 (TTAB 2010), aff’d, 637 F.3d 1344, 98
USPQ2d 1253 (Fed. Cir. 2011) (the absence of any reported instances of confusion is
meaningful only if the record indicates appreciable and continuous use by Applicant
of its mark for a significant period in the same markets as those served by Opposer
under its marks); Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB
1992). In this case, the involved application is based on a bona fide intent to use the
mark in commerce and Applicant acknowledges that it only very recently began to
use its mark in commerce. That is, Applicant’s witness Daniel Holton testified that
Applicant made a presentation regarding its XACT-branded goods in 2018 and began

30 17 TTABVUE 32-36.
Opposition No. 91242553

- 16 -

selling its goods on June 4, 2019, during Opposer’s testimony period.31 Given these
facts, there has not been a significant opportunity for confusion to occur. Barbara’s
Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value
of the absence of actual confusion depends upon there being a significant opportunity
for actual confusion to have occurred); Red Carpet Corp. v. Johnstown Am. Enter. Inc.,
7 USPQ2d 1404, 1406-1407 (TTAB 1988); Cent. Soya Co., Inc. v. N. Am. Plant
Breeders, 212 USPQ 37, 48 (TTAB 1981) (“[T]he absence of actual confusion over a
reasonable period of time might well suggest that the likelihood of confusion is only
a remote possibility with little probability of occurring.”).
Accordingly, the DuPont factors involving the fame of Opposer’s mark and any
instances of actual confusion remain neutral in our likelihood of confusion analysis.
E. Conclusion
Because the marks are identical and the goods may be offered in the same trade
channels to the same types of purchasers, namely medical practice procurement
specialists, we find that Applicant’s use of the mark XACT for medical suturing
devices and parts therefor is likely to cause confusion with Opposer’s registered mark
XACT for radiopaque markers for use in x-ray photography. We make this conclusion
bearing in mind that the term XACT is suggestive of a quality of those goods and
Opposer’s scope of protection for its registered mark is not as expansive as that
provided to an arbitrary term. While there are instances where a single DuPont factor
is dispositive, that is not the case here, especially given the identity of marks, trade

31 12 TTABVUE 3, 5 (Holton Dec. ¶¶ 10 and 15).
Opposition No. 91242553

- 17 -

channels and classes of customers. See, e.g., HRL Assoc’s, Inc. v. Weiss Assoc’s, Inc.,
12 USPQ2d 1819, 1823 (TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed.
Cir. 1990) (similarities of goods and marks outweigh sophisticated purchasers,
careful purchasing decision, and expensive goods). In sum, we have weighed these
factors and find confusion is likely.
Decision: The opposition is sustained on the ground of likelihood of confusion.