Vertelink Corporation

Trademark Trial and Appeal Board

Dec 12, 2006

No. 78304641 (T.T.A.B. Dec. 12, 2006)

Mailed: December 12, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Vertelink Corporation
________

Serial No. 78304641
_______

Steven J. Nataupsky of Knobbe, Martens, Olson & Bear, LLP
for Vertelink Corporation.

David Collier, Trademark Examining Attorney, Law Office 104
(Chris Doninger, Managing Attorney).
_______

Before Holtzman, Drost, and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

An application has been filed by Vertelink Corporation
to register the mark VECTOR ACCESS TECHNOLOGY for “medical
devices, namely, portable alignment devices that hook onto
screws implanted into spines for subcutaneously positioning
guidewires through bone anchors, hooks, guidewires, screws,
anchors, implants, and surgical instruments.”1

1 Application Serial No. 78304641, filed on September 24, 2003,
based on a bona fide intention to use the mark in commerce.

THIS OPINION IS NOT CITABLE
AS PRECEDENT OF
THE T.T.A.B.
Serial No. 78304641
2
The Trademark Examining Attorney refused registration
under Section 2(d) of the Lanham Act, 15 U.S.C. §1052(d).2
The Examining Attorney contends that applicant’s mark, if
applied to applicant’s goods, so closely resembles the
previously registered mark VECTOR for “orthopedic implants
and prosthesis; namely, a fracture fixation device” as to
be likely to cause confusion.3
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs.
We affirm.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant. In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of
confusion analysis, two key considerations are the
similarities or dissimilarities between the marks and the
similarities or dissimilarities between the goods.

2 During the prosecution of the application, the Examining
Attorney required applicant to disclaim the exclusive right to
use “Access Technology.” The Examining Attorney argued that the
term “Access Technology” is merely descriptive when used in
connection with applicant’s products. Applicant disclaimed the
exclusive right to use “Access Technology” in its appellate
brief.

3 Registration No. 2,611,339, issued on August 27, 2002.

Serial No. 78304641
3
1. Registrant’s Identification Of Goods Encompass
Products Listed In Applicant’s Identification Of
Goods.

We turn first to a consideration of the similarity or
dissimilarity of the goods. Applicant’s goods are
“medical devices, namely, portable alignment
devices that hook onto screws implanted into
spines for subcutaneously positioning guidewires
through bone anchors, hooks, guidewires, screws,
anchors, implants, and surgical instruments.”

Registrant’s goods are

“orthopedic implants and prosthesis; namely, a
fracture fixation device.”

At the outset, we note that the evidentiary record in
this case is surprisingly sparse for an application and
registration involving complex surgical products. Neither
the Examining Attorney nor the applicant provided an
evidentiary record explaining the exact nature of
applicant’s products and/or registrant’s products or
describing the marketing environment. For example, there
is no evidence regarding to whom or how the products are
(or would be) sold and the distinction between orthopedic
surgery and spinal surgery. In other words, the briefs
were long on argument and short on facts. Accordingly, our
analysis rests upon the following facts that we were able
to glean from the record:
Serial No. 78304641
4
1. A Website discussing spinal surgery attached to
the Trademark Office Action dated August 1, 2005
from Health Industry Today, July, 1999:

Fusion cages adding backbone to spinal
fixation device sales

In the spinal fixation segment of the
orthopedic implant market – a section
of the industry that is high growth,
high potential, and poised for another
round of explosive expansion. . . In
fact, the overall market for orthopedic
fixation devices – spinal fixation,
external fixation, and internal
fixation devices, basically pieces of
equipment used to stabilize and fixate
fractured bones and soft tissue – is
poised for growth. . . In 1998, 31
companies fought for market share in
the fixation devices arena, a roster
that includes all the large, general
orthopedic companies with comprehensive
product lines, and a number of smaller
firms focused on individual facets of
the market, primarily spinal fixation
and fusion cage applications. Among
them, the orthopedic fixation devices
market generated $1.02 billion in
revenues in 1990. . .In fact, in
testimony before the FDA’s Orthopedic
and Rehabilitation Devices Advisory
Panel, Dr. Hansen Yuan of the State
University of New York – Syracuse
reported a 98.1% fusion success rate
for anterior procedures involving two
vertebrae. . . (Emphasis added).

2. News articles from a LexisNexis search (emphasis
added):

a. The Business Times Singapore, February 4, 2006
– Go the minimally invasive way:

“’The surgical work on the spine is still
the same, but now we can have less
collateral damage on the way to the spine,’
Serial No. 78304641
5
says Dr. Yue Wai Mun, spine service
consultant from the department of
orthopaedic surgery.”

b. Seattle Times, January 19, 2006 - $35 million
raised, key partnership of Archus:

“Dr. Jens Chapman, professor of orthopedic
surgery at the University of Washington and
a spine surgeon at Harborview Medical
Center, described a spinal motion segment as
a tripod, with the disc and the facets
forming legs.”

c. The Washington Post, December 3, 2005 – The Boy
Wonder Works With Grown-Up Grit:

“Dr. Laurel Blakemore, chief of orthopedic
surgery at Children’s Hospital, inserted two
titanium rods into Chris’s back. Roughly
11/2 (sic) feet long and running from the
base of Chris’s neck to his pelvis, the rods
are hitched to his spine by more than 20
screws.”

d. The New York Times, November 18, 2005 – an
obituary. The deceased was “Certified by the
American Board of Orthopaedic Surgery and
American Board of Spine Surgeons.”

e. Charlotte Observer, July 24, 2005 – Groups
Merge Into OrthoCarolina:

“Dr. Alden Milam specializes in spine
surgery. . . He served a fellowship with
Case Western Reserve University Department
of Orthopedic Surgery, Spine Surgery.”

f. Dallas Morning News, January 7, 2005 –
Congratulations:

“Dr. Timon will specialize in orthopedic
surgery with an emphasis in spine surgery.”

g. The Washington Post, December 18, 2004 – Dr.
Peter T. Singleton Jr.:

Serial No. 78304641
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“Dr. Peter T. Singleton, Jr. . . was an
associate professor of orthopedic surgery at
the Stanford International Spine Center.”

We start with the well-settled proposition that it is
not necessary that the goods of the parties be similar or
even competitive to support a finding of likelihood of
confusion. Likelihood of confusion may be found if the
goods are related in some manner and/or if the
circumstances surrounding their marketing are such that
they would be likely to be encountered by the same persons
under conditions that could give rise to the mistaken
belief that they emanate from the same source. In re
Pollio Dairy Products Corporation, 8 USPQ2d 2012, 2015
(TTAB 1988); Seaguard Corporation v. Seaward International,
Inc., 223 USPQ 48, 51 (TTAB 1984).
It is also settled that the issue of likelihood of
confusion between applied-for and registered marks must be
determined on the basis of the goods or services as they
are identified in the involved application and cited
registration, rather than on what any evidence may show as
to the actual nature of the products, their channels of
trade and/or classes of purchasers. Canadian Imperial Bank
of Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813, 1815 (Fed. Cir. 1987); In re Elbaum, 211 USPQ 639
(TTAB 1981). We must, therefore, consider the registrant’s
Serial No. 78304641
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products as if they were being rendered in all of the
normal channels of trade to all of the normal purchasers
for such products. Canadian Imperial Bank of Commerce v.
Wells Fargo Bank, supra; Toys R Us, Inc. v. Lamps R Us, 219
USPQ 340, 343 (TTAB 1983).
In the present case, we find that the registrant’s
orthopedic fracture fixation device and registrant’s
medical devices used in spinal surgery are related because
there is a substantial overlap between orthopedic and
spinal surgery. Orthopedics is “the medical specialty
concerned with correction of deformities or functional
impairments of the skeletal system, esp. the extremities
and the spine, and associated structures, as muscles and
ligaments.” Dictionary.com based on the Random House
Unabridged Dictionary (2006).4
According to the evidence, spinal fixation is a
segment of the orthopedic implant market,5 many spinal
surgeons have trained in orthopedics,6 and the same
companies make both orthopedic products and spinal

4 The Board may take judicial notice of dictionary definitions.
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 (Fed.
Cir. 1983); In re Styleclick.com, 58 USPQ2d 1523, 1525 (TTAB
2001).

5 Health Industry Today website, July, 1999.

6 News articles from newspapers found through LexisNexis.
Serial No. 78304641
8
products.7 The subject of one news article was an
orthopedic surgeon who preformed back surgery:
Dr. Laurel Blakemore, chief of
orthopedic surgery at Children’s
Hospital, inserted two titanium rods
into Chris’s back. Roughly 11/2 (sic)
feet long and running from the base of
Chris’s neck to his pelvis, the rods
are hitched to his spine by more than
20 screws.8

Thus, spinal surgery is a subspecialty of orthopedics.
Absent any limitation in the cited registration as to
whether registrant’s fracture fixation device excludes a
subcutaneous spinal positioning device, we cannot infer
that such a limitation exists. In re Denisi, 225 USPQ 624,
626 (TTAB 1985). Registrant’s fracture fixation device, as
identified, is broad enough to encompass a subcutaneous
spinal positioning device.
Moreover, because large general orthopedic companies
make surgical equipment for spinal surgery9 and because
spinal surgeons have trained in orthopedics, the use of
similar marks in connection with a subcutaneous spinal
positioning device and a fracture fixation device may be
sold to the same surgeons under circumstances likely to

7 Health Industry Today website, July, 1999..

8 The Washington Post, December 3, 2005 (The Boy Wonder Works
With Grown-Up Grit).

9 Health Industry Today, July, 1999.
Serial No. 78304641
9
give rise to the mistaken belief that the products emanate
from the same source.
We find, therefore, that there is a sufficient
relationship between applicant’s and registrant’s products
as to be likely to cause confusion if they are intended to
be sold under the same or a similar mark.

2. The Marks Are Similar.

Applicant argued that VECTOR ACCESS TECHNOLOGY is not
similar to VECTOR because VECTOR is a weak mark entitled to
only a narrow scope of protection and, therefore, the
addition of the term “Access Technology” to applicant’s
mark is sufficient to distinguish it from registrant’s
mark. Applicant asserted that because the definition of
“vector” means “[a] quantity, such as a velocity,
completely specified by a magnitude and a direction” and
because “registrant’s fracture fixation device performs its
function by exerting forces in a particular direction to
immobilize a fracture”, the registrant’s VECTOR mark is
suggestive.10

10 Presumably, the source of this information is registrant’s
website. (Applicant’s Response to Office Action No. 1, Exhibit
B). As noted by applicant, registrant’s website does not
reference the VECTOR trademark. Therefore, applicant’s reliance
on the website information to conclude that the VECTOR product is
a femoral nail used in orthopedic surgery and, thus, performs as
described by applicant is speculation.
Serial No. 78304641
10
In support of its argument, applicant submitted the
following third-party registrations, owned by different
entities, comprising the word “vector,” in whole or in
part, for medical devices to show the suggestive nature of
the word “vector”:

Reg. No. Mark Goods

2,443,209 VECTOR Dental equipment, namely,
ultrasonic abrasion and scaling
apparatus

2,220,942 VECTOR III Orthodontic devices, namely
orthodontic springs, ligatures and
arch wires

2,669,387 VECTOR Medical guiding catheters

1,742,216 VECTOR Medical ultrasound equipment for
use in diagnosis and monitoring
soft tissue conditions

1,412,167 VECTOR BAR Orthopedic surgical traction
device (canceled)

1,426,450 VEKTOR Cardiac pacers (canceled)

The Examining Attorney cited Registration No.
2,014,731 for the mark VECTOR for “arthroscopy drill guide
system comprising drill bits, probes, wire and drill
guides, aligners, shaping tools, plugs, and sterilization
trays” as a bar to registration. During the prosecution of
the application, the Examining Attorney withdrew this
reference. Because the Examining Attorney cited
Serial No. 78304641
11
Registration No. 2,014,731 as a bar to registration,
applicant did not include it in its list of third-party
registrations. Nevertheless, we will consider this
registration as if applicant had submitted it.11
In addition, the applicant relied on dictionary
definitions for the word “vector” from “Dictionary.com” and
the “On-line Medical Dictionary”. “Dictionary.com”
provided definitions from several sources such as the
American Heritage Dictionary of the English Language (4th
Ed. 2000) and Merriam-Webster Medical Dictionary (2002).
One definition representative of the definition from the
American Heritage Dictionary of the English Language
referenced by applicant is set forth below:
Mathematics.

a. A quantity, such as velocity,
completely specified by a
magnitude and a direction.

b. A one-dimensional array.

c. An element of vector space.

The definition from the Merriam-Webster Medical
Dictionary provides the following definition:
A quantity that has magnitude and
direction and that is usually

11 Applicant also included canceled Registration No. 1,785,404 for
the mark VECTOR for “orthopedic implants and prosthesis; namely,
a fracture fixation device.” The registrant owned this
registration.

Serial No. 78304641
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represented by part of a straight line
with the given direction and with a
length representing the magnitude.

“On-Line Medical Dictionary” provides the following
definition:
A term used to describe
something that has both direction and
magnitude.

Applicant’s mark VECTOR ACCESS TECHNOLOGY and
registrant’s mark VECTOR differ only by the descriptive and
disclaimed term “Access Technology.”12 Applicant posits
that the addition of this term is a meaningful distinction.
We disagree.
A. The similarity of the marks.
The similarity or dissimilarity of the marks are
analyzed in their entireties as to appearance, sound,
connotation and commercial impression. In re E.I. du Pont
de Nemours & Co., supra. While marks must be compared in
their entireties, it is not improper to accord more or less
weight to a particular feature of a mark. In re National
Data Corporation, 753 F.2d 1056, 24 USPQ 749, 751 (Fed.
Cir. 1983). That a particular feature of a mark is
descriptive with respect to the products at issue justifies
giving less weight to that portion of the mark. In re

12 The Examining Attorney submitted two articles using “access
technology” to describe surgical entry into the patient’s body.
Serial No. 78304641
13
National Data Corporation, supra. The record shows that
“Access Technology” is descriptive when used in connection
with subcutaneous spinal positioning medical devices.
Thus, the word “Vector” is the dominant portion of
applicant’s mark.
The dominance of the word “Vector” in applicant’s mark
is reinforced by its location as the first word in the
mark. The Board has found a likelihood of confusion in the
case of marks with identical initial terms to which the
applicant has added a suffix. Presto Products Inc. v.
Nice-Pak Products Inc., 9 USPQ2d 1895, 1897 (TTAB 1988)
(“it is often the first part of a mark which is most likely
to be impressed in the mind of a purchaser and
remembered”). Thus, VECTOR ACCESS TECHNOLOGY suggests that
applicant’s products are a specific line of VECTOR
products.
Applicant’s mark incorporates the entirety of
registrant’s mark. Likelihood of confusion is often found
where the entirety of one mark is incorporated within
another. Johnson Publishing Co. v. International
Development Ltd., 221 USPQ 155, 156 (TTAB 1982)(EBONY for
cosmetics and EBONY DRUM for hairdressing and conditioner);
In re Denisi, 225 USPQ 624, 626 (TTAB 1985) (PERRY’S PIZZA
for restaurant services specializing in pizza and PERRY’S
Serial No. 78304641
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for restaurant and bar services); In re South Bend Toy
Manufacturing Company, Inc., 218 USPQ 479, 480 (TTAB 1983)
(LIL’ LADY BUGGY for toy doll carriages and LITTLE LADY for
doll clothing).
In analyzing the marks in their entireties, the
relevant consumers are likely to find the marks VECTOR
ACCESS TECHNOLOGY and VECTOR similar because the dominant
portions of both marks are identical and the addition of
the descriptive term “Access Technology” is not a
significant distinguishing element of applicant’s mark.
Thus, VECTOR and VECTOR ACCESS TECHNOLOGY are similar in
appearance, sound, meaning, and commercial impression.
B. The third-party registrations and dictionary
definitions.

Applicant argues that “registrant’s fracture fixation
device performs its function by exerting forces in
particular directions to immobilize a fracture” and,
therefore, “Vector” is suggestive and entitled to only a
narrow scope of protection such that the addition of the
term “Access Technology” is sufficient to distinguish
applicant’s mark from the mark in the cited registration.
(Applicant’s Brief, pp. 5-6).13 According to applicant, the

13 As indicated in footnote 10, applicant’s description of
registrant’s VECTOR fracture fixation device is not supported by
the record.
Serial No. 78304641
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dictionary definitions and the third-party registrations
show that “Vector” has a well-understood meaning and that
registrant’s mark has been chosen to convey that meaning.
In the case sub judice, we do not consider the dictionary
definitions and the third-party registrations significantly
probative in ascertaining the meaning of the word “vector”
or the strength to be accorded registrant’s mark.
First, the record in this case is not so strong as to
persuade us that the suggestive connotation between
“vector” and medical products, specifically orthopedic and
spinal equipment, is so common or obvious so as to restrict
the scope of protection accorded the cited registration.
In our opinion, VECTOR, while arguably suggestive, is not
so highly suggestive as to border on descriptive and
thereby preclude a finding of likelihood of confusion.
King Candy Company v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 109 (CCPA 1974)(“The likelihood of
confusion is to be avoided, as much between ‘weak’ marks as
between ‘strong’ marks, or as between a ‘weak’ and a
‘strong’ mark.”). Moreover, the existence of other
confusingly similar marks already on the register will not
aid an applicant to register another confusingly similar
mark. AMF Inc. v. American Leisure Products, Inc., 474
F.2d 1403, 177 USPQ 268, 269 (CCPA 1973); Lilly Pulitzer,
Serial No. 78304641
16
Inc. v. Lilli Ann Corporation, 376 F.2d 324, 153 USPQ 406,
407 (CCPA 1967); In re Total Quality Group, Inc., 51 USPQ2d
1474, 1477 (TTAB 1999).
Second, as we indicated previously, VECTOR and VECTOR
ACCESS TECHNOLOGY when used in connection with a fracture
fixation device and a subcutaneous spinal positioning
device are similar marks. Thus, even assuming that marks
consisting of the word “vector” may be weak marks, this
does not aid applicant because the commercial impression
created by both marks is the same. In re Pollio
Corporation, 8 USPQ2d 2012, 2015 (TTAB 1988); Hollister
Incorporated v. Indent A Pet, Inc., 193 USPQ 439, 442 (TTAB
1977) (“even highly suggestive or ‘weak’ marks are entitled
to be protected against the registration of the same or a
similar mark for the same or closely related products.”).
We believe that the relevant purchasers would recollect and
associate the goods of both the applicant and the
registrant with a single source because of the similarities
of the marks.
Finally, even if the differences in the marks were
noted and perceived, because of the similarity of the
products, the relevant purchasers might believe that the
products are variations of different product lines from a
common producer of surgical equipment. It would be
Serial No. 78304641
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natural, upon noting the common use of the word “Vector,”
to assume that the manufacturer of the fracture fixation
devices had incorporated a subcutaneous spinal positioning
device into its portfolio of products.
In view of the foregoing, there is insufficient
evidence to undermine the strength of the registrant’s
mark.

3. There Is Insufficient Evidence Regarding Purchaser
Care To Outweigh The Similarity Of The Marks And The
Similarity Of The Products.

With respect to the degree of consumer care, applicant
argued that surgeons who purchase applicant’s products and
registrant’s products exercise a high degree of care in
making decisions regarding those goods. Just from the
record description of goods, one would expect that all of
applicant’s and registrant’s purchasers would be highly
sophisticated and that they would take great care in
selecting surgical equipment. However, there is nothing in
the record to explain how that care relates to trademarks
or that the surgeons would unquestionably know the source
of these products. Indeed, there is nothing in the record
regarding the cost of the products, the evaluation process
used in selecting surgical equipment, or the salespeople
who introduce the products to the surgeons. In the
Serial No. 78304641
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universe of surgical equipment, there is no evidence
suggesting the degree of attention that surgeons will pay
to trademarks. Thus, notwithstanding that the purchasers
may be technically knowledgeable, there is no evidence
supporting their knowledge of trademarks for the products
proposed for sale by applicant and sold by registrant. In
re Decombe, 9 USPQ2d 1813, 1815 (TTAB 1988) (“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.
[Internal citation omitted]. Nor does it guarantee
knowledge of the range of products of the parties with whom
one is dealing.”).
While surgeons may exercise great care in purchasing
surgical equipment, in this case, there is insufficient
evidence regarding the degree of care to overcome the
similarity of the marks and the similarity of the products.
We find that there is a likelihood of confusion
between VECTOR ACCESS TECHNOLOGY proposed for use in
connection with “medical devices, namely, portable
alignment devices that hook onto screws implanted into
spines for subcutaneously positioning guidewires through
bone anchors, hooks, guidewires, screws, anchors, implants,
and surgical instruments” and VECTOR used in connection
Serial No. 78304641
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with “orthopedic implants and prosthesis; namely, a
fracture fixation device.”
Decision: The refusal to register is affirmed.