To: | Cruze Distribution, LLC (Erin.Dutter@aryse.com) |
Subject: | U.S. Trademark Application Serial No. 88780809 - VAPOR - N/A |
Sent: | September 10, 2020 04:05:23 PM |
Sent As: | ecom106@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88780809
Mark: VAPOR
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Correspondence Address:
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Applicant: Cruze Distribution, LLC
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Reference/Docket No. N/A
Correspondence Email Address: |
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NONFINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: September 10, 2020
This Office Action is in response to applicant’s correspondence dated 9/2/20.
The following requirement is withdrawn: 1) Entity.
The referenced prior-pending application has since registered. Therefore, registration is refused as follows.
Section 2(d) Refusal
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “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 per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b).
Applicant’s mark is VAPOR. The registrant’s mark is VAPORGRIP.
Applicant’s goods are “Orthopedic braces; Orthopedic supports.” The registrant’s goods are “Surgical and medical instruments and apparatus for use in general surgery, for use in orthopedic surgery, for use in endoscopy; apparatus and instruments for surgical purposes, namely, endoscopic equipment, endoscopy cameras, endoscopic forceps, fastening and guiding systems for endoscopes comprised of an electrical, mechanical or electro-pneumatical jointed tripod for holding and guiding endoscopes, surgical applicators, surgical blades, surgical cannulas, surgical chisels, surgical clips, surgical compressors, surgical cutlery, surgical cutters, endoscopic and surgical forceps, surgical guide hoses, surgical guide pipes, surgical guide wires, surgical implants comprising artificial material, surgical knifes, lasers for surgical and medical use, surgical perforators, surgical pliers, flexible surgical probe, surgical punches, surgical reamers, surgical retractors, surgical saws, surgical scalpels, surgical scissors, surgical staplers, surgical staples, surgical sutures, surgical trocars, surgical water jet cutters, associated surgical instrument sets for use in endoscopic surgery, drills for surgical and dental use, apparatus for removal of herniated vertebral discs, medical cutting devices, needles for medical use, skin staplers, medical pumps, namely, irrigators for medical use, suckers for medical use; high frequency electromagnetic and diagnostic apparatus; high frequency probes for medical purposes; medical and surgical apparatus and instruments, namely, insufflators; medical and surgical apparatus and instruments, namely, apparatus for dispensing dissolution of carbon dioxide scrubbing; medical water jet incision and removal apparatus for body tissue.”
In this case, the registration use(s) broad wording to describe the goods, which presumably encompasses all goods and/or services of the type described, including applicant’s more narrow goods. See, e.g., In re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). Specifically, registrant’s surgical and medical instruments and apparatus for use in orthopedic surgery could include applicant’s orthopedic braces and supports. Thus, applicant’s and registrant’s goods are legally identical. See, e.g., In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336, 209 USPQ 986, 988 (C.C.P.A. 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); Baseball Am. Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844, 1847 n.9 (TTAB 2004)). The likelihood of confusion analysis is for the actual goods listed in the identification. Applicant indicates that it would be willing to narrow its identification, however, applicant did not amend its identification in its response.
Additionally, the fact that purchasers are sophisticated or knowledgeable in a particular field does not necessarily mean that they are sophisticated or knowledgeable in the field of trademarks or immune from source confusion. TMEP §1207.01(d)(vii); see, e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d. 1317, 1325, 110 USPQ2d 1157, 1163-64 (Fed. Cir. 2014); Top Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170 (TTAB 2011). Further, where the purchasers consist of both professionals and the public, the standard of care for purchasing the goods is that of the least sophisticated potential purchaser. In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d. at 1325, 110 USPQ2d at 1163), aff’d per curiam, 777 F. App’x 516, 2019 BL 375518 (Fed. Cir. 2019).
For the reasons set forth above, registration is refused based on the Trademark Act Section 2(d). .
How to respond. Click to file a response to this nonfinal Office action.
/Tejbir Singh/
Trademark Attorney
Law Office 106
571-272-5878
571-273-9106 (fax)
Tejbir.Singh@uspto.gov
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