To: | Bolt Medical, Inc. (jbroder@rbiplaw.com) |
Subject: | U.S. Trademark Application Serial No. 90478042 - APOLLO - 30228.101 |
Sent: | August 03, 2021 09:45:58 AM |
Sent As: | ecom108@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 Attachment - 32 Attachment - 33 Attachment - 34 Attachment - 35 Attachment - 36 Attachment - 37 Attachment - 38 Attachment - 39 Attachment - 40 Attachment - 41 Attachment - 42 Attachment - 43 Attachment - 44 Attachment - 45 Attachment - 46 Attachment - 47 Attachment - 48 Attachment - 49 Attachment - 50 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90478042
Mark: APOLLO
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Correspondence Address: |
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Applicant: Bolt Medical, Inc.
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Reference/Docket No. 30228.101
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: August 03, 2021
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 4380413. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the attached registration.
Applicant applied to register “APOLLO” for “Catheters for use in lithotripsy procedures and valvuloplasty procedures; Balloon catheters; Inflation devices for balloon catheters; Intracardiac catheter; Intravenous catheters; Medical apparatus for preventing or reversing heart failure; Medical apparatus for treating congestive heart failure; Medical devices for treating congestive heart failure; Patient medical monitors for monitoring intravascular lithotripsy procedures and valvuloplasty procedures; Consoles for monitoring, controlling and energizing catheters for intravascular lithotripsy and valvuloplasty procedures” in Class 010.
The cited mark is “APOLLO” for “Medical devices, namely, delivery catheters for liquid embolics for use in treating neurovascular conditions” in Class 010.
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. 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 and differences in the marks.”); TMEP §1207.01.
Similarity of the Marks
In the present case, applicant’s mark is “APOLLO” and registrant’s mark is “APOLLO”. These marks are identical in appearance, sound, and meaning, “and have the potential to be used . . . in exactly the same manner.” In re i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). Additionally, because they are identical, these marks are likely to engender the same connotation and overall commercial impression when considered in connection with applicant’s and registrant’s respective goods. Id.
Therefore, the marks are confusingly similar.
Relatedness of the Goods
In this case the application uses broad wording to describe “Balloon catheters” and “Intravenous catheters”, which presumably encompasses all goods of the type described, including the registration’s more narrow “Medical devices, namely, delivery catheters for liquid embolics for use in treating neurovascular conditions”. 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). Thus, these 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 attached evidence from Balt-USA.com, Microvention.com, Nordsonmedical.com, and Boundtree.com further supports this conclusion.
Additionally, the goods of the parties have no restrictions as to nature, type, channels of trade, or classes of purchasers and are “presumed to travel in the same channels of trade to the same class of purchasers.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)).
Based on the du Pont factors discussed above, a likelihood of confusion exists between applicant’s and registrant’s marks because these marks create a confusingly similar commercial impression and the goods at issue are overlapping. Therefore, applicant’s mark is refused registration under Trademark Act Section 2(d).
Applicant should note the following additional potential ground for refusal.
PRIOR-FILED APPLICATION (ADVISORY)
In response to this Office Action, applicant may present arguments in support of registration by addressing the issue of the potential conflict between applicant’s mark and the mark in the referenced application. Applicant’s election not to submit arguments at this time in no way limits applicant’s right to address this issue later if a refusal under Section 2(d) issues.
AMENDED IDENTIFICATION OF GOODS REQUIRED
The applicant’s identification of goods contains a number of words that are indefinite and/or overbroad as it contains words that do not clearly identify goods within a class and/or could identify goods in more than one international class. See 37 C.F.R. §2.32(a)(6); TMEP §§ 1402.01, 1402.03.
Applicant’s specific identification issues are set forth as follows:
Applicant may adopt the following wording to address the errors identified above, if accurate (please note, added language has been bolded and removed language has been struck through):
For assistance with identifying and classifying goods in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
RESPONDING TO THIS OFFICE ACTION
For this application to proceed, applicant must explicitly address each refusal and/or requirement in this Office Action. For a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above. For a requirement, applicant should set forth the changes or statements. Please see “Responding to Office Actions” and the informational video “Response to Office Action” for more information and tips on responding.
The USPTO does not accept emails as responses to Office Actions; however, emails can be used for informal communications and are included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
How to respond. Click to file a response to this nonfinal Office action.
/Alberto I. Manca/
Alberto I. Manca
Trademark Examining Attorney
Law Office 108, USPTO
571-272-5232
alberto.manca@uspto.gov
RESPONSE GUIDANCE