Leiner Health Products Inc.

Trademark Trial and Appeal Board

Sep 8, 2000

No. 75401884 (T.T.A.B. Sep. 8, 2000)

Paper No. 9
RFC
9/8/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Leiner Health Products Inc.
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Serial No. 75/401,884
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Michael A. Painter of Isaacman, Kaufman & Painter for
Leiner Health Products Inc.
Marc J. Leipzig, Trademark Examining Attorney, Law Office
115 (Tomas Vlcek, Managing Attorney).
_______
Before Cissel, Chapman and Bucher, Administrative Trademark
Judges.
Opinion by Cissel, Administrative Trademark Judge:
On December 8, 1997, applicant filed an application to
register the mark shown below
on the Principal Register in connection with "an over-the-
counter pharmaceutical which relieves heartburn, acid
indigestion and sour stomach," in Class 5. The basis for
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/401,884
2
filing the application was applicant's assertion that it
possessed a bona fide intention to use the mark in
connection with these goods in commerce.
The Examining Attorney refused registration under
Section 2(d) the Lanham Act on the ground that if applicant
were to use the mark it seeks to register in connection
with the pharmaceutical product specified in the
application, it would so resemble two registered
trademarks, both of which are owned by the same business,
that confusion would be likely. The first registered mark
cited as a bar to the instant application is shown below.
The registration1 identifies the products on which this mark
is used as "homeopathic pharmaceutical preparations for the
relief of minor anxiety, nervous tension or occasional
stress, under the form of drops." The second registration2
is for the mark shown below.

1 Reg. No. 1,885,532, issued on the Principal Register to Lehning
Enterprise Limited Liability Company France on March 21, 1995.
2 Reg. No. 1, 912,186, issued on the Principal Register to the
same company on August 15, 1995.
Ser No. 75/401,884
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The goods in in that registration are identified as
"homeopathic pharmaceutical preparations for the relief of
cold and flu symptoms, under the form of drops." Both of
the cited registrations are in Class 5.
Responsive to the refusal to register, applicant
presented arguments that confusion with either of the two
registered trademarks would not be likely if applicant were
to use the mark it seeks to register in connection with the
goods set forth in the application.
The Examining Attorney was not persuaded by
applicant's arguments, however, and the refusal to register
was made final in the second Office Action.
Applicant timely filed a notice of appeal. Both
applicant and the Examining Attorney filed briefs on
appeal, but applicant did not request an oral hearing
before the Board.
Based on careful consideration of the written
arguments and record in this application, we find that the
refusal to register is well taken. Confusion between the
cited registered marks and applicant's mark would be likely
because of the related nature of the goods and the
similarities of the commercial impressions created by these
marks.
Ser No. 75/401,884
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In order for confusion to be likely, the goods of the
parties do not need to be identical or even directly
competitive. All that is required is that they be related
in some manner or that the conditions surrounding their
marketing be such that they could be encountered by the
same purchasers under circumstances that could give rise to
the mistaken belief that the goods emanate from a common
source. In re International Telephone & Telegraph Corp.,
197 USPQ 910 (TTAB 1978).
Applicant seeks registration for an over-the-counter
pharmaceutical product for the relief of heartburn, acid
indigestion and sour stomach. The first cited registration
is for pharmaceutical preparations for the relief of minor
anxiety, nervous tension or occasional stress, and the
second is for pharmaceutical preparations for the relief of
cold and flu symptoms. These products, while not
identical, are obviously commercially related. All are
sold as over-the-counter remedies; none necessarily
requires a prescription. All treat common physical
disorders, i.e., heartburn, indigestion, nervous tension,
stress and the symptoms of colds and flu. As the Examining
Attorney points out, the treatment of "minor anxiety" or
"nervous tension" should not be considered "totally
divergent" (as applicant had put it), from the treatment of
Ser No. 75/401,884
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"heartburn" or "acid indigestion." In the case at hand,
the use of similar trademarks on these pharmaceutical
preparations which move through the same channels of trade
to the same ordinary consumers for the treatment of related
minor disorders would plainly be likely to lead to
confusion. Moreover, in the field of pharmaceutical
products, in view of the possibility of dire consequences
which could arise from taking the wrong medicine, an extra
measure of care must be taken to prevent confusion.
Schering Corp. v. Alza Corp., 207 USPQ 504 (TTAB 1980).
Notwithstanding applicant's argument to the contrary,
the mark sought to be registered, if used on the over-the-
counter pharmaceutical product specified in the
application, would be likely to be confused with the two
marks which are registered for related pharmaceutical
preparations. The test is not whether the marks can be
distinguished when subjected to a side-by-side comparison.
Rather, it is whether the marks create similar overall
commercial impressions. Visual Information Institute, Inc.
v. Vicon Industries Inc., 209 USPQ 179 (PTA the 1980). The
focus is on the recollection of the average purchaser, who
usually retains general, rather than specific, impressions
of trademarks. Chemtron Corp. v. Morris Coupling & Clamp
Co., 203 USPQ 537 (TTAB 1979).
Ser No. 75/401,884
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The mark applicant seeks to register is essentially
"L 75." The registered marks, on the other hand, are
"L.72" and "L.52." There are obvious differences between
these marks when they are compared next to each other,
including the fact that applicant intends to present the
letter "L" above the number and the fact that both
registered marks incorporate a period after the letter "L,"
whereas applicant does not intend to do so. As noted
above, however, side-by-side compasrison is not the test
for likelihood of confusion. Especially when we take into
account the falibility of the memories of typical
consumers, when these marks are considered in their
entireties, they create similar commercial impressions
because they are similar in sound and appearance, and none
has an apparent meaning or connotation in connection with
the goods. Consumers of over-the-counter preparations for
relief of minor disorders like colds, stress and
indigestion would be likely to assume that the use of
different two-digit numbers used after the same capital "L"
is to indicate distinctions among these medications
according to the particular symptoms they are intended to
relieve, but these consumers would also likely assume that
these similar marks indicate that all such products sold
under these three marks emanate from the same source.
Ser No. 75/401,884
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If we had any doubt as to whether confusion would be
likely, such doubt would have to be resolved in favor of
the registrant and against the applicant, who, as the
newcomer, has a duty to choose a mark that would not be
likely to cause confusion with the prior used and
registered mark. In re Hyper Shoppes (Ohio) Inc., 837 F.2d
840, 6 USPQ2d 1025 (Fed. Cir. 1988); Burroughs Wellcome Co.
v. Warner-Lambert Co., 203 USPQ 191 (TTAB 1979).
DECISION: The refusal to register is affirmed.
R. F. Cissel
B. A. Chapman
D. E. Bucher
Administrative Trademark Judges
Trademark Trial & Appeal Board
Ser No. 75/401,884
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