Quantgene Inc.

Trademark Trial and Appeal Board

Oct 12, 2021

88720359 (T.T.A.B. Oct. 12, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: October 12, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Quantgene Inc.
_____

Serial No. 88720359
_____

Jeffrey A. Finn of Finn IP Law, P.C.,
for Quantgene Inc.
Douglas M. Lee, Trademark Examining Attorney, Law Office 129,
Pam Willis, Managing Attorney.
_____

Before Bergsman, Coggins, and Lebow,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
Quantgene Inc. (“Applicant”) seeks registration on the Principal Register of the
mark QUANTGENE (in standard characters) for, as amended:
Diagnostic testing services, namely, medical diagnostic
testing for cancer and other diseases and disorders;
medical testing for diagnostic or treatment purposes;
providing cancer screening services, in International Class
44.1

1 Application Serial No. 88720359 was filed on December 9, 2019, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
Serial No. 88720359
- 2 -
The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied
to the services identified in the application, so resembles the mark QUANTIGEN (in
standard characters) for “consulting services in the fields of biotechnology,
pharmaceutical research and development, clinical laboratory testing, clinical
diagnostics, and pharmacogenetics,” in International Class 42,2 on the Principal
Register as to be likely to cause confusion, to cause mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed and briefed. We affirm the refusal to
register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act provides that a proposed mark, for which
application has been made, may be refused registration if it “[c]onsists of or comprises
a mark which so resembles a mark registered in the Patent and Trademark Office, or
a mark or trade name previously used in the United States by another and not
abandoned, as to be likely, when used on or in connection with the goods [or services]
of the applicant, to cause confusion, or to cause mistake, or to deceive . . . .” 15 U.S.C.
§ 1052(d).

2 Registration No. 5383467, issued January 23, 2018.
Serial No. 88720359
- 3 -
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record 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) (setting forth factors
to be considered, referred to as “DuPont factors”) cited in B&B Hardware, Inc. v.
Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We
consider each DuPont factor for which there is evidence and argument. In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). “Not all
DuPont factors are relevant in each case, and the weight afforded to each factor
depends on the circumstances. Any single factor may control a particular case.”
Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 2020 USPQ2d
10341, *3 (Fed. Cir. 2020) (internal citation omitted).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities of the services. See In re Chatam Int’l Inc.,
380 F.3d 1340, 71 USPQ2d 1944, 1945 (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
Serial No. 88720359
- 4 -
relatedness of the [services].”’) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308
F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. Similarity or Dissimilarity of the Services
We begin with the second DuPont factor, which “considers ‘[t]he similarity or
dissimilarity and nature of the goods or services as described in an application or
registration.” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed.
Cir. 2018) (quoting DuPont, 177 USPQ at 567). Therefore, we must make our
determination based on the services as they are identified in the application and cited
registration. See Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d
1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002); In re Dixie Rests. Inc.,
105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); Octocom Sys., Inc. v. Houston
Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
The services need not be identical or even competitive to find a likelihood of
confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471,
1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000). Similarly, the issue is not whether the services will be confused with
each other, but rather whether the public will be confused as to their source. See Recot
Inc. v. Becton, 54 USPQ2d, at 1898 (“[E]ven if the goods [or services] in question are
different from, and thus not related to, one another in kind, the same goods [or
services] can be related in the mind of the consuming public as to the origin of the
goods [or services].”) See also Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d
Serial No. 88720359
- 5 -
1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (services need only be “related in some
manner and/or if the circumstances surrounding their marketing are such that they
could give rise to the mistaken belief that the goods [or services] emanate from the
same source.” (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB
2007)); In re Ox Paperboard, LLC, 2020 USPQ2d 10878, at *5 (TTAB 2020); L’Oreal
v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012).
It is sufficient for a finding of likelihood of confusion as to a particular class if
relatedness is established for any item of identified services within that class in the
application or cited registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp.,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). The application and registration
themselves may provide evidence of the relationship between the services. Hewlett-
Packard, 62 USPQ2d at 1005.
As indicated above, the services in the application, as amended, are “diagnostic
testing services, namely, medical diagnostic testing for cancer and other diseases and
disorders; medical testing for diagnostic or treatment purposes; providing cancer
screening services;” and the services in the cited registration are “consulting services
in the fields of biotechnology, pharmaceutical research and development, clinical
laboratory testing, clinical diagnostics, and pharmacogenetics.”
Applicant argues that it revised and narrowed the identification of services in its
application twice; first in the Response to Office Action, and then in the Request for
Reconsideration where it “substantially narrowed the identification of services,”
Serial No. 88720359
- 6 -
13 TTABVUE 3,3 to “further distance[]” them from the services in the cited
registration.4 Id. at 8. The Examining Attorney, however, argues that “Applicant’s
[remaining] medical diagnostic testing and medical testing and cancer screening
services are closely related to Registrant’s consulting services in the fields of
biotechnology, pharmaceutical, clinical laboratory testing, clinical diagnostics and
pharmacogenetics because they are complementary medical services often rendered
by the same sources under the same marks to the same class of consumers,”
15 TTABVUE 9, and posits that “Registrant’s consulting services in the broadly
identified fields of ‘clinical laboratory testing’ and ‘clinical diagnostics’ encompass[]

3 Citations to the briefs in the appeal record refer to the TTABVUE docket system. Citations
to the prosecution file refer to the .pdf version of the TSDR system record. In re Consumer
Protection Firm, 2021 USPQ2d 238, *3 n.3 (TTAB 2021).
4 We dispatch Applicant’s additional argument that the refusal was limited to services
Applicant has now deleted because “[t]he Office Actions never even mentioned Applicant’s
recited medical testing and screening services as being related to Registrant’s recited
services.” 13 TTABVUE 9. This argument is demonstrably false. In the first Office action, the
Examining Attorney not only noted that Applicant’s identification included the now-
remaining services but also emphasized them with bolding: “diagnostic services, namely,
medical diagnostic testing for cancer and other diseases and disorders . . . medical testing
for diagnostic or treatment purposes; providing cancer screening services.” March 13, 2020
Office Action at 3. The Examining Attorney also attached pages from both Registrant’s and
Applicant’s websites to the Office Action and argued that the websites demonstrated that
“[A]pplicant and [R]egistrant indeed both offer genetic diagnostic services and information
related thereto.” Id. at 4 (emphasis added). Similarly, in the final Office action the Examining
Attorney noted and emphasized Applicant’s “Diagnostic testing services, namely, medical
diagnostic testing for cancer and other diseases and disorders . . . medical testing for
diagnostic or treatment purposes; providing cancer screening services.” October 7, 2020
Final Office Action at 3 (emphasis in original). Responding to this argument in the action
denying reconsideration, the Examining Attorney clarified the issue for Applicant by stating
that “the refusal was never limited to only the now deleted services.” April 19, 2021
Reconsideration Letter at 4. We agree, as the record does not demonstrate that the
Examining Attorney ever limited the refusal to certain of Applicant’s services.
Serial No. 88720359
- 7 -
the subject matter of Applicant’s services, namely, medical diagnostic testing and
medical testing and screening.” Id.
Where services are broadly identified, they are deemed to encompass all of the
services of the nature and type described. Sw. Mgmt., Inc. v. Ocinomled, Ltd.,
115 USPQ2d 1007, 1025 (TTAB 2015); In re Hughes Furniture Indus., Inc.,
114 USPQ2d 1134, 1137 (TTAB 2015). Applicant’s broadly identified medical testing
services necessarily include genetic testing and testing using genetic information.
Indeed, the evidence of record includes an excerpt from Applicant’s website indicating
that Applicant’s testing services use genetic material.5 See March 13, 2020 Office
Action at 34-37 (“Deep Genomics Platform,” “Unlocking the Deep Human Genome,”
“Our GRIFFIN Deep Genomics Platform combines deep genomic sequencing and AI
to enable accurate profiling of every copy of DNA in blood samples at 100,000X
depth.”). Similarly, we give Registrant’s identification its full sweep, and each field of
Registrant’s consultation services may include genetics. Indeed, the evidence of
record includes an excerpt from Registrant’s website indicating that Registrant
focuses on “genomic services.”6 See Id. at 38-39.

5 Applicant’s argument that it “distanced its identification of services” from Registrant’s
services “by removing all references to providing information in the genetic field,”
13 TTABVUE 8, fails to appreciate that its remaining identification does not exclude genetic
testing or screening or otherwise limit the services to use of non-genetic information or
components as part of the testing or screening.
6 To demonstrate the nature of Registrant’s fields of consultation, the Examining Attorney
adduced evidence explaining that “biotechnology is a branch of medicine that uses living cells
and cell materials” and “some of the most recent uses of biological tech is work in genetic
testing;” and that “[p]harmacogenetics . . . is the study of how genes affect the body’s response
to certain medicines” and “[p]harmacogenetic testing looks at specific genes to help figure out
the types of medicine and dosages that may be right for the patient.” March 13, 2020 Office
Action at 30 (wgu.edu) and 27 (medlineplus.gov).
Serial No. 88720359
- 8 -
In support of the argument that the services are related, the Examining Attorney
made of record several third-party webpages in an attempt to “establish that
companies that offer medical testing and screening services also often offer consulting
services directly related to those services.” 15 TTABVUE 10. The Examining Attorney
points to several specific examples including the following:
 Cincinnati Children’s (cincinnatichildrens.org)7
offering clinical laboratory services for detection,
diagnosis, and treatment of various oncologic,
hematologic and immunologic disorders; as well as
clinical consultation, test interpretation, and
consultation regarding test selection, clinical
interpretation, medical management, and follow-up
testing.
 Genetics Center (geneticscenter.com)8 offering
medical diagnostic testing, cancer screening,
comprehensive clinical and laboratory services; as
well as a genetic consultation services and teams for
both patients and physicians involving geneticists,
counselors, laboratory personnel, clinical
coordinators, and nurses.
 Genome Medical (genomemedical.com)9 offering
diagnostic, proactive, and pharmacogenomics
testing for genetic disease, inherited disorders, and
medication sensitivity; as well as genetic counseling
services and personalized medical recommendations
for patients and physicians.
 Greenwood Genetic Center (ggc.org)10 offering
cancer screening, medical diagnostic testing,
diagnostic laboratory, and molecular laboratory
services to diagnose a wide variety of disorders; as
well as clinical referrals, and genetic consultation

7 April 19, 2021 Reconsideration Letter at 27-32.
8 Id. at 33-40.
9 Id. at 41-54.
10 Id. at 55-68.
Serial No. 88720359
- 9 -
with links for both patients and healthcare
professionals.
 Mayo Clinic (mayoclinic.org)11 offering various
medical testing including diagnostic genetic testing
and pharmacogenetics testing; as well as clinical
trials and genetic counseling.
 Penn Medicine (pennmedicine.org)12 offering cancer
screening, laboratory medicine diagnostic tests, full
service diagnostics, a complete menu of routine and
esoteric tests on blood and other body fluids; as well
as consultation for the workup of bleeding disorders,
consultation in clinical chemistry, consultative
services for infectious diseases, and laboratory
consultations.
 Quest Diagnostics (questdiagnostics.com)13 offering
diagnostic tests, and physician and hospital
laboratory services; as well as clinical diagnostics
consultation.
 Stanford Health Care (med.standford.edu)14 offering
cancer genetics testing, panel genetic testing,
diagnostic pathology, clinical trial opportunities; as
well as genetic counseling and personalized
consultations.
We find that the third-party webpage evidence showing the same mark used for
both medical testing and screening services and consulting services directly related
to those services is probative to demonstrate that Applicant’s services and
Registrant’s services are related for likelihood of confusion purposes. See, e.g., Detroit
Athletic Co., 128 USPQ2d at 1051 (relatedness supported by evidence that third

11 Id. at 7-21.
12 Id. at 69-77.
13 Id. at 78-87.
14 Id. at 88-104.
Serial No. 88720359
- 10 -
parties sell both types of goods under same mark, showing that “consumers are
accustomed to seeing a single mark associated with a source that sells both.”); In re
Embiid, 2021 USPQ2d 577, at *22-23 (TTAB 2021) (citing Ox Paperboard, 2020
USPQ2d 10878, at *5; and Hewlett-Packard, 62 USPQ2d at 1004); In re Anderson,
101 USPQ2d 1912, 1920 (TTAB 2012) (Internet excerpts from “several third-party
car dealerships offering ‘tires’ for sale on their websites” was “evidence that
consumers expect to find both ‘tires,’ . . . “and ‘automobiles’ . . . emanating from a
common source.”); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009)
(accepting website evidence to show relatedness of the goods). The second DuPont
factor weighs in favor of finding likelihood of confusion.
B. Channels of Trade and Classes of Purchasers
Under the third DuPont factor, concerning “[t]he similarity or dissimilarity of
established, likely-to-continue trade channels,” Stone Lion, 110 USPQ2d at 1161
(quoting DuPont, 177 USPQ at 567), we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the services as they are identified in the application and the cited registration.
Octocom Sys., v. Hous. Comput. Servs., 16 USPQ2d at 1787; Mini Melts v. Reckitt
Benckiser LLC, 118 USPQ2d 1464, 1471 (TTAB 2016).
Applicant argues that its services are “directed to patients,” 13 TTABVUE 9, while
Registrant’s services are “professional” consulting services “typically for an hourly or
flat fee” and “occur at the R&D and business-to-business levels – not at the clinical
patient level.” Id. at 10. The Examining Attorney points out that there are no such
Serial No. 88720359
- 11 -
limitations in the respective identifications which “must be interpreted . . . without
reading into [them] restrictions or limitations that are not reflected therein,” 15
TTABVUE 17, and points to “the evidence of record, as opposed to mere argument,
[which] demonstrates that [Registrant’s] consultation services . . . [and Applicant’s]
medical diagnostic testing and screening services are often offered to both patients
and healthcare professionals.” Id. at 19.
Applicant and the Examining Attorney argue over the meaning of “consult.” The
Examining Attorney points to the definition of record which defines “consult” as a
verb meaning, variously, to “seek advice or information of,” “refer to, “take into
account,” “exchange views; confer,” “work or serve as a consultant,” and as a noun
meaning “[a] consultation, especially one involving physicians;”15 and posits that
Registrant’s consulting services “refer to providing advice or information to all
relevant classes of consumers.” 15 TTABVUE 18. On the other hand, Applicant
argues that “’[c]onsulting services’ is a phrase well understood to be offered by
dedicated professional ‘consultants’, with expertise in a particular field; the phrase
implies that a business exists to provide specialized expertise and advice (typically
for an hourly or flat fee) to others,” 13 TTABVUE 10, and posits that “consumers
would decidedly not refer to” the counseling services offered by the third-party clinical
providers and treatment and cancer screening centers of record “as ‘consulting
services.’” Id. at 11.

15 THE AMERICAN HERITAGE DICTIONARY (ahdictionary.com), March 13, 2020 Office Action at
8.
Serial No. 88720359
- 12 -
We agree that the identifications of services in the application and cited
registration have no limitations as to trade channels or classes of customers, and we
may not read any limitation into them. New Era Cap Co., Inc. v. Pro Era, LLC, 2020
USPQ2d 10596, at *47 (TTAB 2020) (citing SquirtCo v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 940 (Fed. Cir. 1983)). See also In re Mr. Recipe, LLC, 118 USPQ2d
1084, 1091 (TTAB 2016); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Therefore,
we must presume that the services travel in all channels of trade appropriate for such
services and are available to all usual consumers. See Hewlett-Packard, 62 USPQ2d
at 1005.
The majority of evidence relating to the trade channels through which the services
at issue travel and to whom they are directed comes from the third-party websites
submitted by the Examining Attorney, discussed above. The evidence shows that the
services identified in the application and cited registration are offered to both
patients and physicians. See, for example, the Cincinnati Children’s webpage and its
tabs for “Patients and Family” as well as “Healthcare Professionals” and
“Researchers;”16 the Mayo Clinic webpage and its information for both patients and
medical professionals;17 and the Greenwood Genetic Center webpage with tabs both
“For Patients” and “For Healthcare Professionals.”18 Additional evidence adduced by
the Examining Attorney reveals that “[t]wo classes of genetic testing are now

16 April 19, 2021 Reconsideration Letter at 27.
17 Id. at 7.
18 Id. at 55.
Serial No. 88720359
- 13 -
available: clinical or direct-to-consumer (DTC). A clinical genetic test is usually done
in a clinical environment with access to trained medical professionals, such as genetic
counselors, to help patients interpret the results, which can be very easy to
misinterpret. . . . By contrast, DTC genetic testing is done at home after ordering a
simple test kit online.”19
Contravening Applicant’s argument that Registrant’s services would not occur “at
the clinical patient level,” 13 TTABVUE 10, is an excerpt from Registrant’s website
revealing a “physician portal” tab.20 Similarly, there is nothing on Applicant’s own
website to indicate that its services are directed to patients.21 We find that the
evidence demonstrates that both Applicant’s and Registrant’s services, as broadly
recited, are offered to patients seeking genetic testing, and are offered through
clinical providers and treatment and cancer screening centers; that is, to overlapping
consumers in overlapping channels of trade. As such, the third DuPont factor also
favors a finding of likelihood of confusion.
C. Consumer Sophistication
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing.’” Stone
Lion, 110 USPQ2d at 1162, quoting DuPont, 177 USPQ at 567. Applicant argues,
without citing any evidence in the record, that “confusion [is] unlikely for the added

19 “What is genomic medicine?” (ncbi.nlm.nih.gov), March 13, 2020 Office Action at 14-15.
20 March 13, 2020 Office Action at 38.
21 See March 13, 2020 Office Action at 34-37; April 7, 2021 Request for Reconsideration at 30
& 34-35
Serial No. 88720359
- 14 -
reason of the high levels of thought and care that consumers put in before purchasing
medical and healthcare tests and screening (from Applicant) and biotech, pharma
and medical lab consulting services from Registrant.” 13 TTABVUE 13.
Applicant likens this case to Carefirst of Md., Inc. v. FirstHealth of the Carolinas,
Inc., 77 USPQ2d 1492 (TTAB 2005), where the Board stated that “[s]imply put, in
purchasing healthcare services, even ordinary consumers are likely to exercise
greater care and will know with whom they are dealing.” Id. at 1504. However, that
concluding statement was premised on health insurance services and health
maintenance organizations not at issue in this appeal. Specifically, the Board in
Carefirst determined that consumers of healthcare insurance and related services
such as HMO services will proceed cautiously and deliberately in making their choice
for health coverage. Id. at 1503-04.22
Unlike in Carefirst, this appeal does not involve overarching, gate-keeping health
maintenance organization membership. Applicant’s identified services are, simply,
“medical diagnostic testing for cancer and other diseases and disorders; medical
testing for diagnostic or treatment purposes; providing cancer screening services.”
And, importantly, Applicant submitted no evidence of the cost of these services or

22 Leading up to what Applicant would have us take as a sweeping generalization applicable
to even routine health-related services (e.g., blood tests) was an analysis based on the
important role health insurance plays in American lives. Before reaching the conclusion in
Carefirst, the Board explained that “the decision to purchase healthcare insurance and
related services, such as HMO services, is a very important decision for a person or a family
to make. This decision will have far reaching effects bearing on the quality of available
healthcare services. Moreover, it is common knowledge that the purchase of healthcare
services involves a substantial financial commitment; healthcare costs continue to increase
year after year.” Id. at 1503-04.
Serial No. 88720359
- 15 -
how consumers make purchasing decisions for them. Further, even if we accept that
purchasers of medical testing for diagnostic or treatment purposes might exercise an
elevated degree of care in purchasing such services, we are not persuaded that the
degree of care will avoid a likelihood of confusion, since the fact that “the relevant
class of buyers may exercise care does not necessarily impose on that class the
responsibility of distinguishing between similar trademarks for similar [services].
Human memories even of discriminating purchasers are not infallible.” In re Rsch.
and Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (internal
quotation omitted).
Because Applicant does not point to any evidence in the record to demonstrate
that consumers in the general public of the consulting and medical diagnostic testing
services offered by Registrant and Applicant are sophisticated or would exercise a
heightened degree of care, and the standard of care is that of the least sophisticated
potential purchaser, Stone Lion, 110 USPQ2d at 1163, we find the fourth DuPont
factor to be neutral.
D. Strength of the Cited Mark
We next turn to the arguments directed to the fifth and sixth DuPont factors,
which consider the strength of the cited registered mark, and the extent to which that
strength may be attenuated by “[t]he number and nature of similar marks in use on
similar” services. DuPont, 177 USPQ at 567.
The Examining Attorney argues that there is no “evidence that ‘QUANTGENE’
and ‘QUANTIGEN’ have any meaning. Rather, both appear to be coined terms. Thus,
Serial No. 88720359
- 16 -
it must be concluded that Registrant’s mark ‘QUANTIGEN’ is an arbitrary and
strong mark, and hence entitled to a wider scope of protection than less distinctive,
weaker, suggestive or descriptive marks.” 15 TTABVUE 7. Applicant argues that
“QUANT is a common word and is used by many companies as a first portion of a
mark used in connection [with] goods and services in many fields of use, including
the medical and consulting fields” and it is “the first portion of many third-party
marks that are registered. Therefore, the public can be expected to look to other
elements of the comparted [sic] marks to distinguish the sources of the respective
services.” 13 TTABVUE 4 n.2.
There are multiple flaws in Applicant’s argument, the primary of which is that
there is no evidence in the record to support any part of it. Because it is well settled
that “[a]ttorney argument is no substitute for evidence,” Cai v. Diamond Hong, 901
F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting Enzo Biochem, Inc. v.
Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005)), we need not
consider Applicant’s argument further. Cf. Jack Wolfskin Ausrustung Fur Draussen
GmbH v. New Millennium Sports, S.L.U., 707 F.3d 1363, 116 USPQ2d 1129, 1136
(Fed. Cir. 2015) (“voluminous” and “extensive” evidence of relevant third-party uses
and registrations were made of record by the applicant) (emphasis added). Moreover,
because the cited mark is registered on the Principal Register without a claim to
acquired distinctiveness, it is presumptively valid and distinctive for the identified
services. Trademark Act Sections 7(b) and 33(a), 15 U.S.C. §§ 1057(b) and 1115(a); In
re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007). Accordingly, Registrant’s
Serial No. 88720359
- 17 -
mark is entitled to no less than the normal scope of protection accorded to any
inherently distinctive mark.
E. Similarity or Dissimilarity of the Marks
Turning to the first DuPont factor, we consider the “similarities or dissimilarities
of the marks in their entireties as to appearance, sound, connotation and commercial
impression.” Detroit Athletic Co., 128 USPQ2d at 1051 (quoting DuPont, 177 USPQ
at 567). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018) (quoting
In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). Consumers may not necessarily
encounter the marks in close proximity and must rely upon their recollections thereof
over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988).
The emphasis of our analysis must be on the recollection of the average purchaser,
who normally retains a general, rather than specific, impression of trademarks. Inter
IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014). Since the
relevant services include “medical testing for diagnostic or treatment purposes” and
“consulting services in the fields of . . . clinical laboratory testing, clinical diagnostics,”
without any restrictions or limitations, the average purchaser is an ordinary
consumer of such services. Because this includes anyone seeking a medical diagnostic
test, including genetic testing, for any disease or any disorder, this contemplates
almost everyone.
The proper test regarding similarity “is not a side-by-side comparison of the
marks, but instead whether the marks are sufficiently similar in terms of their
Serial No. 88720359
- 18 -
commercial impression such that persons who encounter the marks would be likely
to assume a connection between the parties.” Cai v. Diamond Hong, 127 USPQ2d at
1801 (quoting Coach Servs. v. Triumph Learning, 101 USPQ2d at 1721 (internal
quotation marks and citation omitted)). We keep in mind that “[s]imilarity is not a
binary factor but is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747, 113
USPQ2d 1082, 1085 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d 1340,
68 USPQ2d 1059, 1062 (Fed. Cir. 2003)).
The Examining Attorney argues that the marks “are similar in sound, appearance,
and overall commercial impression,” 15 TTABVUE 7, because “each mark consists of
a nine letter word which begins with the same five letters, namely, the term ‘QUANT,’
followed by a four letter term containing the letters ‘GEN’ in that order” and “[t]he
sole difference between the two marks is a single vowel which is combined with the
term ‘GEN’.” Id. at 6. Applicant acknowledges that “the first five (5) letters of both
marks are the same –QUANT,” but emphasizes that “the remainder of each [mark is]
decidedly different from each other: GENE . . . versus IGEN” which difference, it
argues, is “meaningful,” 13 TTABVUE 4-5, as it causes the “marks [to] have very
different cadences and sound.” Id. at 7. Specifically, Applicant argues that “taking an
objectively reasonable pronunciation approach” reveals that the “natural and
expected pronunciation” of Registrant’s mark would be “the three-syllabic term
QUAN TI GEN (‘kwan-te-jen’),” while Applicant’s mark would be pronounced as “a
two-syllable term, as in ‘kwant-jean’.” Id. at 6-7.
Serial No. 88720359
- 19 -
Unsurprisingly, Applicant focuses on the differences in appearance and sound
while the Examining Attorney focuses on the similarities. Nonetheless, it is
undisputed that each mark begins with the same lettering Q-U-A-N-T, and that each
mark contains the trailing lettering G-E-N. The difference in spelling, as the
Examining Attorney notes, relates to the use and placement of a different vowel:
Registrant’s mark QUANTIGEN includes an “I” and places that vowel before the G-
E-N portion; while Applicant’s mark QUANTGENE includes an “E” and places that
vowel after the G-E-N portion. The marks are highly similar in appearance to the
extent each begins with Q-U-A-N-T and contains G-E-N, but are nonetheless slightly
dissimilar due to the placement of a different vowel.
The marks are also similar in sound to the extent each begins with Q-U-A-N-T.
Neither QUANTIGEN nor QUANTGENE is a recognized word, and it is well settled
that “[t]here is no correct pronunciation of a trademark that is not a recognized word,”
StonCor Group, Inc. v. Specialty Coatings, Inc., 759 F.3d 1327, 111 USPQ2d 1649,
1651 (citing In re Belgrade Shoe Co., 411 F.2d 1352, 162 USPQ 227 (CCPA 1969)).
While we agree with Applicant that QUANTIGEN reasonably may be pronounced as
/kwan-tə-jen/, it is equally possible and reasonable that QUANTIGEN may be
pronounced as /kwant-ə-jen/, /kwant-ə-jun/, /kwant-i-jen/, /kwant-i-jun/, /kwan-tə-
jun/, /kwan-ti-jen/, and /kwan-ti-jun/, based on standard English pronunciation.23

23 In an attempt to rebut the Examining Attorney’s argument of how QUANTIGEN “could be
pronounced,” Applicant inserted within its brief a hyperlink to an audio clip of an interview
with Registrant’s CEO and founder to demonstrate how he says the mark in conversation. 13
TTABVUE 6 n.3. The evidence is both untimely and not properly made of record. The record
in an application should be complete prior to filing the ex parte appeal, Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d), and web addresses or hyperlinks are insufficient to make the
Serial No. 88720359
- 20 -
These are all quite similar, with slight variations. As suggested by Applicant,
QUANTGENE may be pronounced as /kwant-jeen/. See Inter IKEA Sys. v. Akea, 110
USPQ2d at 1740 n.19 (considering “all the reasonable possibilities” for the marks’
pronunciations) (citing Centraz Indus., Inc. v. Spartan Chem. Co., 77 USPQ2d 1698,
1701 (TTAB 2006); Edison Bros. Stores, Inc. v. Brutting E.B. Sport-Int’l GmbH, 230
USPQ 530, 533 (TTAB 1986)). The /kwant-jeen/ pronunciation is different in sound,
but not a world apart, from /kwan-tə-jen/ or any of the other reasonable
pronunciations. We find that the marks have similar, albeit not identical,
pronunciations.
On the one hand Applicant argues, without citing to any evidence, that the /kwant-
jeen/ pronunciation it suggests for its own mark is “the clearly natural and expected
pronunciation,” while on the other hand Applicant decries the Examining Attorney’s
earlier arguments that the same mark may be pronounced as “QUAN T GENE”24 as
being made without “cite[] to [any] evidence.” 13 TTABVUE 6. However, Applicant
seeks registration of its mark in standard characters, which is not limited to a
particular font style, size, or color, Trademark Rule 2.52(a), 37 C.F.R. § 2.52(a), and
could, if registered, therefore use a style, size, or color to emphasize the “T” in its

underlying webpages of record. ADCO, 2020 USPQ2d 53786, at *2; see also In re Aquitaine
Wine USA, LLC, 126 USPQ2d 1181, 1195 n.21 (TTAB 2018) (Board does not consider
websites for which only links are provided). At any rate, as noted above QUANTIGEN is not
a dictionary term with a known pronunciation. We will not belabor the point except to note
that “there is no correct pronunciation of a trademark, and consumers may pronounce a mark
differently than intended by the brand owner.” In re St. Helena Hosp., 113 USPQ2d at 1085
(quoting In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012)).
24 See March 13, 2020 Office Action at 3; October 7, 2020 Final Office Action at 2; April 19,
2021 Reconsideration Letter at 4.
Serial No. 88720359
- 21 -
mark, making it likely that the “T” would be perceived and pronounced separately.
Moreover, because both Applicant’s and Registrant’s marks appear in standard
characters we must consider all possible presentations of those marks, including their
presentation in the same stylization. See Viterra, 101 USPQ2d at 1910; Citigroup Inc.
v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011)
(analysis of standard character marks not limited to “reasonable manners” of
depiction). It is equally possible that both marks will be presented in all capital letters
and in the same color. Indeed, the record demonstrates that is at least one way in
which each mark is currently being used: Registrant’s mark has been depicted in
white, all capital, sans serif letters as and Applicant’s mark has also
depicted in white, all capital, san serif letters as .25 See Viterra
Inc., 101 USPQ2d at 1910 (quoting Citigroup v. Capital City Bank Grp., 98 USPQ2d
at 1259 (“[I]llustrations of the mark as actually used may assist the [Board] in
visualizing other forms in which the mark might appear.”)).
We acknowledge that there are minor differences in appearance and sound when
the marks are viewed or verbalized next to each other and analyzed under a
microscope, but, of course, “[t]he proper test is not a side-by-side comparison of the
marks.” Cai v. Diamond Hong, 127 USPQ2d at 1801 (quoting Coach Servs. v.

25 See March 13, 2020 Office Action at 38 (quantigen.com) and 37 (quantgene.com). To be
clear, we consider here only the similar font style and color of the word marks; the design
elements accompanying the marks as actually used are not part the marks as registered or
proposed.
Serial No. 88720359
- 22 -
Triumph Learning, 101 USPQ2d at 1721). The slight differences between the marks
are not enough to distinguish them and create dissimilar marks. See Glenwood Labs.,
Inc. v. Am. Home Prods. Corp., 455 F.2d 1384, 173 USPQ 19 (CCPA 1972)
(MYOCHOLINE for a medicinal preparation for treatment of dysphagia, abdominal
distention, gastric retention, and urinary retention is similar to MYSOLINE for an
anti-convulsant drug); Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB
2004) (ONCASE v. ONCONASE: “As seen and spoken, this middle portion may be
missed by many of the relevant purchasers.”); In re Total Quality Grp. Inc., 51
USPQ2d 1474, 1476 (TTAB 1999) (“Applicant’s mark STRATEGYN and registrant’s
mark STRATEGEN are phonetic equivalents and differ by only one letter.”); In re
Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985) (“[A]lthough there are
certain differences between the [marks’ CAYNA and CANA] appearance, namely, the
inclusion of the letter ‘Y’ and the design feature in applicant’s mark, there are also
obvious similarities between them. Considering the similarities between the marks
in sound and appearance, and taking into account the normal fallibility of human
memory over a period of time (a factor that becomes important if a purchaser
encounters one of these products and some weeks, months, or even years later comes
across the other), we believe that the marks create substantially similar commercial
impressions.”).
We find the marks more similar than dissimilar in appearance and sound, and the
first DuPont factor weighs in favor of finding likelihood of confusion.
Serial No. 88720359
- 23 -
F. Absence of Evidence of Actual Confusion
The seventh DuPont factor considers the “nature and extent of any actual
confusion,” DuPont, 177 USPQ at 567, and the eighth DuPont factor considers “the
length of time during and conditions under which there has been concurrent use
without evidence of actual confusion.” In re Guild Mortg. Co., 2020 USPQ2d 10279,
at *6 (TTAB 2020) (quoting DuPont, 177 USPQ at 567). Generally, the absence of any
reported instances of confusion is meaningful only if the applicant provides
contextual evidence that allows the Board to meaningfully assess the length of time
and degree to which the applicant’s and registrant’s commercial activities would have
provided an opportunity for confusion to have manifested itself if it were likely. In re
Embiid, 2021 USPQ2d 577, at *39 (citing Guild Mortg., 2020 USPQ2d 10279, at *8);
Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, at *9 (TTAB 2019).
Applicant argues that “since at least as far back as 2015, [it is] not aware of a
single instance of actual confusion between the marks,” 13 TTABVUE 13, and cites
to the declaration of Johannes Bhakdi, its founder and CEO, who testified that
Applicant has “operated under the QUANTGENE name” since 2015, “operated and
maintained a publicly accessible website” since 2015, “launched its first clinical
feasibility trial for” a “platform” to profile DNA fragments in 2016, “announced a
breakthrough in early cancer detection” in 2016, and has “receive[d] significant press
coverage regarding its products and services, and the development thereof, in
connection with the QUANTGENE name and mark.”26 The exhibits attached to the

26 Bhakdi Decl. ¶¶ 3-7 (April 7, 2021 Request for Reconsideration at 21-22).
Serial No. 88720359
- 24 -
Bhakdi declaration include one press release and a screen shot from quantgene.com
showing the “Newsroom” tab of Applicant’s website which contains what appear to be
links to various media in which Applicant is likely mentioned.27 Applicant describes
the Newsroom page as a “compil[ation of] various news articles regarding the
company to date.”28 There is no evidence as to the amount and extent of Applicant’s
or Registrant’s sales of their identified services under their involved marks, nor
evidence of their geographical overlap.
While Applicant provided some minimal facts related to the use of its own mark,
it did not provide any evidence as to Registrant’s commercial activities. Applicant
previously argued that “[a]ccording to USPTO records, [Registrant] claims to have
been using the [c]ited [m]ark . . . since October 12, 2015.” April 7, 2021 Request for
Reconsideration at 19. However, with regard to the cited mark, the allegation in a
registration of a date of use is not evidence on behalf of the applicant or registrant; a
date of use of a mark must be established by competent evidence. See Trademark
Rule 2.122(b)(2); 37 C.F.R. § 2.122(b)(2).
Applicant’s argument that it is “not aware of a single instance of actual confusion
between the marks,” 13 TTABVUE 13, is entitled to little weight. Majestic Distilling,
65 USPQ2d at 1205 (“[U]ncorroborated statements of no known instances of actual
confusion are of little evidentiary value.” (citing In re Bissett-Berman Corp., 476 F.2d
640, 177 USPQ 528, 529 (CCPA 1973) (stating that self-serving testimony of

27 Bhakdi Decl., Exs. D and E (Id. at 31-35).
28 Bhakdi Decl. ¶ 7 (Id. at 22).
Serial No. 88720359
- 25 -
appellant’s corporate president’s unawareness of instances of actual confusion was
not conclusive that actual confusion did not exist or that there was no likelihood of
confusion)). As the Board observed in In re Opus One, Inc., 60 USPQ2d 1812, 1817
(TTAB 2001), and explained in Guild Mortg., 2020 USPQ2d 10279, at *7-8, in an ex
parte context, there is no opportunity to hear from the registrant about whether it is
aware of any reported instances of confusion, thus limiting the potential probative
value of evidence bearing on the eighth DuPont factor, compared with an inter partes
proceeding where the registrant has an opportunity to present argument and
evidence on the matter. We find the seventh and eighth DuPont factors to be neutral.
G. Summary and Conclusion
We have considered all of the arguments and evidence of record, and all relevant
DuPont factors. We have found that the QUANTGENE and QUANTIGEN marks are
more similar than dissimilar in appearance and sound, Registrant’s mark is entitled
to no less than the normal scope of protection accorded to any inherently distinctive
mark, Applicant’s and Registrant’s services are related and sold in overlapping
channels of trade to overlapping consumers who have not been shown to be
sophisticated, and there is a lack of meaningful evidence as to actual confusion and
concurrent use of the marks. On balance, we find these factors render confusion
likely.
II. Decision
The refusal to register Applicant’s mark QUANTGENE is affirmed.