Radius Health, Inc.

Trademark Trial and Appeal Board

Oct 27, 2009

No. 78797031 (T.T.A.B. Oct. 27, 2009)

Mailed: October 27, 2009
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Radius Health, Inc.
________

Serial No. 78797031
_______

Rachelle A. Kagan of Bingham McCutchen LLP for Radius
Health, Inc.

Matt Einstein, Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).
_______

Before Hairston, Zervas and Kuhlke, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Radius Health, Inc. filed an application to register
the mark RADIUS and design, as shown below, for services
ultimately identified as “research services in the fields
of pharmaceuticals and medicines” in International Class
42.1

1 Application Serial No. 78797031, filed January 23, 2009, based
on a bona fide intention to use the mark in commerce. The
application contains the statement that: “The mark consists of
the word RADIUS and a stylized circle with a line drawn in the
center.”
THIS OPINION IS NOT A CITABLE
PRECEDENT OF THE TTAB
Ser No. 78797031
2

The trademark examining attorney refused registration
under Section 2(d) of the Trademark Act on the ground that
applicant’s mark, if used in connection with applicant’s
services, would so resemble the previously registered mark
RADIUS for “product design and development services for
others” in International Class 42,2 as to be likely to cause
confusion.
When the refusal was made final, applicant appealed.
Applicant and the examining attorney filed briefs.
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative
facts in evidence that are relevant to the factors set
forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563 (CCPA 1973). See also: In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003). In any likelihood of confusion analysis,

2 Registration No. 2576476, issued June 4, 2002. Affidavits
under Sections 8 and 15 accepted and acknowledged.
Ser No. 78797031
3
however, two key considerations are the similarities
between the marks and the similarities between the goods
and/or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
We first turn to a consideration of the similarity or
dissimilarity of the services identified in applicant’s
application, “research services in the fields of
pharmaceuticals and medicines,” and the services identified
in the cited registration, “product design and development
services for others.” It is not necessary that the
respective services be identical or even competitive in
order to support a finding of likelihood of confusion.
Rather, it is sufficient that the services are related in
some manner, or that the circumstances surrounding their
marketing are such, that they would be likely to be
encountered by the same persons in situations that would
give rise, because of the marks used thereon, to a mistaken
belief that they originate from or are in some way
associated with the same source or that there is an
association or connection between the sources of the
respective goods or services. See In re International
Ser No. 78797031
4
Telephone & Telegraph Corp., 197 USPQ 2d 910 (TTAB 1978).
Furthermore, it is well settled that the issue of
likelihood of confusion must be determined on the basis of
the services as they are set forth in the involved
application and the cited registration. See Octocom
Systems, Inc. v. Houston Computer Services, Inc., 918 F.2d
937, 16 USPQ2d 1783 (Fed. Cir. 1990); and Canadian Imperial
Bank of Commerce, N.A. v. Wells Fargo Bank, 811 F.2d 1490,
1 USPQ2d 1813 (Fed. Cir. 1987).
The examining attorney contends that in the absence of
any limitations, registrant’s identification of services
must be presumed to encompass the design and development of
pharmaceuticals for others, and that the design and
development of pharmaceuticals for others is related to
applicant’s research services in the fields of
pharmaceuticals and medicines. The examining attorney
relies on evidence from various websites to support his
position that the design and development of pharmaceuticals
for others, on the one hand, and research services in the
fields of pharmaceuticals and medicines, on the other hand,
are related. The following are excerpts from some of the
websites:
(1) The more than 6,000 people in our
AstraZeneca Development organization guide
potential new medicines through the
Ser No. 78797031
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pharmaceutical development process.
www.astrazeneca-us.com

(2) Ception Therapeutics is a biopharmaceutical
company focused on the discovery and development
of novel products to address areas of unmet
medical need. www.ceptiontx.com

(3) PPD is a leading global contract research
organization (CRO) providing discovery,
development and post-approval services as well as
compound partnering programs. www.ppdi.com

(4) “BASi is a drug development firm providing
firm contract research services and unique
products for the pharmaceutical, biotechnology
and medical device industries.
www.biocrossroadslinx.com

(5) Johnson & Johnson Pharmaceutical Research and
Development LLC … “[p]erforming innovative,
quality research and development is key to our
future. www.jnjpharmarnd.com

(6) The Bristol-Myers Squibb Research and
Development team has been helping patients
prevail against serious disease for the past 150
years. www.bms.com

(7) Sucampo’s research and development
principles target diseases affecting an aging
population. www.sucampo.com

(8) Capsugel’s state-of-the-art Pharmaceutical
Research and Development Center for lipid-based
and powder-fill systems … . www.capsugel.com

(9) Takeda Global Research & Development Center,
Inc. (TGRD) dedicates its resources to the Takeda
product pipeline in an effort to deliver
innovative medicines to patients. www.tpna.com

(10) Avena Drug Delivery Systems is a Nitto Denko
company, with revenues of over $4.5 billion,
which is one of the world’s largest manufacturers
of and a pioneer in transdermal drug delivery
systems. Nitto Denko has a 20-year history of
Ser No. 78797031
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providing pharmaceutical partners with fully
integrated, controlled-release transdermal
products that fulfill unmet market needs or are
high-quality, low-cost brand equivalents.
www.pharmaceutical-technology.com

In urging reversal of the refusal to register,
applicant contends that its identified services and
registrant’s identified services are readily
distinguishable, and that registrant’s identification of
services does not encompass the design and development of
pharmaceuticals for others, as the examining attorney
maintains. Specifically, applicant argues that:
The Applicant is in the business of conducting
pharmaceutical research and development for its
customers. The phrase “research and development”
has a commonly understood meaning when used in
the context of commerce. It typically refers to
“future oriented, longer-term activities in
science or technology, using similar techniques
to scientific research without predetermined
outcomes and with broad forecasts of commercial
yield.” See Research and Development, Wikipedia
attached hereto as Exhibit B.
….
The Registrant’s services, on the other hand, do
not include – or in any way relate to – the
research and development of potentially life
saving pharmaceuticals, consumed or injected by
humans. Rather, the Registrant is in the
business of designing and developing tangible
products. Product design has been defined as
“the idea, generation, concept development,
testing and manufacturing of a physical object or
service.” See Product Design, Wikipedia,
attached hereto as Exhibit D. (italics and
underlining in original).

Applicant’s Request For Reconsideration, pp. 10-11.

Ser No. 78797031
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To support its position, applicant has submitted the
Wikipedia excerpts for “Product design” and “Research and
development” referenced above; and excerpts from
registrant’s website showing some of the products
registrant has designed, e.g., a gaming headset, paper
shredder, air freshener, mobile phone, and air purifier.
In addition, we note that the Wikipedia excerpt for
“Product Design” further states that:
[Product design] covers more than the discipline
name – Industrial Design. Product Designers
conceptualize and evaluate ideas, making them
tangible through products in a more systematic
approach.
…
Aesthetics is considered important in Product
Design but designers also deal with important
aspects including technology, ergonomics,
usability, human factors and material technology.
(italics in original)
Also, we judicially notice that the McGraw-Hill Dictionary
of Scientific and Technical Terms (6th ed. 2003) defines
“product design” as: “[DES ENG] The determination and
specification of the parts of a product and their
interrelationship so that they become a unified whole.”
Based on the record herein, we conclude that the
examining attorney’s construction of the registrant’s
identification of services is overly broad and not
supported by any evidence. The services in the cited
registration are identified as “product design and
Ser No. 78797031
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development services for others.” The Board has stated
that “when the description of goods for a cited
registration is somewhat unclear, as in the case herein, it
is improper to simply consider that description in a vacuum
and attach all possible interpretations to it when the
applicant has presented extrinsic evidence showing that the
description of goods has a specific meaning to members of
the trade.” In re Trackmobile Inc., 15 USPQ2d 1152, 1154
(TTAB 1990). In other words, when the nature of the goods
or services is unclear, extrinsic evidence may be used to
demonstrate what a specific term means in an industry. In
this case, the nature of “product design and development
services for others” is unclear. The definitions of
“product design” per se suggest that it is an industry term
that refers to the design of an engineered or manufactured
device or apparatus; not a pharmaceutical drug or medicine.
Moreover, based on the definitions of “product design,” it
appears that “product design and development” is a unitary
phrase meaning the design and development of an engineered
or manufactured device or apparatus. The phrase certainly
does not appear to include the design and development of
pharmaceuticals for others, as the examining attorney
argues. So as to be perfectly clear, we have considered
the evidence of record to shed light on the significance of
Ser No. 78797031
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the identification of services in the cited registration;
not to improperly limit the scope thereof. When we do so,
we find that the identification of services does not
encompass the design and development of pharmaceuticals for
others.
The burden is on the examining attorney to establish
that the respective services are related, and he has not
met that burden on the record before us. The examining
attorney has failed to rebut applicant’s evidence that
registrant’s identification of services does not encompass
the design and development of pharmaceuticals for others.
Furthermore, there is no evidence that applicant’s
identified services, research services in the fields of
pharmaceuticals and medicines, are related to registrant’s
identified services, product design and development
services for others. Rather, the examining attorney’s
evidence shows that it is common for a single entity to be
engaged in research and/or development in the field of
pharmaceuticals and medicines.
Insofar as the trade channels and classes of
purchasers are concerned, inasmuch as the services
identified in the application and the cited registration
are unrelated, we conclude that the respective services
Ser No. 78797031
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travel through distinct trade channels to different classes
of potential purchasers.
There is no specific evidence which establishes, one
way or the other, whether the involved services are
purchased by knowledgeable and sophisticated purchasers,
and/or are purchased with a higher than normal degree of
care. At the very least, however, we believe it is
reasonable to assume from the applicant’s identification of
services itself that such services are of a type which are
or would be purchased by professionals in the
pharmaceutical and medical fields who would be
knowledgeable about the services.
As previously mentioned, applicant has submitted
third-party registrations for RADIUS marks to support its
position that registrant’s mark is a weak mark. However,
the third-party registrations are not evidence that the
marks which are the subject thereof are in use and that the
relevant purchasing public, having become conditioned to
encountering certain goods and services under marks which
consist of or include the word RADIUS, is familiar
therewith and is therefore able to distinguish the sources
thereof based upon differences in the marks. See, e.g.,
AMF Inc. v. American Leisure Products, Inc., 474 F.2d 1403,
177 USPQ 268; and In re Hub Distributing, Inc., 218 USPQ
Ser No. 78797031
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284 (TTAB 1983). In addition, none of the registrations
cover services which are even arguably related to the
services at issue in this case.3 Thus, the number and
nature of any similar mark(s) in use on the same or similar
services is not a relevant du Pont factor in this appeal.
As to the marks generally, we find that applicant’s
mark RADIUS and design is highly similar to the cited mark
RADIUS. The term RADIUS is the entirety of the
registrant’s mark, and it is the dominant portion of
applicant’s mark. While the design in applicant’s mark is
visually prominent, it is well settled that if a mark
comprises both a word and a design, then the word is
normally accorded greater weight because it would be used
by purchasers to request the goods or services. See In re
Appetito Provisions Co., 3 USPQ2d 1553 (TTAB 1987).
Moreover, the radius of a circle design in applicant’s
mark, reinforces the term RADIUS. For these reasons, we
consider the word RADIUS to be the dominant feature of
applicant’s mark. The dominant feature of applicant’s mark

3 For example, among the goods and services covered by the third-
party registrations are jewelry (Registration No. 2482436); snow
skis (Registration No. 2150872); fishing reels (Registration No.
2734913); and advertising agencies (Registration No. 2863422).
We note that applicant also submitted copies of several third-
party applications for RADIUS marks. Third-party applications
have “no probative value other than as evidence that the
application was filed.” In re Phillips-Van Heusen Corp., 63
USPQ2d 1047, 1049 n.4 (TTAB 2002).
Ser No. 78797031
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is identical to registrant’s mark, and we find that the
respective marks are identical in sound and quite similar
in appearance.
Insofar as meaning is concerned, the term RADIUS in
applicant’s mark appears to be arbitrary. In the cited
mark, the term RADIUS may be somewhat suggestive of product
design and development services.4 However, the similarities
in sound and appearance outweigh any differences in
connotation. Further, when the applicant’s mark and
registrant’s mark are considered in their entireties, the
marks engender similar commercial impressions in that they
both evoke the idea of a “radius.”
Nonetheless, we find that confusion is not likely in
this case, even though the marks are highly similar, due to
the differences between the respective services and trade
channels and the sophistication of the purchasers of
applicant’s services.
In sum, we conclude that there is not a likelihood of
confusion between applicant’s mark RADIUS and design when
used in connection with research services in the fields of
pharmaceuticals and medicines and the cited mark RADIUS

4 We judicially notice that The American Heritage Dictionary of
the English Language (4th ed. 2009) defines “radius” as, inter
alia: “A line segment that joins the center of a circle with any
point on its circumference.”
Ser No. 78797031
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used in connection with product design and development
services for others.
Decision: The refusal to register under Section 2(d)
is reversed.