Senior Tech-nologies, Inc.

Trademark Trial and Appeal Board

Feb 27, 2001

No. 75508524 (T.T.A.B. Feb. 27, 2001)

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06/26/01
Paper No. 13
JQ
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Senior Technologies, Inc.
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Serial No. 75/508,524
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Request for Reconsideration
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Vincent L. Carney for applicant.
Susan C. Hayash, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney).
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Before Quinn, Wendel and Drost, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
The Board, in a decision dated February 27, 2001,
affirmed the likelihood of confusion refusal to register
under Section 2(d).
Applicant has filed a request for reconsideration.1
Applicant advances three main grounds for reconsideration:
1 The Board never received applicant’s original request. Applicant, on
June 12, 2001, forwarded by facsimile transmission a copy of the
request. In view of the certificate of mailing and the stamped return
receipt, the request for reconsideration is considered timely.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
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(1)factors in applicant’s favor other than the two key
factors of similarity between the marks and similarity
between the goods should be given more weight;
(2)applicant’s mark was improperly dissected rather than
being considered as a whole; and (3)the dominant portion
TABS of applicant’s mark TABS SELECT was not properly
considered as the dominant part of the mark but merely as a
suggestive part of the mark whereas it is not suggestive or
only slightly suggestive.
The request for reconsideration is not well taken.
First, applicant argues that the Board ignored several
of the du Pont factors that are relevant in this case.
Applicant contends that there are different trade channels
for the products. As we pointed out in our original
decision, however, the identifications of goods do not
include any limitations. See: Octocom Systems Inc. v.
Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1788 Fed. Cir. 1990). Further, there is no evidence
of record supporting any distinctions in trade channels.
We addressed the sophistication of purchasers argument
and acknowledged the reasonableness of applicant’s
assertion that medical professionals are prone to be
sophisticated purchasers of medical equipment. This
sophistication, however, would not ensure against
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likelihood of confusion given the similarity between the
marks and the close relatedness of the goods.
The statement of no actual confusion is without any
evidentiary support. Although the absence of actual
confusion would weigh in applicant’s favor, applicant has
failed to provide any specifics regarding the extent of use
by applicant or registrant of their respective marks.
Thus, there is no way to assess whether there has been a
meaningful opportunity for confusion to occur in the
marketplace.
As to applicant’s second point, applicant’s mark was
not improperly dissected when it was compared with the
registered mark. Rather, we considered applicant’s mark
TABS SELECT in its entirety when we compared it with the
cited mark SELECT.
With respect to applicant’s third point, we stand by
our original assessment that the terms comprising
applicant’s mark, including the term “tabs” per se, are
suggestive. Given the dictionary meaning cited in our
decision, it is surprising that applicant continues to deny
the suggestive of the term when it is applied to a remote
patient position monitor. When considered as a whole,
applicant’s mark TABS SELECT is sufficiently similar in
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terms of sound, appearance and meaning to registrant’s mark
SELECT that confusion is likely to occur.
Lastly, applicant’s request for a remand to supplement
the record is denied. Such request at this late juncture
is manifestly untimely.
In conclusion, we remain of the view that purchasers
familiar with registrant’s “patient monitors” sold under
the mark SELECT would be likely to believe, upon
encountering applicant’s mark TABS SELECT for “remote
patient position monitors,” that the goods originated with
or are somehow associated with or sponsored by the same
entity.
The request for reconsideration is denied, and the
decision dated February 27, 2001 stands.