79216270 (T.T.A.B. Sep. 30, 2019)

Sergii Voloshyn

Trademark Trial and Appeal BoardSep 30, 2019

79216270 (T.T.A.B. Sep. 30, 2019)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: September 30, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Sergii Voloshyn _____ Serial No. 79216270 _____ Alexander S. Lazouski of Lazouski IP LLC, for Sergii Voloshyn. Dean A. Hopkins II, Trademark Examining Attorney, Law Office 123, Susan Hayash, Managing Attorney. _____ Before Ritchie, Adlin, and Coggins, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: Sergii Voloshyn (“Applicant”) seeks registration on the Principal Register of the mark (with MINO voluntarily disclaimed) for the following goods: hair lotions comprising minoxidin, in International Class 3; and medicinal hair growth preparations comprising minoxidin; all the aforesaid goods intended for the scalp and hair care, for hair growth stimulation, for hair growth restoration, Serial No. 79216270 - 2 - against baldness, against hair loss, in International Class 5;1 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 goods identified in the application, so resembles the mark MINO PLUS (in standard characters)2 for, inter alia, “non-medicinal hair growth preparations,” in International Class 3, and “medicinal hair growth preparations,” in International Class 5, on the Principal Register as to be likely to cause confusion, mistake, or to deceive. When the refusal was made final, Applicant appealed and requested reconsideration.3 After the Examining Attorney denied the request for reconsideration, the appeal was resumed. We affirm the refusal to register. I. Evidentiary Issue Applicant attached five exhibits to his brief (9 TTABVUE 15-36) which he previously made of record with his third Request for Reconsideration (6 TTABVUE 12-33). This was duplicative, unnecessary, and distracting; and the Board 1 Application Serial No. 79216270, filed on March 21, 2017, under Section 66(a) of the Trademark Act, 15 U.S.C. § 1141(f), requesting an extension of protection of International Registration No. 1242844. The application contains the following description of the mark: “The mark consists of the wording ‘MINO MAX’; located between the wording is an image of a raindrop with a silhouette of a man’s face located inside.” Color is not claimed as a feature of the mark. 2 Registration No. 4406635, issued September 24, 2013; Section 8 affidavit accepted, Section 15 affidavit acknowledged. 3 Applicant filed three requests for reconsideration on the same day. Because the second and third requests contain the same evidence, we will discuss the evidence in only the first and second requests. Serial No. 79216270 - 3 - discourages this practice. See In re Michalko, 110 USPQ2d 1949, 1950-51 (TTAB 2014); In re Thor Tech Inc., 85 USPQ2d 1474, 1475 n.3 (TTAB 2007). II. Likelihood of Confusion Our determination under Section 2(d) is based on 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); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key considerations are the similarities between the marks and the similarities between the goods. See 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.”). A. Identity of the Goods, Channels of Trade, and Classes of Customers We first consider the second and third du Pont factors, the similarity of the goods, channels of trade, and classes of customers. We must make our determinations under these factors based on the goods as they are identified in the application and cited registration. See Stone Lion Capital Partners, LP 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. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Serial No. 79216270 - 4 - Registrant’s goods include “non-medicinal hair growth preparations” and “medicinal hair growth preparations.” Applicant’s goods include “hair lotions comprising minoxidin” and “medicinal hair growth preparations comprising minoxidin.” Where the cited registration describes the goods broadly, and there is no limitation as to their nature, type, channels of trade, or class of purchasers, it is presumed that the registration encompasses all goods of the type described, that they move in all normal channels of trade, and that they are available to all classes of purchasers. See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167, 1173 (Fed. Cir. 2013); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Because Registrant’s identified medicinal and non-medicinal hair growth preparations are described broadly, the identification must be read to encompass Applicant’s narrower lotions and medicinal hair growth preparations comprising minoxidin.4 See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s narrowly identified ‘residential and commercial furniture.”’). Therefore, the goods in the cited registration overlap with the goods in the application, and they are legally identical in part. Given the legal identity of the goods in part, we must presume that the channels of trade and classes of purchasers are also the same. In re Fat Boys Water Sports LLC, 4 As Applicant explains, “Applicant’s goods are hair growth preparations comprising minoxidin (or its analogue minoxidil).” Brief, p. 9 (9 TTABVUE 10). Serial No. 79216270 - 5 - 118 USPQ2d 1511, 1518-19 (TTAB 2016); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in determining likelihood of confusion). Moreover, it appears that Applicant concedes that the goods in part, channels of trade, and classes of customers are identical because he does not address these issues in his brief. Based on the in- part legal identity of the goods set forth in the application and the cited registration, and the presumptive identical trade channels and classes of purchasers, the second and third du Pont factors weigh heavily in favor of likelihood of confusion. B. Purported Weakness of the Common Term MINO The fifth du Pont factor is the fame or strength of the prior mark, and the sixth factor is the number and nature of similar marks in use for similar goods or services. du Pont, 177 USPQ at 567. Because the strength of the cited MINO PLUS mark will inform our comparison of the marks, we address Applicant’s claim that “the word MINO in the applied-for and registered marks is weak because it is descriptive and diluted.”5 In determining the strength of the mark in the cited registration, we consider both its inherent strength, based on the nature of the mark itself, and its commercial strength, based on the marketplace recognition value of the mark. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”); Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); J. THOMAS MCCARTHY, 2 MCCARTHY ON 5 Brief, p. 3 (9 TTABVUE 4). Serial No. 79216270 - 6 - TRADEMARKS AND UNFAIR COMPETITION § 11:83 (5th ed., Sept. 2019 update) (“The first enquiry focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”). For purposes of analyzing likelihood of confusion, a mark’s renown may “var[y] along a spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (internal quotations omitted). The proper standard is the mark’s “renown within a specific product market,” id., and “is determined from the viewpoint of consumers of like products,” id. at 1735, not from the viewpoint of the general public. In support of his position that MINO is a weak term, Applicant points to extracts from two scientific articles which abbreviate “minoxidil” as “mino,” a discussion thread from an online chat in which one user uses the term “mino,” three third-party registrations for marks which begin with MINO, and screenshots from websites showing use of the term MINO in connection with hair growth products.6 1. Inherent or conceptual strength In order to determine the inherent or conceptual strength of the MINO term in cited mark, we evaluate its intrinsic nature, that is, where it lies along the generic- descriptive-suggestive-arbitrary-fanciful continuum of words. Word marks that are 6 Brief, p. 4 (9 TTABVUE 4); 1st Req. for Recon. (4 TTABVUE 4-8); 2nd Req. for Recon. (5 TTABVUE 12-33). Serial No. 79216270 - 7 - arbitrary, fanciful, or suggestive are “held to be inherently distinctive.” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000); see also, Chippendales USA, 96 USPQ2d at 1684 (“In general, trademarks are assessed according to a scale formulated by Judge Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ 759 (2d Cir. 1976), which evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’ ‘suggestive,’ ‘descriptive,’ or ‘generic.”’). Applicant’s evidence reveals that minoxidil is a chemical used to stimulate hair growth.7 MINO comprises the first four letters of the chemical minoxidil. The two scientific articles abbreviate “minoxidil’” as MINO in the same manner that they abbreviate other large terms for ease of reading and reduction of text characters.8 The journal abbreviations of “minoxidil’” suggest that MINO is a useful abbreviation for “minoxidil.” We find the term MINO to be suggestive of minoxidil. The discussion thread from an online chat in which one user uses the term “mino,” appears to be for users in Singapore. Applicant contends the one reference to “mino” 7 5 TTABVUE 12. We take judicial notice of the definition and pronunciation of “minoxidil”: “\mə-ˈnäk-sə-ˌdil\ a peripheral vasodilator . . . used topically . . . to promote hair regrowth in male-pattern baldness.” MERRIAM-WEBSTER, www.merriam-webster.com/dictionary/ minoxidil (accessed September 29, 2019). The Board may take judicial notice of dictionary definitions, including online dictionaries that exist in printed format. Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018); In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016). 8 For example, they also abbreviate ortho phosphoric acid (OPA), dihydrotestosterone (DHT), finasteride (FINA), papilla cells (PCs), root sheath fibroblasts (RSFs), epidermal growth factor (EGF), and hydrocortisone (HC). 5 TTABVUE 12, 17. Serial No. 79216270 - 8 - is for a “Kirkland” brand product “which is Costco’s house mark;”9 however, there is no evidence to support that contention or whether that one Kirkland product is available to consumers in the United States. See In re Florists’ Transworld Delivery Inc., 106 USPQ2d 1784, 1786 (TTAB 2013) (a website located outside the United States may have probative value depending on the circumstances, including whether the consuming public in the United States is likely to have been exposed to the foreign website). 2. Commercial strength There is no evidence regarding the commercial strength of the registered mark, as is typical with ex parte appeals in which the owner of a cited registration is not a party. 3. The number and nature of similar marks in use on similar goods The Federal Circuit has held that evidence of extensive registration and use of a term by others for similar goods can be “powerful” evidence of the term’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). If the evidence establishes that the consuming public is exposed to widespread third-party use of similar marks for similar goods, it “is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.” Palm Bay Imps., Inc. v. Veuve 9 Brief, p. 5 (9 TTABVUE 6). Serial No. 79216270 - 9 - Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005). The three registrations on which Applicant relies are MINOVAL for topical solutions for treating hair loss (Reg. No. 3340455), MINOXIDILMAX for hair growth stimulants containing minoxidil (Reg. No. 4665867), and MINOXICARE for shampoo (Reg. No. 5012463).10 Although each registered mark begins with MINO-, the MINOXIDILMAX and MINOXICARE marks are of slightly less probative value because they are likely to be perceived as beginning with MINOXIDIL- or MINOXI- rather than just MINO-, due to the inclusion of additional letters consistent with the normal spelling and pronunciation of “minoxidil” in the United States. Although these “third-party registrations are not evidence of third-party use of the registered marks in the marketplace, for purposes of the sixth du Pont factor,” In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009)), they nonetheless show some suggestiveness in the use of the prefix MINO-, and, to that extent, somewhat limit the scope of protection. See Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976) (even if “there is no evidence of actual use” of “third- party registrations,” such registrations “may be given some weight to show the meaning of a mark in the same way that dictionaries are used”). Turning to Applicant’s evidence of actual use of the term MINO, at least four of the five screenshots attached to the first Request for Reconsideration appear to be from foreign websites. While there is no indication that the first website 10 5 TTABVUE 29-33. Serial No. 79216270 - 10 - (eclassyfashion.com) is foreign, the text on the box for the MINOVAL product shown appears to be in French.11 Similarly, the fifth website (vavendu.com) appears completely in Turkish with a product price in Turkish lira.12 The second (minox- ve.co.uk), third (minoxproducts.ue), and fourth (makeup.com.au) websites all include foreign country or territory top-level domains.13 The MINO QILIB 5 product website (clickoncare.com) attached to the second Request for Reconsideration is from India, and shows the product offered in Indian rupees.14 The Federal Circuit has explained that “[i]nformation originating on foreign websites or in foreign news publications that are accessible to the United States public may be relevant to discern United States consumer impression of a proposed mark.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007). However, the court cautioned that “[t]he probative value, if any, of foreign information sources must be evaluated on a case-by-case basis.” Id. The foreign evidence discussed in Bayer involved news articles retrieved from the NEXIS database, not screenshots of websites for hair products. Id. With the exception of the webpage which shows the price of the MINOVAL product in dollars, there is no indication that the webpages or the products therein are directed or available to consumers in the United States; therefore, those foreign webpages are less probative of commercial weakness in the United States. See, e.g., In re Canine Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1595-96 (TTAB 2018) (website 11 4 TTABVUE 4. 12 4 TTABVUE 8. 13 4 TTABVUE 5-7. 14 5 TTABVUE 18-22. Serial No. 79216270 - 11 - evidence of foreign use of caviar in pet food not probative of norms of pet owners in the U.S.); In re Florists’ Transworld Delivery Inc., 106 USPQ2d at 1786. Furthermore, these screenshots of foreign sites show the marks MINOX-ve, MINOX, MINOKSIL, and MINOXIL and are of slightly lesser probative value because they do not reveal use of simply MINO-, but instead of MINOX- or MINOKS- formative marks for goods which presumably contain minoxidil or minoxidin. Like two of the third-party registered marks above, consumers are likely to perceive the “X” or “KS” consonant as an integral part of the initial portion of these marks rather than just the MINO- portion when used on goods containing minoxidil, due to the normal spelling and pronunciation of “minoxidil” in the United States. Applicant’s evidence is much less extensive than that in prior cases that have found weakness based on third-party marks. See, e.g., In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., Slip Op. No. 18–2236 (Fed. Cir. Sept. 13, 2019) (four third-party registrations and no third-party uses were “a far cry from the large quantum of evidence of third-party use and third-party registrations that was held to be significant” in Jack Wolfskin and Juice Generation).15 Cf. TPI Holdings, Inc. v. TrailerTrader.com, LLC, 126 USPQ2d 1409, 1427-28 n.92 (TTAB 2018) (67 third-party registrations and numerous uses of TRADER-formative marks showed that the formative was weak); In re i.am.symbolic, 123 USPQ2d 1744, 1751 15 In Jack Wolfskin, there were at least 14 third-party registrations and uses of paw print marks that showed the weakness of that design element in the opposer’s mark, 116 USPQ2d at 1136 n.2, while in Juice Generation, there were approximately 26 third-party registrations and uses of marks containing the words “Peace” and “Love” that showed the weakness of those words in the opposer’s marks. 115 USPQ2d at 1673 n.1. Serial No. 79216270 - 12 - (Fed. Cir. 2017) (where the conflicting marks were identical, evidence of the coexistence of the cited registered mark with two third-party registrations of the same mark for the same or similar goods “falls short of the ‘ubiquitous’ or ‘considerable’ use of the mark components present in” Jack Wolfskin and Juice Generation). Applicant’s evidence demonstrates some suggestiveness in the use of the term MINO which somewhat limits the scope of protection. However, MINO is not so weak that confusion is unlikely as between similar marks for identical goods. Even weak marks are entitled to protection against registration of similar marks. See In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982). The cited mark MINO PLUS falls only slightly down from the middle “of the spectrum from very strong to very weak,” Joseph Phelps Vineyards, 122 USPQ2d at 1734, and we accord it a slightly narrower scope of protection. The du Pont factors assessing the degree of weakness or strength of the registered weigh only slightly in favor of finding that there is no likelihood of confusion. C. Similarity or Dissimilarity of the Marks We next consider the first du Pont likelihood of confusion factor, which focuses on “‘the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.’” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ at 567). “The proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a Serial No. 79216270 - 13 - connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1468 (TTAB 1988). The focus is on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049 (TTAB 2014); In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009). Here, the average purchaser of Applicant’s goods includes ordinary consumers who wish to remedy or prevent hair loss. Our analysis is not predicated on dissection of the involved marks. Stone Lion, 110 USPQ2d at 1161. Rather, we are obliged to consider the marks in their entireties. Id.; see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”). Nonetheless, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. Stone Lion, 110 USPQ2d at 1161. For instance, as the Federal Circuit has observed, “[t]hat a particular feature is descriptive or generic with respect to the involved goods or services is one commonly accepted rationale for giving less weight to a portion of a mark . . . .” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Serial No. 79216270 - 14 - Applicant’s mark is , and Registrant’s mark is MINO PLUS. Each mark contains MINO as the first term. In word-and-design composite marks such as Applicant’s, “the words are normally accorded greater weight because they are likely to make a greater impression upon purchasers, to be remembered by them, and to be used by them to request the goods.” In re Aquitaine Wine USA, LLC, 118 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra, 101 USPQ2d at 1908.) “This makes sense given that the literal component of brand names likely will appear alone when used in text and will be spoken when requested by consumers.” Viterra, 101 USPQ2d at 1911. The MINO MAX word portion of Applicant’s mark has the same structure, the same number of words and syllables, and the same first word as Registrant’s MINO PLUS mark. The first term MINO would likely be pronounced the same in each mark. The identity of the marks’ first term is significant because consumers typically notice the lead word. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692 (finding similarity between VEUVE ROYALE and two VEUVE CLICQUOT marks in part because VEUVE “remains a ‘prominent feature’ as the first word in the mark and the first word to appear on the label”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (finding similarity between CENTURY 21 and CENTURY LIFE OF AMERICA in part because “consumers must first notice th[e] identical lead word”). Indeed, in view of the marks’ structural similarity, the lead word MINO is the dominant portion of each mark and is likely to make the greatest impression on Serial No. 79216270 - 15 - consumers. In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018). Applicant argues that MINO is not the dominant term because it is weak and descriptive,16 and in the third Request for Reconsideration Applicant offered a voluntary disclaimer of MINO.17 As discussed above, we do not find MINO to be particularly weak or descriptive; instead, it is suggestive of the minoxidin ingredient in Applicant’s goods. Although Applicant provided an unnecessary disclaimer of MINO, such a voluntary disclaimer has no legal effect on the issue of likelihood of confusion. See In re Nat’l Data Corp., 224 USPQ at 751 (“[T]actical strategy” of a voluntary disclaimer “cannot affect the scope of protection to which another’s mark is entitled.”). In addition to having the identical sound and appearance,18 the MINO portion of Applicant’s mark has the same meaning and commercial impression as the MINO portion of Registrant’s mark, i.e., referring to and suggesting minoxidin or minoxidil. 16 Brief, pp. 9-10 (9 TTABVUE 10-11). 17 6 TTABVUE 2. 18 Because the cited mark is registered in standard characters, the words MINO PLUS could be displayed in any font style, size, or color, including that used by Applicant. See Viterra, 101 USPQ2d at 1909; Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000). We accordingly consider the cited mark to be potentially legally identical in stylization to the stylized wording in Applicant’s mark. Viterra, 101 USPQ2d at 1910; Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (“[T]he argument concerning a difference in type style is not viable where one party asserts rights in no particular display.”). Serial No. 79216270 - 16 - Similarly, the MAX and PLUS portions of the marks have a similar meaning and create a similar commercial impression. MAX means, inter alia, “maximum”19 and “to the greatest extent possible,”20 while PLUS means “[a]dded or extra” and “[i]ncreased to a further degree or number.”21 When these terms are combined with MINO, the overall meanings and commercial impressions are similar. We have not ignored the design element of Applicant’s mark which is sandwiched between the word elements and upon which a small portion of each word is superimposed. The words appear to be overlaid on the design element, making it slightly subordinate in appearance. At any rate, as explained above, the words are normally accorded greater weight. See Aquitaine Wine USA, 118 USPQ2d at 1184. Here, the marks have similarities and differences, but we find that when the marks are considered in their entireties, the similarities outweigh the differences; they are more similar than dissimilar. Accordingly, this du Pont factor also weighs in favor of finding that there is a likelihood of confusion. D. Conditions of Sale The Examining Attorney notes that both Applicant’s and Registrant’s goods include medicinal hair growth preparations, and thus “the doctrine of greater care” should be applied when analyzing whether a likelihood of confusion exists.22 This 19 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (www.ahdictionary .com), October 23, 2017 Office Action at TSDR 15. 20 MERRIAM-WEBSTER (www.merriam-webster.com), June 4, 2018 Office Action at TSDR 15. 21 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (www.ahdictionary .com), October 23, 2017 Office Action at TSDR 18. 22 Brief, unnumbered p. 6 (11 TTABVUE 7). Serial No. 79216270 - 17 - doctrine reduces the possibility of harmful confusion by lowering the threshold for a finding of likelihood of confusion when pharmaceuticals are involved. Applicant did not reply to this argument. Both Applicant’s and Registrant’s identification of goods list “medicinal hair growth preparations.” We keep in mind the obvious necessity to avoid confusion when it comes to ethical pharmaceuticals and that greater care should be taken in the use and registration of trademarks to assure that no harmful confusion results. See, e.g., Glenwood Labs., Inc. v. Am. Home Prods. Corp., 455 F.2d 1384, 173 USPQ 19 (CCPA 1972); Blansett Pharmacal Co. Inc. v. Carmrick Labs. Inc., 25 USPQ2d 1473 (TTAB 1992); and Schering Corp. v. Alza Corp., 207 USPQ 504 (TTAB 1980). See also J. THOMAS MCCARTHY, 4 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 23:32 (5th ed., Sept. 2019 update). In this case, we must assume that the customers for the medicinal hair growth preparations would be ordinary consumers, having imperfect recollection and unable to compare the marks on a side-by-side basis. Without entering into the debate over the correctness of a “doctrine of greater care,” adopting this approach would certainly tilt the balance of the fourth du Pont factor more steeply in favor of the position taken by the Examining Attorney. However, the record before us is not developed well enough for us to decidedly apply the doctrine to medicinal hair growth preparations. In view thereof, this factor is neutral. E. Summary of Likelihood of Confusion We have found the goods, channels of trade, and classes of customers to be identical; the cited mark has not been shown to be particularly weak, although the Serial No. 79216270 - 18 - term MINO is suggestive of the goods; the marks have similarities in appearance, sound, meaning, and commercial impression, and are on the whole more similar than dissimilar. The goods include medicinal products, but we decline to apply the doctrine of greater care on this record. On balance, we find confusion likely. III. Decision The refusal to register Applicant’s mark is affirmed.