Wednesday, June 17, 2015

TTAB Test: Are ACCURASCIENCE and ACURA PHARMACEUTICALS Confusable for Research Services?

The USPTO refused registration of the mark ACCURASCIENCE, in standard character and design form (below), for "DNA analysis services for scientific research purposes," finding the mark likely to cause confusion with the registered mark ACURA PHARMACEUTICALS for "pharmaceutical research and development services" [PHARMACEUTICALS disclaimed]. Third-party registration and website evidence showed that the services are related, but what about the similarity of the marks? And wouldn't the purchasers be sophisticated? How do you think this came out? In re AccuraScience LLC, Serial Nos. 86158955 and 86158968 (June 15, 2015) [not precedential].

Based on a dictionary definition of "accurate," the Board found that ACURA in the registered mark "suggests a desired characteristic of the services, namely, that they produce accurate results." But even if the Board found the registered mark to be inherently somewhat weak, it is still entitled to its registration presumptions and must be protected against confusion.

As mentioned, the Board found that DNA sequencing and analysis is related to pharmaceutical research and development services. The evidence suggested that common customers would be genetic research centers, pharmaceutical companies, and others within the biotechnology and biopharma fields.

Turning to the marks, the marks are obviously similar in their respective first portions, and there was no evidence that ACCURA and ACURA would be pronounced differently. Both marks evoke the meaning of "accuracy." Applicant argued that ACURA would bring to mind certain vehicles made by Honda, but it provided no evidence to support that assertion.

Nonetheless, when the marks are viewed as a whole, they are much less similar. Moreover, "ACCURASCIENCE connotes accurate science or accuracy in scientific results whereas ACURA PHARMACEUTICALS connotes accurate pharmaceutical research or formulation." Although these connotations are similar, they suggest different results. [They seem quite similar to me - ed.]. The Board concluded that the marks are "only somewhat more similar than dissimilar in appearance, sound, meaning, and overall commercial impression." Applicant's design mark "differs more strongly from the marks in the cited registration and also more strongly connotes accurate science." In sum, the Board found that the first du Pont "weighs only somewhat in favor of a likelihood of confusion."

The consumers of the involved services are not ordinary consumers. The primary purchasers are companies involved in the pharmaceutical and biotech industries. "By definition, all of these customers would be quite sophisticated." Although it is often observed that customers who are sophisticated in a particular field are not necessarily immune from source confusion, here the highly technical and sophisticated nature of the services led the Board to find that purchasers would exercise a high degree of care and would likely notice the differences between the marks.

The Board therefore reversed the refusal to register.

Read comments and post your comment here

TTABlog note: Not often does the sophistication argument make a difference. I think the marks are too similar, and even sophisticated consumers could be confused.

Text Copyright John L. Welch 2015.


At 7:59 AM, Anonymous Gene Bolmarcich said...

EXCELLENT decision!! Maybe the Board is finally coming into reality. No sophisticated consumer could be confused.

At 10:34 AM, Anonymous Anonymous said...

I always hated the response to the sophistication argument that sophistication in the goods/services does not mean sophistication in trademarks. Actually, that's exactly what it means - otherwise, it would not be a du Pont factor, now would it? You can't just cross sophistication off of the list of factors with a broad sweeping conclusion unsupported by any evidence that the statement is true.

At 11:01 AM, Blogger J.Mike said...

John, do you have any statistics on the sophistication argument?

At 11:09 AM, Anonymous Anonymous said...

Isn't it likely that consumers would assume an affiliation between Accura Science and Acura Pharmaceuticals given the close relationship between the services? Bayer Pharmaceuticals is affiliated with Bayer CropScience and Bayer MaterialScience. Could Accura now prevent Acura from using "Acura" with "Science"? I'm surprised by this decision.


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