TTAB Test: Are HOLAIRA and ALAIR Confusable for Lung-Related Medical Devices?
Boston Scientific opposed an application to register the mark HOLAIRA for "medical devices for treating obstructive lung diseases; medical apparatus and instruments for treating obstructive lung diseases," claiming a likelihood of confusion with the registered mark ALAIR for "medical therapeutic devices for use in the treatment of pulmonary diseases, namely, catheters, probes, generators, bronchoscopes, and electrodes." The goods are identical or overlapping, a factor that "weighs heavily" in favor of opposer. But what about the marks? How do you think this came out? Boston Scientific Corp. and Asthmatx, Inc. v. Holaira, Inc., Opposition No. 91215699 (October 6, 2016) [not precedential].
The Board asserted that "[t]he only difference between the marks is the initial syllable of each, and the addition of an “a” at the end of Applicant’s mark." [Those are pretty big differences, aren't they? - ed.]. It found that the marks have a "strong visual similarity." [Really? - ed.]
Although there is no correct pronunciation of a mark that is not a recognized word, the Board found that "consumers are likely to vocalize the words in a similar manner, given that the stressed, middle portion in each mark is identical." [So there is a correct pronunciation? - ed.].
Moreover, the marks evoke "highly similar connotations:" they suggest "a sense of one's 'breathing in all the air' or getting 'air to the whole lung.'" According to the Board, "[t]he word “all” (evoked by the 'al' of Opposers’ mark) and the word 'whole' (evoked by the letter string 'hol' in Applicant's mark) are established synonyms." And the Board concluded that we find that the marks create "similar overall commercial impressions when used on goods used to treat pulmonary or respiratory disease."
And so, balancing the relevant du Pont factors, the Board found confusion likely and it sustained the opposition.
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TTABlog comment: How did you do? I think this case was a lot closer than the Board made it seem. Maybe the Board got it wrong.
Text Copyright John L. Welch 2016.