Wednesday, February 13, 2019

TTAB Dismisses 2(d) Opposition to "M" Mark for Medication Costing Software

The Board dismissed this Section 2(d) opposition to registration of the mark shown below left, for software "for providing information to medical personnel and patients regarding the cost of a patient’s prescription medication taking into account that patient’s insurance coverage," finding that opposer had failed to prove a likelihood of confusion with the two registered marks shown below right, for various medical services and publications. H. Lee Moffitt Cancer Center and Research Institute, Inc. v. Milligram, Inc., Opposition No. 91228243 (February 11, 2018) [not precedential] (Opinion by Judge Marc A. Bergsman).

Goods and Services: Opposer Moffitt failed to prove that its goods and services are related to applicant's software. Although "intuitively the 'evaluation and testing of drug and treatment effectiveness relating to cancer and other diseases' should have a connection to pharmacy services," applicant’s description of goods and services does not involve pharmacy services. There was no testimony or evidence "that other treatment or research centers provide information regarding the cost of prescription medications taking into account that patient’s insurance coverage."

As to trade channels, the Board noted that "some patients in need of cancer treatment will need prescription medications and will want a means for determining the price for the prescription medications. Accordingly, Opposer’s goods and services will be offered to some of the same consumers as Applicant’s goods and services."

Strength of Opposer's Marks: Opposer is a well-known center for cancer research, but opposer failed to show that consumers associate the stylized letter “M” design mark with Opposer or that the "M" is a well-known trademark. Moreover, opposer uses its "M" mark primarily adjacent to the phrase MOFFITT CANCER CENTER. Thus opposer failed to show that its "M" mark is commercially stronger than any other mark.

The Board considered various third-party "M" marks in the medical field and concluded that "companies create use logos incorporating the first letter of their trade name. Presumably, consumers encountering logos incorporating the first letter of an entity’s trade name are likely to associate the logos with the trade names and, that without evidence that consumers identify the letter logos as standalone marks, such marks should not entitled to a broad scope of protection." As to opposer's stand alone "M" mark, the Board placed in the middle of the spectrum between weak and very strong.

The Marks: The Board found that the involved marks are not similar, "[g]iven the conditions under which or the degree of care consumers will naturally exercise in selecting goods and services in the field of health care, cancer protection, prevention, detection and treatment."

Conclusion: Although some consumers may encounter the marks of the parties, because the marks are not similar and the goods and services are not related, the Board found no likelihood of confusion.

Read comments and post your comment here.

TTABlog comment:  Well, this was not the most exciting case I've ever read, but there you have it.

Text Copyright John L. Welch 2019.


At 12:03 PM, Blogger John L. Welch said...

A former TTAB judge just pointed out to me that the word "not" seems to be missing in the last line on page 34.


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