Thursday, March 16, 2023

CAFC Affirms TTAB: OXIPURITY Confusable with OXYPURE for Different Chemical Products

In a nonprecedential opinion, the CAFC affirmed the Board's decision upholding a Section 2(d) refusal to register the mark OXIPURITY for various chemical products, finding confusion likely with the registered mark OXYPURE for "hydrogen peroxide intended for use in the treatment of public and private potable water systems and supplies." The applicant argued, without success, that the scientists, chemists, and manufacturers purchasing its products in the pharmaceutical, veterinary, flavor and fragrance, or cosmetic fields are not the same scientists, chemists, and manufacturers purchasing [Registrant] FMC’s hydrogen peroxide for potable water systems." In re Oxiteno S.A. Industria e Comercio, 2023 U.S.P.Q.2d 286 (Fed. Cir. 2023) [not precedential].

The Board found the involved goods to be "different but related." Third-party websites “establish that [Oxiteno’s] chemicals and [FMC’s] hydrogen are commonly manufactured by a single source, and are sold directly to a variety of industries, including the waste treatment, pharmaceutical, biotech, and personal care industries.” The Board also relied on the registrant's promotional brochure, which stated that registrant offered other hydrogen peroxide products, albeit under different brand names, to industries such as the drugs/cosmetics industry. 

Although the involved consumers were sophisticated, the court concluded that “[t]he strong similarity of the marks for related goods, which move in the same channels of trade to the same classes of customers renders confusion likely.” It noted that "it is not necessary to show that the consumers are the same to establish a likelihood of confusion. Though the buyers may be different, they may have overlapping knowledge due to market conditions or channels of trade such that purchasers are familiar with both products." [But if the buyers of one party's product are not buyers of the other party's product, what's the harm from this confusion? - ed.]

The court noted that "there is record evidence that there is consumer overlap, i.e., to some extent the same customers would purchase both Applicant Oxiteno’s and Registrant FMC’s goods, since "[n]early every business has a need for either purification of water for the manufacturing process, or to clean a waste stream/effluent”: i.e, every business is a potential purchaser of hydrogen peroxide for water purification purposes. 

Moreover, registrant's brochure states that it sells hydrogen peroxide products, albeit under different trade names, to the food processing/packaging and drugs/cosmetics industries. And so, the court ruled that "substantial evidence supports the conclusion that at least some of the consumers would be the same."

Read comments and post your comment here.

TTABlogger comment: Not the most convincing opinion I've ever read.

Text Copyright John L. Welch 2023.


At 7:42 AM, Blogger Gene Bolmarcich, Esq. said...

More frustration to add to the mix when I cannot tell a client what the chances of winning an appeal are. I always thought the easiest cases where those where there was no overlap in purchasers. Not.

At 9:46 AM, Anonymous Anonymous said...

I've won cases I should have lost and lost cases I should have won. Let's face it: most of the judges on the court are extremely well-versed in patent law, but have significantly varying degrees of trademark experience/expertise.


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