Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
`PTO Form 1957 (Rev 10/2011)
`
`OMB No. 0651-0050 (Exp 09/20/2020)
`
`Response to Office Action
`
`Input Field
`
`SERIAL NUMBER
`
`LAW OFFICE ASSIGNED
`
`MARK SECTION
`
`MARK
`
`LITERAL ELEMENT
`
`STANDARD CHARACTERS
`
`USPTO-GENERATED IMAGE
`
`MARK STATEMENT
`
`ARGUMENT(S)
`
`The table below presents the data as entered.
`
`Entered
`
`87776293
`
`LAW OFFICE 125
`
`https://tmng-al.uspto.gov/resting2/api/img/87776293/large
`
`STROKE SCREEN. EVERY PATIENT, EVERY TIME.
`
`YES
`
`YES
`
`The mark consists of standard characters, without claim to any particular font style,
`size or color.
`
`I.         
`
`PRELIMINARY RESPONSE TO ADVISORY ISSUED IN THE OFFICE ACTION
`
`The Office Action mailed on May 20, 2018 set forth an advisory about a pending U.S. Trademark Application Serial No. 87705915.  This is a
`preliminary response to this issue.  It is understood from the Office Action that another non-final office action may be issued in the event the
`Trademark Examining Attorney chooses to suspend prosecution in view of this pending application.
`
`The at-issue identified pending intent to use application is for the mark "ISCREENSTROKE" used in conjunction with “Medical screening
`services in the field of Retina and Brain to detect Stroke and Alzheimer's” .   There is no likelihood of confusion with such goods and services
`as compared to the mark of the present application, which is intended to be used in connection with medical devices.  
`
`The facts in each case vary and the weight to be given each relevant du Pont factor may be different in light of the varying circumstances;
`therefore, there can be no rule that certain goods or services are per se related, such that there must be a likelihood of confusion from the use of
`similar marks in relation thereto. See, e.g., In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009) (regarding alcoholic
`beverages); Info. Res. Inc. v. X*Press Info. Servs., 6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer hardware and software); Hi-
`Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171–72 (TTAB 1987) (regarding food products); In re Quadram Corp., 228
`USPQ 863, 865 (TTAB 1985) (regarding computer hardware and software); In re British Bulldog, Ltd., 224 USPQ 854, 855-56 (TTAB 1984)
`(regarding clothing); see also M2 Software, Inc. v. M2 Commc'ns, Inc., 450 F.3d 1378, 1383, 78 USPQ2d 1944, 1947–48 (Fed. Cir. 2006)
`(noting that relatedness between software-related goods may not be presumed merely because the goods are delivered in the same media
`format and that, instead, a subject-matter-based mode of analysis is appropriate). See also  TMEP § 1207.01(a)(iv). 
`
`There are a number of factors to be weighed for assessing a likelihood of confusion.  TMEP § 1207.01.  None of these factors support a refusal
`of the present application.
`
`THERE IS NO SIMILARITY IN THE AT-ISSUE MARKS
`A.       
`The sight, sound, and meaning of the at-issue marks are significantly different.  “Iscreenstroke” sounds nothing like that at-issue mark,
`           
`looks nothing like that mark, and has a different meaning from the at-issue mark.
`
` 
`

`

`TRADE CHANNELS ARE UNRELATED.
`B.       
`           
`The channels of trade for the services of pending U.S. Trademark Application Serial No. 87705915 are drastically different than the
`channels of trade for medical devices of the present application.  Further the consumers in these markets are relatively sophisticated and do
`not make impulse purchases.  For instance, medical professionals and hospitals may purchase medical devices.  These are sophisticated
`consumers.  In contrast, the at-issue services of pending U.S. Trademark Application Serial No. 87705915 are directed to a different class of
`consumers – consumers of brain and retina screening services (e.g. patients).
`C.       
`SALES CONDITIONS SHOW THERE IS NO LIKELIHOOD OF CONFUSION
`           
`Sales conditions for the goods and services also show that there is no likelihood of confusion.  The conditions under which buyers to
`whom sales are made for both medical devices and consumers of brain and retina screening services are not impulsive.  Sophisticated
`purchasing decisions have to be made to purchase such services and goods.  These purchasing decisions are made by sophisticated, well
`educated personnel.    This shows there is no likelihood of confusion.  See, e.g., In re N.A.D., Inc., 754 F.2d 996, 999-1000, 224 USPQ 969, 971
`(Fed. Cir. 1985) (concluding that, because only sophisticated purchasers exercising great care would purchase the relevant goods, there would
`be no likelihood of confusion merely because of the similarity between the marks NARCO and NARKOMED); Primrose Ret. Cmtys., LLC v.
`Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (finding that, "even in the case of the least sophisticated purchaser, a
`decision as important as choosing a senior living community will be made with some thought and research, even when made hastily"); In re
`Homeland Vinyl Prods., Inc., 81 USPQ2d 1378, 1380, 1383 (TTAB 2006) .
`D.       
`GOODS ARE UNRELATED
`
`The amendments made to the listing of goods presented herein help show that the goods of the present application are unrelated to the
`           
`services of pending U.S. Trademark Application Serial No. 87705915.
`
`As explained in TMEP § 1207.01(a)(ii), “ when the relatedness of the goods and services is not evident, well known, or generally
`           
`recognized, "something more" than the mere fact that the goods and services are used together must be shown. In re St. Helena Hosp., 774
`F.3d at 754, 113 USPQ2d at 1087 (finding that substantial evidence did not support relatedness of hospital-based residential weight and
`lifestyle program and printed materials dealing with physical activity and fitness). Therefore, when comparing services such as "restaurant
`services" with less apparently related goods such as "beer," or "cooking classes" with "kitchen towels," "something more"—beyond the fact
`that the goods are used in the provision of the services—must be shown to indicate that consumers would understand such services and goods
`to emanate from the same source.” The goods in the identified potentially conflicting marks are not sufficiently related to the medical devices
`and are directed to a different class of consumers (e.g. patients as compared to medical service providers). 
`
`E.       
`
`NO EVIDENCE OF REALTED GOODS OR SERVICES
`
`The Office Action failed to provide any evidence of related goods or services.  Such evidence is necessary to support a refusal.  TMEP
`           
`§ 1207.01(a)(vi).  But, no such evidence exists.  As can be appreciated from the above, there is no relatedness in the goods or services.
`
`For the at least the above reasons, it is respectfully requested that a suspension of prosecution not occur.  Instead, it is respectfully
`           
`requested that the present application be allowed over U.S. Trademark Application No. 87705915.  As provided in the above, preliminary
`remarks and evidence provided herewith, there is no likelihood of confusion.
`
`II.       
`
`RESPONSE TO SEC. 2(d) REFUSAL ISSUED IN THE OFFICE ACTION
`
`The Office Action asserted a Section 2(d) Refusal based on US Trademark Registration Nos. 5,443,095 and 4,683,613 for
`           
`“Exceptional Care . . . ” and “Best Outcome . . .”.
`
`            
`
`As noted above, the facts in each case vary and the weight to be given each relevant du Pont factor may be different in light of the
`varying circumstances; therefore, there can be no rule that certain goods or services are per se related, such that there must be a likelihood of
`confusion from the use of similar marks in relation thereto. See, e.g., In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009)
`(regarding alcoholic beverages); Info. Res. Inc. v. X*Press Info. Servs., 6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer hardware
`and software); Hi-Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171–72 (TTAB 1987) (regarding food products); In re
`Quadram Corp., 228 USPQ 863, 865 (TTAB 1985) (regarding computer hardware and software); In re British Bulldog, Ltd., 224 USPQ 854,
`855-56 (TTAB 1984) (regarding clothing); see also M2 Software, Inc. v. M2 Commc'ns, Inc., 450 F.3d 1378, 1383, 78 USPQ2d 1944,
`1947–48 (Fed. Cir. 2006) (noting that relatedness between software-related goods may not be presumed merely because the goods are
`delivered in the same media format and that, instead, a subject-matter-based mode of analysis is appropriate). See also  TMEP §
`1207.01(a)(iv). 
`
` 
` 
`

`

`There are a number of factors to be weighed for assessing a likelihood of confusion.  TMEP § 1207.01.  None of these factors support a refusal
`of the present application.
`
`THERE IS NO SIMILARITY IN THE AT-ISSUE MARKS
`A.       
`The sight, sound, and meaning of the at-issue marks are significantly different.  The “Best Outcome” and “Exceptional Care” terms
`           
`of the at-issue registrations are entirely unrelated to the at-issue mark “Stroke Screen . . .”. The mark of the present application sounds
`nothing like that at-issue registered marks, looks nothing like those marks, and has a different meaning from the at-issue registered marks. 
`The commercial impression of the mark of the present application is significantly unique as compared to the impressions provided by the at-
`issue registrations. 
`
`

`

`TRADE CHANNELS ARE UNRELATED.
`B.       
`           
`The channels of trade for the services of pending application as compared to the identified registered marks are drastically different.
`The consumers in the medical device market for the goods of the pending application are relatively sophisticated and do not make impulse
`purchases (e.g. doctors, hospitals, emergency service providers).  For instance, medical professionals and hospitals may purchase medical
`devices.  These are sophisticated consumers.  In contrast, the at-issue services of the at-issue registrations are directed to a different class of
`consumers – consumers of health services (e.g. the patients, not the entities that provide services to patients). See e.g. attached evidence
`showing that the at-issue registered marks are directed to patients for healthcare services unrelated to the at-issue goods of the pending
`application).
`C.       
`SALES CONDITIONS SHOW THERE IS NO LIKELIHOOD OF CONFUSION
`           
`Sales conditions for the goods and services also show that there is no likelihood of confusion.  The conditions under which buyers to
`whom sales are made for both medical devices and consumers of the healthcare services of the at-issue registered marks are not impulsive. 
`Sophisticated purchasing decisions have to be made to purchase such services and goods.  These purchasing decisions are made by
`sophisticated, well educated personnel.    This shows there is no likelihood of confusion.  See, e.g., In re N.A.D., Inc., 754 F.2d 996, 999-1000,
`224 USPQ 969, 971 (Fed. Cir. 1985) (concluding that, because only sophisticated purchasers exercising great care would purchase the relevant
`goods, there would be no likelihood of confusion merely because of the similarity between the marks NARCO and NARKOMED); Primrose
`Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (finding that, "even in the case of the least
`sophisticated purchaser, a decision as important as choosing a senior living community will be made with some thought and research, even
`when made hastily"); In re Homeland Vinyl Prods., Inc., 81 USPQ2d 1378, 1380, 1383 (TTAB 2006) .
`D.       
`GOODS ARE UNRELATED
`
`The amendments made to the listing of goods presented herein help show that the goods of the present application are unrelated to the
`           
`services of the at-issue registrations.
`
`As explained in TMEP § 1207.01(a)(ii), “ when the relatedness of the goods and services is not evident, well known, or generally
`           
`recognized, "something more" than the mere fact that the goods and services are used together must be shown. In re St. Helena Hosp., 774
`F.3d at 754, 113 USPQ2d at 1087 (finding that substantial evidence did not support relatedness of hospital-based residential weight and
`lifestyle program and printed materials dealing with physical activity and fitness). Therefore, when comparing services such as "restaurant
`services" with less apparently related goods such as "beer," or "cooking classes" with "kitchen towels," "something more"—beyond the fact
`that the goods are used in the provision of the services—must be shown to indicate that consumers would understand such services and goods
`to emanate from the same source.” The services in the identified potentially conflicting registered marks (e.g. healthcare services) are not
`sufficiently related to the medical devices and are directed to a different class of consumers (e.g. patients as compared to medical service
`providers). 
`
`E.       
`
`NO EVIDENCE OF REALTED GOODS OR SERVICES
`
`The Office Action failed to provide any evidence of related goods or services.  Such evidence is necessary to support a refusal.  TMEP
`           
`§ 1207.01(a)(vi).  But, no such evidence exists.  As can be appreciated from the above, there is no relatedness in the goods or services.
`
`For the at least the above reasons, it is respectfully requested that a suspension of prosecution not occur.  Instead, it is respectfully
`           
`requested that the present application be allowed over U.S. Trademark Registration Nos. 5,443,095 and 4,683,613.   As can be appreciated from
`the above   and evidence provided herewith, there is no likelihood of confusion.
`
`EVIDENCE SECTION
`
`        EVIDENCE FILE NAME(S)
`
`       ORIGINAL PDF FILE
`
`       CONVERTED PDF FILE(S)
`       (16 pages)
`
`evi_148641620-20181019171948558154_._Website_evidence_for_response.pdf
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0002.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0003.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0004.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0005.JPG
`
` 
` 
`       
`       
`       
`

`

`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0006.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0007.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0008.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0009.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0010.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0011.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0012.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0013.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0014.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0015.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0016.JPG
`
`\\TICRS\EXPORT17\IMAGEOUT17\877\762\87776293\xml5\ROA0017.JPG
`
`DESCRIPTION OF EVIDENCE FILE
`
`The evidence is website materials showing how the registered marks of US TM Reg.
`Nos. 5443095 and 4683613 are used
`
`GOODS AND/OR SERVICES SECTION (class deleted)
`
`GOODS AND/OR SERVICES SECTION (class added) Original Class (035)
`
`INTERNATIONAL CLASS
`
`DESCRIPTION
`
`010
`
`Medical devices, namely, stroke screen testing devices; medical devices, namely, neurological condition testing devices and stroke condition
`testing devices consisting of electrodes and an electrical current transmission device; Diagnostic devices, namely, stroke diagnostic devices for
`detecting a patient having undergone a stroke and neurological condition testing devices for detecting a patient having undergone a
`neurological injury
`
`FILING BASIS
`
`Section 1(b)
`
`ADDITIONAL STATEMENTS SECTION
`
`DISCLAIMER
`
`MISCELLANEOUS STATEMENT
`
`No claim is made to the exclusive right to use STROKE SCREEN apart from the
`mark as shown.
`
`Below is a summary of the responses to the four issues raised in the Office Action
`mailed on May 20, 2018 (the issues being - 1. Amendment to the listing of goods, 2.
`a disclaimer; 3. Advisory on an identified pending application, and 4. a Section 2(d)
`Refusal). This summary is provided to help clarify the amendment made herein to
`allow the Trademark Examining Attorney to more easily review the present
`amendment. 1. Amendment to Listing Of Goods. The listing of goods has been
`amended herein, which is believed to fully resolve the issues raised in the Office
`Action mailed on May 20, 2018 concerning the listing of goods and services. As
`amended, the listing of goods is for international class 10 for "Medical devices,
`namely, stroke screen testing devices; medical devices, namely, neurological
`condition testing devices and stroke condition testing devices consisting of
`electrodes and an electrical current transmission device; Diagnostic devices, namely,
`stroke diagnostic devices for detecting a patient having undergone a stroke and
`neurological condition testing devices for detecting a patient having undergone a
`neurological injury". 2. Disclaimer. The disclaimer requested in the Office Action
`has also been provided herewith in this Amendment. 3. Advisory On Prior Pending
`Application. Argument has been presented herein to address the Section 2(d) refusal
`and prior pending application found advisory. It is respectfully requested that
`suspension is not warranted as there is no likelihood of confusion with the identified
`pending application- U.S. Application Serial No. 87705915. 4. Section 2(d) Refusal.
`Argument is also presented herein concerning the Section 2(d) refusal issued in the
`
`       
`       
`       
`       
`       
`       
`       
`       
`       
`       
`       
`       
`

`

`Office Action based on US Registration Nos. 5443095 and 4684613. As can be
`appreciated from the argument presented herein, there is no likelihood of confusion
`that exists. The marks are not similar in sight, sound or meaning. For example,
`"STROKE SCREEN" within the mark is significant and substantially different in
`commercial impression to "Exceptional Care" and "Best Outcome" of the at-issue
`identified registrations. As another example, the relatively sophisticated consumers
`of the medical devices of the at-issue application are unlikely to be confused in
`conjunction with the identified marks. Conclusion The undersigned is available at
`the Trademark Examining Attorney's convenience to try and help resolve any
`remaining issues to help expedite examination of the present application. To the
`extent there are any remaining issues or questions concerning the amendment
`submitted herewith, the Trademark Examining Attorney should not hesitate to
`contact the undersigned at 412-392-2121 or via email at ralph.fischer@bipc.com.
`
`SIGNATURE SECTION
`
`RESPONSE SIGNATURE
`
`SIGNATORY'S NAME
`
`SIGNATORY'S POSITION
`
`SIGNATORY'S PHONE NUMBER
`
`DATE SIGNED
`
`AUTHORIZED SIGNATORY
`
`FILING INFORMATION SECTION
`
`SUBMIT DATE
`
`TEAS STAMP
`
`/Ralph G. Fischer/
`
`Ralph G. Fischer
`
`Attorney of record (PA bar member)
`
`412-392-2121
`
`10/19/2018
`
`YES
`
`Fri Oct 19 17:38:41 EDT 2018
`
`USPTO/ROA-XXX.XX.XX.XX-20
`181019173841667830-877762
`93-610de1f523f262f6720b99
`9a2d0527b12161b413c502885
`2b52817522ce5881919-N/A-N
`/A-20181019171948558154
`
`Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
`PTO Form 1957 (Rev 10/2011)
`
`OMB No. 0651-0050 (Exp 09/20/2020)
`
`To the Commissioner for Trademarks:
`
`Response to Office Action
`
`Application serial no. 87776293 STROKE SCREEN. EVERY PATIENT, EVERY TIME.(Standard Characters, see https://tmng-
`al.uspto.gov/resting2/api/img/87776293/large) has been amended as follows:
`
`ARGUMENT(S)
`In response to the substantive refusal(s), please note the following:
`
`I.         
`
`PRELIMINARY RESPONSE TO ADVISORY ISSUED IN THE OFFICE ACTION
`
`The Office Action mailed on May 20, 2018 set forth an advisory about a pending U.S. Trademark Application Serial No. 87705915.  This is a
`preliminary response to this issue.  It is understood from the Office Action that another non-final office action may be issued in the event the
`Trademark Examining Attorney chooses to suspend prosecution in view of this pending application.
`
`The at-issue identified pending intent to use application is for the mark "ISCREENSTROKE" used in conjunction with “Medical screening
`
` 
`

`

`services in the field of Retina and Brain to detect Stroke and Alzheimer's” .   There is no likelihood of confusion with such goods and services as
`compared to the mark of the present application, which is intended to be used in connection with medical devices.  
`
`The facts in each case vary and the weight to be given each relevant du Pont factor may be different in light of the varying circumstances;
`therefore, there can be no rule that certain goods or services are per se related, such that there must be a likelihood of confusion from the use
`of similar marks in relation thereto. See, e.g., In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009) (regarding alcoholic
`beverages); Info. Res. Inc. v. X*Press Info. Servs., 6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer hardware and software); Hi-
`Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171–72 (TTAB 1987) (regarding food products); In re Quadram Corp., 228
`USPQ 863, 865 (TTAB 1985) (regarding computer hardware and software); In re British Bulldog, Ltd., 224 USPQ 854, 855-56 (TTAB 1984)
`(regarding clothing); see also M2 Software, Inc. v. M2 Commc'ns, Inc., 450 F.3d 1378, 1383, 78 USPQ2d 1944, 1947–48 (Fed. Cir. 2006)
`(noting that relatedness between software-related goods may not be presumed merely because the goods are delivered in the same media format
`and that, instead, a subject-matter-based mode of analysis is appropriate). See also  TMEP § 1207.01(a)(iv). 
`
`There are a number of factors to be weighed for assessing a likelihood of confusion.  TMEP § 1207.01.  None of these factors support a refusal of
`the present application.
`
`THERE IS NO SIMILARITY IN THE AT-ISSUE MARKS
`A.       
`The sight, sound, and meaning of the at-issue marks are significantly different.  “Iscreenstroke” sounds nothing like that at-issue mark,
`           
`looks nothing like that mark, and has a different meaning from the at-issue mark.
`
`

`

`TRADE CHANNELS ARE UNRELATED.
`B.       
`           
`The channels of trade for the services of pending U.S. Trademark Application Serial No. 87705915 are drastically different than the
`channels of trade for medical devices of the present application.  Further the consumers in these markets are relatively sophisticated and do not
`make impulse purchases.  For instance, medical professionals and hospitals may purchase medical devices.  These are sophisticated consumers. 
`In contrast, the at-issue services of pending U.S. Trademark Application Serial No. 87705915 are directed to a different class of consumers
`– consumers of brain and retina screening services (e.g. patients).
`C.       
`SALES CONDITIONS SHOW THERE IS NO LIKELIHOOD OF CONFUSION
`           
`Sales conditions for the goods and services also show that there is no likelihood of confusion.  The conditions under which
`buyers to whom sales are made for both medical devices and consumers of brain and retina screening services are not impulsive.  Sophisticated
`purchasing decisions have to be made to purchase such services and goods.  These purchasing decisions are made by sophisticated, well
`educated personnel.    This shows there is no likelihood of confusion.  See, e.g., In re N.A.D., Inc., 754 F.2d 996, 999-1000, 224 USPQ
`969, 971 (Fed. Cir. 1985) (concluding that, because only sophisticated purchasers exercising great care would purchase the relevant
`goods, there would be no likelihood of confusion merely because of the similarity between the marks NARCO and NARKOMED); Primrose
`Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (finding that, "even in the case of the least
`sophisticated purchaser, a decision as important as choosing a senior living community will be made with some thought and research, even
`when made hastily"); In re Homeland Vinyl Prods., Inc., 81 USPQ2d 1378, 1380, 1383 (TTAB 2006) .
`D.       
`GOODS ARE UNRELATED
`
`The amendments made to the listing of goods presented herein help show that the goods of the present application are unrelated to the
`           
`services of pending U.S. Trademark Application Serial No. 87705915.
`
`As explained in TMEP § 1207.01(a)(ii), “ when the relatedness of the goods and services is not evident, well known, or generally
`           
`recognized, "something more" than the mere fact that the goods and services are used together must be shown. In re St. Helena Hosp., 774 F.3d
`at 754, 113 USPQ2d at 1087 (finding that substantial evidence did not support relatedness of hospital-based residential weight and lifestyle
`program and printed materials dealing with physical activity and fitness). Therefore, when comparing services such as "restaurant services" with
`less apparently related goods such as "beer," or "cooking classes" with "kitchen towels," "something more"—beyond the fact that the goods are
`used in the provision of the services—must be shown to indicate that consumers would understand such services and goods to emanate from the
`same source.” The goods in the identified potentially conflicting marks are not sufficiently related to the medical devices and are directed to a
`different class of consumers (e.g. patients as compared to medical service providers). 
`
`E.       
`
`NO EVIDENCE OF REALTED GOODS OR SERVICES
`
`The Office Action failed to provide any evidence of related goods or services.  Such evidence is necessary to support a refusal.  TMEP §
`           
`1207.01(a)(vi).  But, no such evidence exists.  As can be appreciated from the above, there is no relatedness in the goods or services.
`
`For the at least the above reasons, it is respectfully requested that a suspension of prosecution not occur.  Instead, it is respectfully
`           
`requested that the present application be allowed over U.S. Trademark Application No. 87705915.  As provided in the above, preliminary
`remarks and evidence provided herewith, there is no likelihood of confusion.
`
`II.       
`
`RESPONSE TO SEC. 2(d) REFUSAL ISSUED IN THE OFFICE ACTION
`
`           
`
`The Office Action asserted a Section 2(d) Refusal based on US Trademark Registration Nos. 5,443,095 and 4,683,613 for “Exceptional
`
`Care . . . ” and “Best Outcome . . .”.             
`
`As noted above, the facts in each case vary and the weight to be given each relevant du Pont factor may be different in light of the
`varying circumstances; therefore, there can be no rule that certain goods or services are per se related, such that there must be a likelihood of
`confusion from the use of similar marks in relation thereto. See, e.g., In re White Rock Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB
`2009) (regarding alcoholic beverages); Info. Res. Inc. v. X*Press Info. Servs., 6 USPQ2d 1034, 1038 (TTAB 1988) (regarding computer
`hardware and software); Hi-Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169, 1171–72 (TTAB 1987) (regarding food
`products); In re Quadram Corp., 228 USPQ 863, 865 (TTAB 1985) (regarding computer hardware and software); In re British Bulldog, Ltd.,
`224 USPQ 854, 855-56 (TTAB 1984) (regarding clothing); see also M2 Software, Inc. v. M2 Commc'ns, Inc., 450 F.3d 1378, 1383, 78
`USPQ2d 1944, 1947–48 (Fed. Cir. 2006) (noting that relatedness between software-related goods may not be presumed merely because the
`goods are delivered in the same media format and that, instead, a subject-matter-based mode of analysis is appropriate). See also  TMEP §
`1207.01(a)(iv). 
`
` 
` 
`

`

`There are a number of factors to be weighed for assessing a likelihood of confusion.  TMEP § 1207.01.  None of these factors support a refusal of
`the present application.
`
`THERE IS NO SIMILARITY IN THE AT-ISSUE MARKS
`A.       
`The sight, sound, and meaning of the at-issue marks are significantly different.  The “Best Outcome” and “Exceptional Care” terms of
`           
`the at-issue registrations are entirely unrelated to the at-issue mark “Stroke Screen . . .”. The mark of the present application sounds nothing like
`that at-issue registered marks, looks nothing like those marks, and has a different meaning from the at-issue registered marks.  The commercial
`impression of the mark of the present application is significantly unique as compared to the impressions provided by the at-issue registrations. 
`
`

`

`TRADE CHANNELS ARE UNRELATED.
`B.       
`           
`The channels of trade for the services of pending application as compared to the identified registered marks are drastically different. The
`consumers in the medical device market for the goods of the pending application are relatively sophisticated and do not make impulse purchases
`(e.g. doctors, hospitals, emergency service providers).  For instance, medical professionals and hospitals may purchase medical devices.  These
`are sophisticated consumers.  In contrast, the at-issue services of the at-issue registrations are directed to a different class of consumers –
`consumers of health services (e.g. the patients, not the entities that provide services to patients). See e.g. attached evidence showing that the at-
`issue registered marks are directed to patients for healthcare services unrelated to the at-issue goods of the pending application).
`C.       
`SALES CONDITIONS SHOW THERE IS NO LIKELIHOOD OF CONFUSION
`           
`Sales conditions for the goods and services also show that there is no likelihood of confusion.  The conditions under which
`buyers to whom sales are made for both medical devices and consumers of the healthcare services of the at-issue registered marks
`are not impulsive.  Sophisticated purchasing decisions have to be made to purchase such services and goods.  These purchasing decisions are
`made by sophisticated, well educated personnel.    This shows there is no likelihood of confusion.  See, e.g., In re N.A.D., Inc., 754 F.2d
`996, 999-1000, 224 USPQ 969, 971 (Fed. Cir. 1985) (concluding that, because only sophisticated purchasers exercising great care
`would purchase the relevant goods, there would be no likelihood of confusion merely because of the similarity between the marks
`NARCO and NARKOMED); Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1039 (TTAB 2016) (finding
`that, "even in the case of the least sophisticated purchaser, a decision as important as choosing a senior living community will be made with
`some thought and research, even when made hastily"); In re Homeland Vinyl Prods., Inc., 81 USPQ2d 1378, 1380, 1383 (TTAB 2006) .
`D.       
`GOODS ARE UNRELATED
`
`The amendments made to the listing of goods presented herein help show that the goods of the present application are unrelated to the
`           
`services of the at-issue registrations.
`
`As explained in TMEP § 1207.01(a)(ii), “ when the relatedness of the goods and services is not evident, well known, or generally
`           
`recognized, "something more" than the mere fact that the goods and services are used together must be shown. In re St. Helena Hosp., 774 F.3d
`at 754, 113 USPQ2d at 1087 (finding that substantial evidence did not support relatedness of hospital-based residential weight and lifestyle
`program and printed materials dealing with physical activity and fitness). Therefore, when comparing services such as "restaurant services" with
`less apparently related goods such as "beer," or "cooking classes" with "kitchen towels," "something more"—beyond the fact that the goods are
`used in the provision of the services—must be shown to indicate that consumers would understand such services and goods to emanate from the
`same source.” The services in the identified potentially conflicting registered marks (e.g. healthcare services) are not sufficiently related to the
`medical devices and are directed to a different class of consumers (e.g. patients as compared to medical service providers). 
`
`E.       
`
`NO EVIDENCE OF REALTED GOODS OR SERVICES
`
`The Office Action failed to provide any evidence of related goods or services.  Such evidence is necessary to support a refusal.  TMEP §
`           
`1207.01(a)(vi).  But, no such evidence exists.  As can be appreciated from the above, there is no relatedness in the goods or services.
`
`For the at least the above reasons, it is respectfully requested that a suspension of prosecution not occur.  Instead, it is respectfully
`           
`requested that the present application be allowed over U.S. Trademark Registration Nos. 5,443,095 and 4,683,613.   As can