“There can be confusion because the marks of related products moving to the same class of customers in the same trading channel are very similar.”
The US Court of Appeals for the Federal Circuit (CAFC) on Thursday upheld a Trademark Trial and Appeal Board (TTAB) decision confirming examiners’ refusal to register the OXIPURITY trademark for chemical products. The court agreed with her TTAB opinion that OXIUPURITY was likely to be confused with the previously registered trademark OXYPURE.
Oxiteno SA Indústria e Comércio has applied for OXIPURITY registration of dozens of chemical products “for use in the pharmaceutical, veterinary, flavor and fragrance and cosmetic sectors”. Although the products were not identical to the products covered by FMC Corporation’s OXYPURE registration, the CAFC concluded that the examiner determined that “hydrogen peroxide (a product to which FMC’s OXYPURE mark applies) and Oxiteno’s coverage with the OXIPURITY mark. one or more of the chemicals for which the
The TTAB searched the mark based on the factors shown below. EI DuPont DeNemours & Co. (DuPont) found the trademarks to be similar in sound, meaning, and commercial impression under the first factor, and found the trademarks “different but related” under the second factor. I discovered that Relying on third-party websites and Oxiteno’s own brochures, the Board has determined that chemicals covered by the OXIPURITY application and FMC’s hydrogen peroxide are often manufactured by a single source and come from a variety of sources. We found it sold to the industry and that Oxiteno offers other hydrogen peroxide products in a different way. Brand names for industries such as pharmaceuticals and cosmetics.
Under the fourth element, the Commission notes that the relevant consumers of goods covered by both marks are scientists, and therefore sophisticated, but “[t]Confusion can arise because the marks of related products moving to the same class of customers in the same trading channel are very similar. ”
Oxiteno appealed to the CAFC, arguing that the scientists, chemists and manufacturers who purchase its products are not the same scientists, chemists and manufacturers who purchase FMC’s products. However, the CAFC said this argument was insufficient. “It is not necessary to show that the consumers are the same in order to establish the possibility of confusion,” the court wrote. “Buyers may be different, but due to market conditions and trading channels, buyers may be familiar with both products, resulting in overlapping knowledge.”
The CAFC said there is substantial evidence that at least some of the consumers are the same, and even if some of the same institution purchased both products, the purchasers were from completely different sectors. Oxiteno’s allegations that it was a thing were not supported by the CAFC, he said. record.
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Author: Bill Perry
