The USPTO refused to register the proposed mark
Section 2(d) The likelihood of confusion analysis was straightforward. The Board found the goods to be in-part legally identical "inasmuch as Registrant's broadly-worded 'medicines for human purposes for . . . the treatment, mitigation and prevention of diseases and disorders' could include Applicant's more specialized 'generic prescription drugs, approved by the
As to the marks, ALEMBIC is the dominant term in each: it is the first word in each mark and the other words are disclaimed. The design element in the cited mark is subordinate to the literal portion. The Board found the marks to be "very similar, particularly in connotation and commercial impression."
The Board agreed with applicant that consumer will exercise a high degree of care in purchasing the involved goods. However, the lack of evidence of actual confusion had little probative value in this ex parte context, and in any case there was insufficient proof regarding sales of the products to determine whether there had been a reasonable opportunity for confusion to occur.
And so, the Board affirmed the Section 2(d) refusal.
Failure-to-Function and Nonuse: Applicant submitted three specimens of use. In addition to packaging, applicant submitted a "printer's proof" of a label. Not only is a "printer's proof" not an acceptable specimen, but the term
The Board agreed with Examining Attorney
Applicant also submitted two webpages, but those were not proper specimens for applicant's goods because they "contain no ... information 'calculated to consummate a sale,' but rather were merely advertising and therefore unacceptable to show use of applicant's mark in commerce.
Conclusion: And so, the Board affirmed all three refusals.
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MA 02210
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