From: Capshaw, Daniel
`
`Sent: 2/12/2007 10:04:09 AM
`
`To: TTAB EFiling
`
`CC:
`
`Subject: TRADEMARK APPLICATION NO. 78465875 - NEXAVER - EHRGT159US
`
`
`
`*************************************************
`Attachment Information:
`Count: 1
`Files: 78465875.doc
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
` SERIAL NO:
`
`78/465875
`
`
`
`
`
`EXAMINING ATTORNEY'S APPEAL BRIEF
`
`
`The applicant, Nexense Ltd., has appealed the examining attorney’s refusal to
`
`register the mark NEXAVER in standard character form under §2(d) of the Trademark
`
`Act of 1946 (as amended) (hereinafter “the Trademark Act”), 15 U.S.C. §1052(d). This
`
`refusal is the only issue on appeal.
`
`
`
`
`
`FACTS
`
`On August 11, 2004 applicant applied to register the mark NEXAVER in standard
`
`characters based on its bona fide intention to use the mark in commerce, §1(b) of the
`
`Trademark Act, and claiming priority under §44(d) for “Electronic sensors and medical
`
`apparatus, instruments and equipment including same” in international class 13. On
`
`November 10, 2004 applicant filed an preliminary amendment properly changing the
`
`
`
`
`
`
`
`
`
`
`*78465875*
`BEFORE THE
`TRADEMARK TRIAL
`AND APPEAL BOARD
`ON APPEAL
`
`
`
`Please provide in all correspondence:
`
`1. Filing date, serial number, mark and
` applicant's name.
`2. Date of this Office Action.
`3. Examining Attorney's name and
` Law Office number.
`4. Your telephone number and e-mail
`address.
`
`
`
`
` APPLICANT:
`
`Nexense Ltd.
`
`
` CORRESPONDENT ADDRESS:
` WARREN A. SKLAR
` RENNER, OTTO, BOISSELLE & SKLAR
` 19TH FLOOR, 1621 EUCLID AVENUE
` CLEVELAND, OH 44115
`
`
`NEXAVER
`
` MARK:
`
` CORRESPONDENT’S REFERENCE/DOCKET NO: EHRGT159US
`
` CORRESPONDENT EMAIL ADDRESS:
` wasklar@rennerotto.com
`
`
`
`

`
`class from 13 to 10. In an office action dated March 15, 2005 the examining attorney
`
`refused registration based on a likelihood of confusion, Section 2(d) of the Trademark
`
`Act, with U.S. Registration No. 2745627 and required amendment of the identification of
`
`goods.
`
`On August 9, 2005 applicant responded to the office action arguing against a
`
`likelihood of confusion with the cited registration, amending the description of goods
`
`and perfecting its section 44(e) basis by submitting its foreign registration. On
`
`September 1, 2005 the examining attorney issued a non-final office action, maintaining
`
`the refusal to register under Section 2(d) of the Trademark Act and requiring amendment
`
`as the description of goods in the application was beyond the scope of the description in
`
`the foreign registration. On March 1, 20061 applicant responded to the office action
`
`arguing against a likelihood of confusion and amending the description of goods. On
`
`April 14, 2006 the examining attorney made final the refusal to register under Section
`
`2(d) of the Trademark Act and accepted the amended description of goods. On
`
`September 22, 2006 applicant filed a request for reconsideration and on October 13, 2006
`
`a Notice of Appeal. On November 2, 2006 the examining attorney issued an action
`
`denying the request for reconsideration and maintaining the refusal under Section 2(d) of
`
`the Trademark Act. On December 21, 2006 applicant filed its appeal brief supporting its
`
`argument that the refusal under Section 2(d) of the Trademark Act should be reversed and
`
`the mark should be cleared for registration on the Principal Register.
`
`ISSUE ON APPEAL
`
`Whether the applicant’s use of the mark NEXAVER in standard characters for
`
`“Medical devices, namely respiration sensors, pulse sensors, blood pressure sensors”
`
`1 On January 18, 2006 applicant filed a response containing duplicative foreign registration information.
`
`

`
`creates a likelihood of confusion with Registration No. 2745627 for the mark
`
`NEXAVAR in typed form for “pharmaceutical preparations for the treatment of
`
`cardiovascular diseases, central nervous system diseases, cancer, respiratory and
`
`infectious diseases, diagnostics reagents adapted for medical use.”
`
`
`
`LIKELIHOOD OF CONFUSION ANALYSIS
`
`The examining attorney must analyze each case in two steps to determine whether
`
`there is a likelihood of confusion. First, the marks are compared for similarities in
`
`appearance, sound, connotation and commercial impression. In re E .I. du Pont de
`
`Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). Second, the goods or
`
`services are compared to determine whether they are similar or related or whether the
`
`activities surrounding their marketing are such that confusion as to origin is likely. In re
`
`National Novice Hockey League, Inc., 222 USPQ 638 (TTAB 1984); In re August Storck
`
`KG, 218 USPQ 823 (TTAB 1983); In re Int’l Tel. and Tel. Corp., 197 USPQ 910 (TTAB
`
`1978); Guardian Prods. Co., v. Scott Paper Co., 200 USPQ 738 (TTAB 1978); TMEP
`
`§§1207.01 et seq.
`
`
`
`Trademark Act Section 2(d) bars registration where an applied-for mark so
`
`resembles a registered mark that it is likely, when applied to the goods, to cause
`
`confusion, mistake or to deceive the potential consumer as to the source of the goods.
`
`TMEP §1207.01. The Court in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
`
`177 USPQ 563 (C.C.P.A. 1973), listed the principal factors to consider in determining
`
`whether there is a likelihood of confusion. Among these factors are the similarity of the
`
`marks as to appearance, sound, meaning and commercial impression, and the relatedness
`
`

`
`of the goods. The overriding concern is to prevent buyer confusion as to the source of the
`
`goods. In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed. Cir.
`
`1993). Therefore, any doubt as to the existence of a likelihood of confusion must be
`
`resolved in favor of the registrant. In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6
`
`USPQ2d 1025 (Fed. Cir. 1988); Lone Star Mfg. Co. v. Bill Beasley, Inc., 498 F.2d 906,
`
`182 USPQ 368 (C.C.P.A. 1974).
`
`
`
`ARGUMENT
`
`THE MARKS ARE HIGHLY SIMILAR
`
`The marks at issue are NEXAVER (applicant) and NEXAVAR (registrant). The
`
`1.
`
`
`marks only differ in a single soft sounding vowel. The marks are essentially phonetic
`
`equivalents and are thus similar sounding. Similarity in sound alone may be sufficient to
`
`support a finding of likelihood of confusion. RE/MAX of America, Inc. v. Realty Mart,
`
`Inc., 207 USPQ 960, 964 (TTAB 1980); Molenaar, Inc. v. Happy Toys Inc., 188 USPQ
`
`469 (TTAB 1975); In re Cresco Mfg. Co., 138 USPQ 401 (TTAB 1963); TMEP
`
`§1207.01(b)(iv). Therefore, the marks are highly similar.
`
`Applicant argues that the marks are distinct in sound because of the difference in
`
`the final soft sounding vowel in the marks, VAR and VER. However, there is no correct
`
`pronunciation of a trademark. Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ
`
`461 (TTAB 1985); In re Great Lakes Canning, Inc., 227 USPQ 483 (TTAB 1985); In re
`
`Teradata Corp., 223 USPQ 361, 362 (TTAB 1984); In re Mack, 197 USPQ 755 (TTAB
`
`1977); TMEP §1207.01(b)(iv). The marks in question could clearly be pronounced the
`
`same. Further, the single vowel difference in the marks at most creates only a slight
`
`difference in sound. Slight differences in the sound of similar marks will not avoid a
`
`

`
`likelihood of confusion. In re Energy Telecomm. & Electrical Ass’n, 222 USPQ 350
`
`(TTAB 1983).
`
`Applicant also argues that the marks are different in meaning. Applicant reasons
`
`that its mark NEXAVER is a combination of applicant’s name NEXENSE and the word
`
`SAVER and therefore, that the connotation of applicant’s mark is that “Applicant’s
`
`sensors save lives (e.g. NEX plus SAVER produces NEXAVER).” Applicant’s brief at
`
`7. This argument can best be characterized as conjecture. Consumers viewing
`
`applicant’s mark may have no knowledge of applicant’s name. Further, the wording
`
`SAVER does not appear in the mark. The mark contains the wording NEX and AVER.
`
`Moreover, any connotation which the applicant claims is lost when the mark is spoken.
`
`Applicant argues that the registered mark has a different connotation in that the
`
`NEX portion in that mark gives the impression of the word NEXT. However, insofar as
`
`consumers may view the NEX portion in the registered mark as meaning NEXT
`
`consumers may also view the NEX portion of the applicant’s mark as meaning NEXT.
`
`Conversely, insofar as consumers may view the NEX portion in the Applicant’s mark as
`
`identifying the company NEXENSE consumers may also view the NEX portion of the
`
`registered mark as identifying the company NEXENSE.
`
`Applicant argues that its connotation is supported by TMEP Section
`
`1207.01(b)(v) which outlines the general principal that the meaning or connotation of a
`
`mark must be determined in relation to the named goods or services. The rule, however,
`
`concerns the meaning of a mark in relation to the goods, not in relation to the name of a
`
`company owning a mark. Here, the applicants goods are “medical devices, namely
`
`respiration sensors, pulse sensors, blood pressure sensors.” The wording NEX has no
`
`

`
`relation to these goods. Further, the wording AVER or XAVER has no relation to the
`
`goods. Applicant argues that the goods are used to save lives and therefore consumers
`
`will understand the AVER or XAVER portion to mean SAVER. This reasoning is
`
`tenuous and would require multiple leaps in reasoning. First a consumer would have to
`
`dissect the mark by removing the NE or NEX portion. Next, the consumer must translate
`
`the AVER or XAVER portion to the wording SAVER. Finally, to arrive at applicant’s
`
`conclusion a consumer would have to identify an overall purpose of applicant’s goods as
`
`“saving lives” and therefore conclude that the wording means SAVER. The leaps and
`
`jumps required to accept applicant’s conclusion simply go beyond what is outlined in
`
`TMEP Section 1207.01(b)(v).
`
`Finally, the examining attorney must resolve any doubt as to the issue of
`
`likelihood of confusion in favor of the registrant and against the applicant who has a legal
`
`duty to select a mark which is totally dissimilar to trademarks already being used.
`
`Burroughs Wellcome Co. v. Warner-Lambert Co., 203 USPQ 191 (TTAB 1979). Here,
`
`the applicant has failed to select a mark which is dissimilar to that of the registrant.
`
`Additionally, doubt clearly exists as to the issue of likelihood of confusion. Thus, refusal
`
`to register the mark should be sustained.
`
`
`
`2.
`
`THE GOODS ARE RELATED
`
`The goods of the parties are related as they are medical goods which may be used
`
`in treating identical ailments simultaneously. Applicant’s goods are “Medical devices,
`
`namely respiration sensors, pulse sensors, blood pressure sensors.” The registrant’s
`
`goods include drugs for treating cardiovascular and respiratory diseases. Those who are
`
`

`
`taking drugs for a respiratory or cardiovascular ailments may also include a respiration
`
`sensor or pulse and blood pressure sensor as part of their treatment. Thus, the use and
`
`market for the goods are related.
`
`Further, it is common for producers of pharmaceutical preparations designed to
`
`treat a specific disease to also provide medical devices used in the treatment of the same
`
`disease under a single mark. Attached to the Final office action are a number of third
`
`party registrations supporting this fact. A sample of the third party registrations of record
`
`include the following:
`
`• Registration 1941393 MENTOR for Class 5 “preparations for urological
`disorders” as well as Class 10 “urological devices, namely, corporal dilators and
`stents.” Owned by Mentor corporation.
`
` •
`
` •
`
` •
`
` Registration 2639224 BREATHING NEW LIFE INTO RESPIRATORY CARE
`for class 5 goods including “pharmaceutical preparations and formulations for the
`treatment of respiratory disorders” and “bronchodilator solutions for inhalation
`for the treatment of lung and other respiratory system conditions” as well as class
`10 goods including “Medical apparatus and devices, namely, finger control
`adapter for medical nebulizers, nebulizer sets comprised of a nebulizer, a tee, a
`mouthpiece, a flexible tube, and a two-meter connecting tube sold as a unit for
`medical use.” Owned by Dey L. P.
`
` Registration 1902350 KAZ for Class 5 “pharmaceutical preparations, namely,
`inhalant decongestants” as well as class 10 goods including “electric vaporizers
`for the inhalation of medicaments, and electyrically activated heating pads for
`medical purposes.” Owned by KAZ, Incorporated.
`
` Registration 1748079 ALLERGAN for Class 5 pharmaceutical formulations “for
`the treatment of minor ocular inflammations and allergic conditions” as well as
`Class 10 medical apparatus “for use in ocular testing, diagnosis and surgical
`purposes.” Owned by Allergen Inc.
`
` •
`
` Registration 1882719 MAGNA-CAP for Class 5 “pharmaceutical preparations
`used in crani-facial surgery and post operative treatment” as well as class 10
`“medical apparatus for use in the field of crania-facial surgery.” Owned by
`Technovent Limited Corporation.
`
`• Registration 2154528 MATHYS for Class 5 “pharmaceutical preparations for the
`treatment of bone defects” as well as class 10 goods including bone drills, bone
`
`
`
`

`
`cutters, sutures, and surgical instruments for use in orthopedic surgery. Owned by
`Mathys AG Bettlach.
`
` Registration 2219893 STAAR for Class 5 pharmaceutical preparations for
`medical use in performing surgery of the eye as well as class 10 goods including
`surgical products for use in performing eye surgery. Owned by Staar Surgical
`Company.
`
` •
`
`• Registration 2470191 BRIARA for Class 10 “pharmaceutical preparation for the
`treatment of diabetes” as well as class 10 “medical apparatus, namely, a device
`that can be used to inhale insulin.” Owned by Pfizer Inc.
`
`• Registration 2626773 NEURON THERAPEUTICS,
`for Class 5
`INC.
`“pharmaceutical preparations used in the treatment of stroke and other diseases
`and injuries of the central nervous system and ischemia” as well as class 10
`“medical devices, namely, lumbar catheters and drug conditioning devices used to
`administer fluids to the spinal cord and brain in the treatment of stroke and other
`diseases and injuries of the central nervous system and ischemia.” Owned by
`Neuron Therapeutics, Inc.
`
`• Registration 2505787 EXPRESS-MED for Class 5 “pharmaceutical preparations,
`namely, respiratory medications and insulin” as well as class 10 medical and
`healthcare
`supplies, namely,
`respiratory medication delivery devices,
`glucometers,
`lancets, blood hemoglobin
`testing supplies, namely, blood
`hemoglobin testing kits. Owned by Ecpress-Med, Inc.
`
`• Registration 2917595 (design only) for Class 5 pharmaceutical preparations for
`use in photodynamic therapy for a variety of diseases and conditions as well as
`class 10 devices used in photodynamic therapy, namely, fluorescent fiber optic
`diffusers and balloon catheters. Owned by QLT Inc.
`
`• Registration 2084189 MALLINCKRODT for Class 5 goods including “full line
`of pharmaceutical preparations” as well as class 10 goods including a full line of
`temperature probes, temperature monitoring instruments, respiratory therapy
`apparatus, catheters, blood analyzing apparatus, physiologic monitors for
`monitoring vital signs. Owned Mallinckrodt TMH.
`
`• Registration 2843548 AERX ULTRA for class 5 “pharmaceutical preparations,
`namely analgesics, hormones, psychotropics, anti-infectives, anti-inflammatories,
`and anti-cancer agents for use in the treatment of disease via application to the
`lungs” as well as class 10 “medical apparatus, namely, electronically-based
`devices used to deliver drugs and biologics to the lungs.” Owned by Aradigm
`Corporation.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`See the evidence attached to the Final Office Action. These third party registrations have
`
`probative value to the extent that they serve to suggest that the goods listed therein are of
`
`a kind that may emanate from a single source. See In re Infinity Broad. Corp., 60
`
`USPQ2d 1214, 1217-1218 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d
`
`1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467,
`
`1470 at n.6 (TTAB 1988).
`
`A review of the Nexis evidence attached to the Final office action also supports
`
`the argument that the goods at issue are related. The evidence shows that it is common
`
`for producers of Pharmaceutical preparations to also produce medical devices. The Nexis
`
`stories include reference to the following companies:
`
`• “Theragenics Corporation. The Company's principal activity is the development,
`manufacture and marketing of radiological pharmaceuticals and devices used in
`the treatment of cancer.” Copyright 2006 W/D Partners, Worldscope, April 10,
`2006.
`• “Miravant Medical Technologies. The Group's principal activity is to develop
`light activated drugs and associated devices for a medical procedure called
`photodynamic therapy (PDT).” Copyright 2006 W/D Partners, Worldscope, April
`10, 2006.
`• “Provectus Pharmaceuticals designs pharmaceuticals for the treatment of
`cancer and various skin problems” and “also develops laser-based medical
`devices.” Copyright 2006 Hoover's Inc., Hoover's Company Records - Basic
`Record, April 11, 2006.
`• “Luitpold Pharmaceuticals has you covered if you're looking for drugs or
`medical devices.” Copyright 2006 Hoover's Inc., Hoover's Company Records -
`Basic Record, April 11, 2006.
`• “Johnson & Johnson (J&J). “J&J's medical devices and diagnostics division
`includes such products as surgical equipment, medical monitoring devices, and
`disposable contact lenses. Its largest segment, pharmaceuticals, makes drugs for
`an array of ailments, including cardiovascular disease, dermatology,
`gastrointestinal health, oncology, and pain management.” Copyright 2006
`Hoover's Inc., Hoover's Company Records - Basic Record, April 11, 2006.
`• “3M Health Care is the largest division of the highly diversified 3M Company. It
`produces medical and surgical products (it is one of the largest producers of tape,
`dressings, and surgical drapes), pharmaceuticals (human and animal), dental and
`orthodontic products, health information systems, personal care products, and
`
`

`
`microbiological testing and monitoring equipment.” Copyright 2006 Hoover's
`Inc., Hoover's Company Records - Basic Record, April 4, 2006.
`
`
`
`Finally, a review of the internet web pages attached to the final action shows that
`
`pharmaceutical preparations are sold in the same channels of trade as medical devices.
`
`The evidence includes the following:
`
`• Pages from drugstore.com showing pharmaceutical preparations sold on the
`
`same site and in the same interface with health monitors including blood
`
`pressure monitors.
`
`• Pages from wallgreens.com showing pharmaceutical preparations sold on the
`
`same site and in the same interface with health monitors including heart rate
`
`monitors.
`
`See evidence attached to Final Office Action. Consumers purchasing drugs for
`
`cardiovascular and respiratory ailments on these websites may use identical channels of
`
`trade to purchase goods such as provided by the applicant (respiration sensors, pulse
`
`sensors, blood pressure sensors).
`
`The goods of the parties are related as they are medical goods which may be used
`
`in treating identical ailments simultaneously as users of cardiovascular and respiratory
`
`drugs may also use respiration sensors, pulse sensors and blood pressure sensors in the
`
`course of their treatment. Further, the third party registrations show that it is common for
`
`producers of pharmaceutical preparations designed to treat a specific disease to also
`
`provide medical devices used in the treatment of the same disease under a single mark.
`
`The Nexis evidence of record shows that it is generally common for producers of
`
`pharmaceutical preparations to also produce medical devices. Finally, the internet
`
`

`
`evidence of record shows that pharmaceutical preparations and medical devices such as
`
`provided by the applicant are sold in common channels of trade.
`
`Taken together, the evidence of record firmly establishes that consumers
`
`understand that producers of pharmaceutical preparations and medical devices do not
`
`produce their goods in a vacuum. Instead, the evidence shows that consumers recognize
`
`that it is common in the industry for producers of pharmaceutical preparations to also
`
`produce medical devices, often producing both for treatment of a specific ailment. Thus,
`
`the goods are related and the refusal to register should be sustained.
`
`A.
`
`That the Goods Differ in Kind is Not Controlling
`
`Applicant argues that the goods are different in kind. However, the fact that the
`
`goods of the parties differ is not controlling in determining likelihood of confusion. The
`
`issue is not likelihood of confusion between particular goods, but likelihood of confusion
`
`as to the source of those goods. In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d
`
`1687, 1690 (Fed. Cir. 1993), and cases cited therein.
`
`With respect to the goods being related, despite being different in kind, applicant
`
`states only that “admittedly, both goods related to the field of medicine.” Applicant’s
`
`brief at 9. However, this vastly understates the relation of the goods. The goods are not
`
`merely both related to the field of medicine. Within the field of medicine, the goods of
`
`the parties are designed specifically for use in monitoring and treating cardiovascular and
`
`respiratory diseases. The goods may be used simultaneously in treating the same ailment.
`
`Thus, the goods are related despite the differences in the nature of the goods.
`
`B.
`
`Sophisticated Purchasers Argument
`
`

`
`Applicant argues that the purchasers are sophisticated. However, the fact that
`
`purchasers are sophisticated or knowledgeable in a particular field does not necessarily
`
`mean that they are sophisticated or knowledgeable in the field of trademarks or immune
`
`from source confusion. See In re Decombe, 9 USPQ2d 1812 (TTAB 1988); In re
`
`Pellerin Milnor Corp., 221 USPQ 558 (TTAB 1983); TMEP §1207.01(d)(vii).
`
`Additionally, where the relevant consumer is comprised of both professionals and the
`
`general public, the standard of care when purchasing the goods is equal to that of the least
`
`sophisticated purchaser in the class. Alfacell Corp. v. Anticancer Inc., 71 USPQ2d 1301,
`
`1304 (TTAB 2004) (as stated in KOS Pharmaceuticals Inc., v. Andrx Corp., 369 F.3d
`
`700, 70 USPQ2d 1874 (3d Cir. 2004), and citing Checkpoint Sys., Inc., v. Check Point
`
`Software Techs., Inc., 269 F.3d 270, 285, 60 USPQ2d 1609, 1617-1618 (3d Cir. 2001)).
`
`
`
`C.
`
`
`
`Applicant’s Attempt to Limit the Channels of Trade is Unpersuasive
`
`Applicant states that “the goods marketed under the NEXAVAR mark are
`
`pharmaceuticals for treating kidney cancer (NEXAVAR is the trade name for sorafenib,
`
`an oral treatment for kidney cancer)” and goes on to speculate that registrant’s goods are
`
`only “administered under highly controlled conditions” and that “the average consumer
`
`cannot purchase such goods without approval of a physician.” Applicant’s brief at 10-
`
`11. However, a determination of whether there is a likelihood of confusion is made
`
`solely on the basis of the goods identified in the application and registration, without
`
`limitations or restrictions that are not reflected therein. In re Dakin’s Miniatures Inc., 59
`
`USPQ2d 1593, 1595 (TTAB 1999). Where the cited registration describes the goods
`
`broadly and there are no limitations as to their nature, type, channels of trade or classes of
`
`

`
`purchasers, then it is presumed that the registration encompasses all goods of the type
`
`described, that they move in all normal channels of trade, and that they are available to all
`
`potential customers. In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992); In re Elbaum,
`
`211 USPQ 639 (TTAB 1981); TMEP §1207.01(a)(iii). Thus, despite applicant’s
`
`argument, the registrant’s goods are not limited to drugs used in the treatment of “kidney
`
`cancer.” The registrant’s goods instead are used for the treatment of a variety of ailments
`
`including “cardiovascular diseases, central nervous system diseases,” as well as
`
`“respiratory and infectious diseases.” Furthermore, nothing in the description limits the
`
`channels of trade. Thus, applicant’s argument is unpersuasive.
`
`
`
`D.
`
`Absence of an Opposition in the Registration of the European Application is not
`
`Relevant
`
`Applicant argues that because its corresponding European application was
`
`accepted and registered without opposition confusion is not likely. Applicant provides no
`
`authority to support its contention that this is “a strong indication that confusion is not
`
`likely” and the examining attorney is aware of none. Thus, applicant’s novel argument
`
`is unsupported by law and unpersuasive.
`
`CONCLUSION
`
`The mark at issue, NEXAVER and NEXAVAR, are highly similar. The goods at
`
`issue are related. Thus, confusion is likely and registration must be denied.
`
`
`
`

`
`Respectfully submitted,
`
`/Daniel Capshaw/
`Trademark Attorney
`Law Office 110
`571.272.9356
`
`
`
`Chris A. F. Pedersen
`Managing Attorney
`Law Office - 110