To:
`Subject:
`Sent:
`Sent As:
`
`BRYCE J. MAYNARD(bryce.maynard@bipc.com)
`U.S. Trademark Application Serial No. 79209128 - EVOX THERAPEUTICS
`December 08, 2021 02:38:57 PM EST
`tmng.notices@uspto.gov
`
`Attachments
`
`United States Patent and Trademark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
`
`
`
`U.S. Application Serial No.  79209128
`
`Mark:   EVOX THERAPEUTICS
`
`Correspondence Address:  
`Bryce J. Maynard
`Buchanan Ingersoll & Rooney PC
`1737 King Street, Suite 500
`Alexandria VA 22314 UNITED STATES
`
`Applicant:   Evox Therapeutics Limited
`
`Reference/Docket No.  N/A
`
`Correspondence Email Address:   bryce.maynard@bipc.com
`
`
`
`
`
`
`REQUEST FOR RECONSIDERATION
`AFTER FINAL ACTION
`DENIED
`
`International Registration No.  1348112
`
`Issue date:   December 08, 2021
`
`Applicant’s Request for Reconsideration is denied.   See 37 C.F.R. §2.63(b)(3).  The Trademark
`Examining Attorney has carefully reviewed Applicant’s request and determined the request did not:  (1)
`raise a new issue, (2) resolve the outstanding issue, (3) provide any new or compelling evidence with
`regard to the outstanding issue, or (4) present analysis and arguments that were persuasive or shed new
`light on the outstanding issue.  TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`Accordingly, the following refusal made final in the Office action dated April 19, 2021 is  maintained
`and continued: 
`
`

`

`
`
`•
`
`Section 2(d) Refusal - Likelihood of Confusion
`
`
`See TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`Section 2(d) Refusal - Likelihood of Confusion
`
`Introduction.  Registration of the applied-for mark is refused because of a likelihood of confusion with
`the mark in U.S. Registration No. 6110326. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see
`TMEP §§1207.01 et seq. See the previously attached registration.
`
`Applicant's mark is EVOX THERAPEUTICS (standard characters) for “Drug delivery agents in the
`form of exosomes that facilitate the delivery of pharmaceutical preparations; biological
`preparations comprising exosome for medical use; biological reagents comprising exosome for
`medical use; mixed biological preparations comprising exosome for pharmaceutical and medical
`use; diagnostic reagents comprising exosome for medicinal use in the fields of biology, genetic
`engineering and pharmaceuticals; diagnostic kits comprised of medical diagnostic reagents and
`assays for testing of exosomes for use in the detection of infectious diseases, cancer, diabetes,
`obesity, metabolic syndrome, dementia, mitochondrial disease, neuromuscular disease,
`inflammatory diseases and autoimmune disorders” in International Class 005 and “Scientific,
`medical and pharmaceutical research and development services; pharmaceutical drug
`development services; research and development of pharmaceutical preparations; biological
`research; clinical research in the field of transformational therapeutics; providing medical and
`scientific research information in the field of filtration of exosomes from blood; scientific
`investigations for medical purposes; scientific laboratory services; medical research laboratory
`services; laboratory research services relating to pharmaceuticals; research and development in
`the field of biotherapeutics for the treatment of infectious diseases and metabolic disorders;
`consulting services in the fields of biotechnology, pharmaceutical research and development and
`genetic science” in International Class 042.
`Registrant's mark is EVOXX (standard characters) for “Chemicals used in industry; Chemical,
`biochemical and biotechnological preparations used in science, namely, in the chemical industry;
`Chemical, biochemical and biotechnological preparations used in photography; Chemical,
`biochemical and biotechnological preparations used in agriculture; Chemical, biochemical and
`biotechnological preparations used in horticulture; Chemical, biochemical and biotechnological
`preparations used in forestry; Chemical, biochemical and biotechnological preparations for
`preserving foodstuffs; Chemical, biochemical and biotechnological preparations for conserving
`foodstuffs; Chemical, biochemical and biotechnological preparations for making foods and
`foodstuffs; Chemical, biochemical and biotechnological preparations for making beverages;
`Chemical, biochemical and biotechnological preparations for cosmetic purposes; Chemical,
`biochemical and biotechnological preparations for making hair and/or body care preparations;
`Chemical, biochemical and biotechnological preparations
`for making pharmaceutical
`preparations and/or medicines; Enzymes for industrial purposes; Enzyme preparations for
`industrial purposes; Biochemical catalysts; Carbonic hydrates; Starch for industrial purposes;
`Artificial sweeteners; Emulsifiers for industrial purposes; Unprocessed plastics; Adhesives used
`in
`industry, none of the aforementioned being fungicides, herbicides,
`insecticides, or
`parasiticides” in International Class 001, “Pharmaceutical and veterinary preparations for treating
`digestive diseases; Adjuvants for medical purposes; Appetite suppressants for medical purposes;
`Medical preparation for slimming purposes; Medical preparations for treating constipation;
`Laxatives; Dietetic preparations adapted for medical use, namely vitamins, amino acids, and
`
`

`

`carbohydrates for enteral or parenteral feeding; Dietetic beverages in the nature of tea, juice,
`lemonade, sodas, non-alcoholic beverages, soft-drinks, adapted for medical purposes; Dietetic
`substances in the nature of carbohydrates and sugars adapted for medical use; Dietetic foods in
`the nature of bread, cookies, sweets in the nature of medicated candy adapted for medical use;
`Nutritional supplements; Infant formula; Nutritional supplements in the nature of edible plant
`fibres and soluble fibres for medical purposes in the nature of cereal fibres, pectin; Additives to
`fodder for medical purposes, namely, dietary supplements for animals; By-products of the
`processing of cereals for medical purposes; Cellulose esters for pharmaceutical purposes; Starch
`for dietetic or pharmaceutical purposes; Medicinal preparations for the mouth to be applied in
`the form of capsules for medicines; Capsules sold empty for pharmaceutical purposes;
`Prescription and non-prescription medicines, namely, capsules for the treatment of digestive
`diseases; Digestives for pharmaceutical purposes; Beverages in the nature of tea, juice, lemonade,
`sodas, non-alcoholic beverages, soft-drinks, adapted for medicinal purposes; Healthcare
`preparations for medical purposes, namely powders, drinks, tablets, capsules for treatment of
`gastro intestinal diseases, gut health and digestive health; Disinfectants; Biotechnological
`preparations and products, namely proteins supplements, enzymes for medical use; Enzymes for
`veterinary purposes; Enzyme preparations for medical purposes; Enzyme preparations for
`veterinary purposes; Bacterial production strains for medical use; Bacterial production strains
`for veterinary use; Micro-organism cultures for medical use for use in the treatment of gastro
`intestinal diseases or digestive diseases; Cultures of micro-organisms for veterinary purposes for
`use in the treatment of gastro intestinal diseases or digestive diseases; Ferments for
`pharmaceutical purposes; Ferments for veterinary use; Bacteriological culture mediums; Dental
`impression materials” in International Class 005, and “Science and technology services and
`research services relating thereto, namely, scientific research in the field of food, biotechnology,
`bioenergy, pharmacy, chemistry; Industrial analysis and research services, namely, industrial
`research in the field of food, biotechnology, bioenergy, pharmacy, chemistry; Performance of
`chemical analyses; Biological research; Chemical, pharmaceutical, biotechnological and genetic
`technology laboratories; Technical and scientific consultancy and support in the field of
`chemistry, pharmacy, biotechnology and genetic technology, via communications media, namely
`the internet; Technical and scientific consultancy and support with regard to the introduction of
`chemical, pharmaceutical, biotechnological and genetic technology preparations and products for
`others; Research and development of new products for others” in International Class 042.
`
`Trademark Act Section 2(d) bars registration of an applied-for mark that is so similar to a registered
`mark that it is likely consumers would be confused, mistaken, or deceived as to the commercial source
`of the goods and services of the parties. See 15 U.S.C. §1052(d). Likelihood of confusion is determined
`on a case-by-case basis by applying the factors set forth in In re E. I. du Pont de Nemours & Co., 476
`F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) (called the “du Pont factors”). In re
`i.am.symbolic, llc, 866 F.3d 1315, 1322, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017). Any evidence of
`record related to those factors need be considered; however, “not all of the DuPont factors are relevant
`or of similar weight in every case.” In re Guild Mortg. Co., 912 F.3d 1376, 1379, 129 USPQ2d 1160,
`1162 (Fed. Cir. 2019) (quoting In re Dixie Rests., Inc., 105 F.3d 1405, 1406, 41 USPQ2d 1531, 1533
`(Fed. Cir. 1997)).
`
`Although not all du Pont factors may be relevant, there are generally two key considerations in any
`likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the
`relatedness of the compared goods and services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123
`USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64
`USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
`
`

`

`1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d)
`goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and
`differences in the marks.”); TMEP §1207.01.
`
`The overriding concern is not only to prevent buyer confusion as to the source of the goods
`and services, but to protect Registrant from adverse commercial impact due to use of a similar mark by
`a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).
`Therefore, any doubt regarding a likelihood of confusion determination is resolved in favor of
`Registrant. TMEP §1207.01(d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
`1265, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464-
`65, 6 USPQ2d 1025, 1026 (Fed. Cir. 1988).
`
`Comparison of the marks.  Marks are compared in their entireties for similarities in appearance,
`sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP,
`746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve
`Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir.
`2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find
`the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018)
`(citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam, 777 F. App’x 516, 2019
`BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b).
`
`When comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead
`whether the marks are sufficiently similar in terms of their commercial impression such that
`[consumers] who encounter the marks would be likely to assume a connection between the parties.”
`Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1373, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting
`Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir.
`2012)); TMEP §1207.01(b). The proper focus is on the recollection of the average purchaser, who
`retains a general rather than specific impression of trademarks. In re Inn at St. John’s, LLC, 126
`USPQ2d 1742, 1746 (TTAB 2018) (citing In re St. Helena Hosp., 774 F.3d 747, 750-51, 113 USPQ2d
`1082, 1085 (Fed. Cir. 2014); Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 169
`USPQ 39, 40 (C.C.P.A. 1971)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019);
`TMEP §1207.01(b).
`
`In the present case, the compared marks are highly similar because they both contain the term "EVOX"
`or novel spelling "EVOXX".  Marks may be confusingly similar where, as here, similar terms or phrases
`or similar parts of terms or phrases appear in the compared marks and create a similar overall
`commercial impression. See Crocker Nat’l Bank v. Canadian Imperial Bank of Commerce, 228 USPQ
`689, 690-91 (TTAB 1986), aff’d sub nom. Canadian Imperial Bank of Commerce v. Wells Fargo Bank,
`Nat’l Ass’n, 811 F.2d 1490, 1495, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and
`COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985)
`(finding CONFIRM and CONFIRMCELLS confusingly similar); In re Pellerin Milnor Corp., 221
`USPQ 558, 560 (TTAB 1983) (finding MILTRON and MILLTRONICS confusingly similar); TMEP
`§1207.01(b)(ii)-(iii).
`
`The additional disclaimed term, "THERAPEUTICS", in Applicant's mark fails to obviate this refusal,
`because "EVOX", which it shares in common with the registered mark, is the dominant feature of the
`applied-for mark.  Although marks are compared in their entireties, one feature of a mark may be more
`significant or dominant in creating a commercial impression. See In re Viterra Inc., 671 F.3d 1358,
`1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224
`
`

`

`USPQ 749, 751 (Fed. Cir. 1985); TMEP §1207.01(b)(viii), (c)(ii). Disclaimed matter that is descriptive
`of or generic for a party’s goods and services is typically less significant or less dominant when
`comparing marks. In re Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir.
`2018) (citing In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir.
`1997)); TMEP §1207.01(b)(viii), (c)(ii).
`
`The additional letter "X" at the end of Registrant's mark, "EVOXX", does not detract from the
`confusing similarity in this case. Notably, this second letter "X" merely repeats the same ending
`consonant sound and does not alter the overall commercial impression of the term "EVOX" in any
`meaningful way. Further, slight differences in the sound of similar marks will not avoid a likelihood of
`confusion. In re Energy Telecomms. & Elec. Ass’n, 222 USPQ 350, 351 (TTAB 1983); see In re
`Viterra Inc., 671 F.3d 1358, 1367, 101 USPQ2d 1905, 1912 (Fed. Cir. 2012).
`
`For the reasons set forth more fully above, the compared marks are confusingly similar.
`
`Comparison of the goods and services.  The goods and services are compared to determine whether
`they are similar, commercially related, or travel in the same trade channels. See Coach Servs., Inc. v.
`Triumph Learning LLC, 668 F.3d 1356, 1369-71, 101 USPQ2d 1713, 1722-23 (Fed. Cir. 2012);
`Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165, 64 USPQ2d 1375, 1381 (Fed. Cir. 2002);
`TMEP §§1207.01, 1207.01(a)(vi).
`
`The compared goods and services need not be identical or even competitive to find a likelihood of
`confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475
`(Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000);
`TMEP §1207.01(a)(i). They need only be “related in some manner and/or if the circumstances
`surrounding their marketing are such that they could give rise to the mistaken belief that [the goods 
`and services] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d
`1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
`1715, 1724 (TTAB 2007)); TMEP §1207.01(a)(i).
`
`Determining likelihood of confusion is based on the description of the goods and services stated in the
`application and registration at issue, not on extrinsic evidence of actual use. See In re Detroit Athletic
`Co., 903 F.3d 1297, 1307, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (citing In re i.am.symbolic, llc,
`866 F.3d 1315, 1325, 123 USPQ2d 1744, 1749 (Fed. Cir. 2017)).
`
`Generally, the greater degree of similarity between the applied-for mark and the registered mark, the
`lesser the degree of similarity between the goods and services of the parties is required to support a
`finding of likelihood of confusion. In re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015)
`(citing In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001)); In re Thor Tech, Inc., 90 USPQ2d
`1634, 1636 (TTAB 2009).
`
`As an initial matter, the Examining Attorney notes that the services are identical in part with respect to
`"biological research". Additionally, both parties' goods include pharmaceutical products. Thus, the
`nature of the goods and services is similar.
`Notably, Applicant's goods include diagnostic products for the detection of various medical conditions
`and illnesses, such as obesity and metabolic syndrome and Registrant's goods include pharmaceuticals
`for obesity and metabolism, including appetite suppressants, medical preparations for slimming
`purposes, food and beverages adapted for medical and dietetic use, and more. Also, Registrant's goods
`include enzymes and enzyme preparations for medical purposes, which could presumably be used to
`
`

`

`treat all types of medical conditions or illnesses and/or be used as drug delivery agents and reagents
`like those delineated in Applicant's identification.
`
`Furthermore, in this case, the application uses broad wording to describe "scientific, medical and
`pharmaceutical research and development services", which presumably encompasses all services of the
`type described, including Registrant’s more narrowly identified "scientific research in the field of food,
`biotechnology, bioenergy, pharmacy, chemistry". See, e.g., In re Solid State Design Inc., 125 USPQ2d
`1409, 1412-15 (TTAB 2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB
`2015). In addition, the registration uses broad wording to describe "research and development of new
`products for others", which presumably encompasses Applicant's more narrowly
`identified
`"pharmaceutical drug development services", "research and development of pharmaceutical
`preparations", and "research and development in the field of biotherapeutics for the treatment of
`infectious diseases and metabolic disorders". See id. Thus, Applicant’s and Registrant’s services are
`legally identical in part. See, e.g., In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018)
`(citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336, 209 USPQ 986, 988
`(C.C.P.A. 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); Baseball
`Am. Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844, 1847 n.9 (TTAB 2004)).
`
`Additionally, the goods and services of the parties have no restrictions as to nature, type, channels of
`trade, or classes of purchasers and are “presumed to travel in the same channels of trade to the same
`class of purchasers.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)
`(quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005
`(Fed. Cir. 2002)). 
`
`The previously and newly  attached Internet evidence establishes that exosomes are drug delivery agents
`and are also known for having various potential diagnostic and therapeutic uses. Such uses
`include  diagnosis and/or treatment of gastrointestinal disorders such as those  stated in Registrant’s
`identification. Further, the previously and newly attached Internet and dictionary evidence demonstrates
`that  exosomes are comprised, in part, of enzymes, which are also included in Registrant’s goods. This
`evidence demonstrates that the parties' goods are similar in purpose or function.
`The Trademark Examining Attorney has attached evidence from the USPTO’s X-Search database
`consisting of a number of third-party marks registered for use in connection with the same or similar
`goods as those of both Applicant and Registrant in this case. This evidence shows that the goods listed
`therein, namely,  drug delivery agents and pharmaceutical preparations used to treat various conditions,
`are of a kind that may emanate from a single source under a single mark. See In re I-Coat Co., 126
`USPQ2d 1730, 1737 (TTAB 2018) (citing In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18
`(TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky
`Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988)); TMEP §1207.01(d)(iii).  See attached
`Registration Nos. 5771628, 5956872, 6056485, 6108588, 6158772, 6170100, 6201037, 6257608,
`6283602, and 6296869.
`
`Moreover, to the extent the evidence may not address all the items in Applicant’s identification,
`relatedness does not have to be established for every product and service.  It is sufficient for a finding
`of likelihood of confusion if relatedness is established for any or some items encompassed by the
`identification within a particular class in an application. Tuxedo Monopoly, Inc. v. General Mills Fun
`Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).  In this case, relatedness has been
`established for many of the identified goods and services, which is enough to show a likelihood of
`confusion.
`
`
`

`

`Therefore, the goods and services are related for likelihood of confusion purposes.
`
`Applicant's arguments. Applicant's arguments have been carefully considered and found unpersuasive
`for the reasons set forth below.
`
`First, Applicant amended its identification of goods and avers that the goods are unrelated in that
`Applicant’s goods do not include “pharmaceutical preparations”. However, despite Applicant’s
`assertions to the contrary, its drug delivery agents, reagents, exosomes, and diagnostic kits are still
`considered “pharmaceutical preparations” despite that particular phrase not appearing in Class 5. In
`particular, the previously attached Internet evidence from Biology Online defines a “pharmaceutical
`preparation” as “drugs intended for human or veterinary use, presented in their finished dosage form”
`and includes “materials used in the preparation and/or formulation of the finished dosage form”. See
`https://www.biologyonline.com/dictionary/pharmaceutical-preparations. See also newly attached
`Internet evidence defining "pharmaceutical preparations" to include "materials used in the preparation
`and/or
`formulation
`of
`the
`finished
`dosage
`form".
`See
`https://connects.catalyst.harvard.edu/Profiles/display/Concept/Pharmaceutical%20Preparations. By its
`definition, a “pharmaceutical preparation” includes such drugs or materials as drug delivery agents,
`reagents, exosomes, and diagnostic kits. Therefore, the goods remain similar in nature.
`
`In the Request for Reconsideration, Applicant avers that the website "Biology Online" is not an
`authoritative source reflecting how consumers will view the term "pharmaceutical preparation".
`Applicant also included definitions of the word, "pharmaceutical". Notably, Applicant did not include
`any alternative definitions for "pharmaceutical preparations" as a whole phrase as it appears in
`Registrant's identification. While the Examining Attorney maintains that the previously attached
`evidence is sufficient, the additional attached Internet evidence reflects a similar definition of
`"pharmaceutical preparations" and further supports the conclusion that exosomes, reagents, and drug
`delivery agents are, in fact, "pharmaceutical preparations". Applicant also states that the cited
`registration refers to finished drugs and not ingredients thereof. While the Examining Attorney
`respectfully disagrees with this narrowed reading of Registrant's identification, it should be noted that
`Registrant's goods in International Class 1 include "chemical, biochemical and biotechnological
`preparations for making pharmaceutical preparations and/or medicines". Thus, even if Applicant is
`correct that "pharmaceutical preparations" does not refer to ingredients of medicines, which is not
`conceded here, it remains that Registrant's goods encompass those of Applicant by also explicitly
`identifying ingredients of said medicines.
`
`Applicant further argues that Registrant's goods do not merely include "pharmaceutical preparations",
`but rather to pharmaceutical preparations for treating specific conditions. However, the evidence of
`record clearly demonstrates that exosomes and reagents are used to treat various conditions, including
`those conditions mentioned in Registrant's identification. Thus, the goods are highly related because
`they are similar in nature, purpose, and function.
`
`Applicant also states that the goods travel in different channels of trade with Applicant’s goods sold to
`hospitals, clinics, and medical professionals and Registrant’s goods prescribed by doctors or sold over-
`the-counter at pharmacies and other retail outlets. However, the presumption under Trademark Act
`Section 7(b) is that the registrant is the owner of the mark and that their use of the mark extends to all
`goods and services identified in the registration.  15 U.S.C. §1057(b).  In the absence of limitations as
`to channels of trade or classes of purchasers in the goods and services in the registration, the
`presumption is that the goods and services move in all trade channels normal for such goods and
`services and are available to all potential classes of ordinary consumers of such goods and services. 
`
`

`

`See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018); In re Melville Corp., 18 USPQ2d 1386,
`1388 (TTAB 1991); TMEP §1207.01(a)(iii).
`
`Regarding the relatedness and partially overlapping nature of the parties’ respective services, Applicant
`argues that the confusion is unlikely because the consumers are sophisticated and the marks differ. The
`fact that purchasers are sophisticated or knowledgeable in a particular field, which the Examining
`Attorney does not concede in this case, does not necessarily mean that they are sophisticated or
`knowledgeable in the field of trademarks or immune from source confusion.  TMEP §1207.01(d)(vii);
`see, e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d. 1317, 1325, 110 USPQ2d
`1157, 1163-64 (Fed. Cir. 2014); Top Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1170
`(TTAB 2011).  Further, where the purchasers consist of both professionals and the public, as is this
`case, the standard of care for purchasing the goods is that of the least sophisticated potential purchaser. 
`In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion Capital Partners, LP v.
`Lion Capital LLP, 746 F.3d. at 1325, 110 USPQ2d at 1163), aff’d per curiam, 777 F. App’x 516, 2019
`BL 375518 (Fed. Cir. 2019).
`
`Additionally, Applicant’s assertion that the extra letter “X” in “EVOXX” in Registrant’s mark and the
`additional term “THERAPEUTICS” in Applicant’s mark meaningfully differentiate the marks is not
`persuasive. As stated previously, the extra letter “X” fails to change the commercial impression of the
`term “EVOX” and the disclaimed term “THERAPEUTICS” is less significant or less dominant when
`comparing marks. Applicant correctly states that marks must be compared in their entireties and should
`not be dissected; however, a Trademark Examining Attorney may weigh the individual components of
`a mark to determine its overall commercial impression.  In re Detroit Athletic Co., 903 F.3d 1297,
`1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (“[Regarding the issue of confusion,] there is nothing
`improper in stating that . . . more or less weight has been given to a particular feature of a mark,
`provided the ultimate conclusion rests on consideration of the marks in their entireties.” (quoting In re
`Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985)). 
`
`Finally, Applicant's deletion of the wording "scientific, medical, and pharmaceutical research and
`development" is insufficient to overcome this refusal. Even without this entry, the services remain
`identical in part with respect to "biological research" and each parties' services encompass the other,
`rendering these services legally identical.
`
`Conclusion.  For the reasons set forth more fully above, the compared marks are confusingly similar
`and the parties' goods and services are related. Therefore, registration is refused pursuant to Trademark
`Act Section 2(d) and this refusal continues to be final.
`
`What happens next. The Trademark Trial and Appeal Board will be notified to resume the
`appeal.   See TMEP §715.04(a).  
`
`
`
`/Samantha Agreda/
`Samantha Agreda
`Trademark Examining Attorney
`Law Office 123
`(571) 270-0903
`samantha.agreda@uspto.gov
`
`
`
`

`

`S Try out PMC Labs and tell us what you think. Learn More.
`JoumalList » Stem Gell Investig >v6; 2021 > PMC8100822
`
`Formats:
`Article | PubReader | ePub(beta) | PDF(1.2M) | Cite
`Share
`S Stem Cell
`INVESTIGATION
`Oo
`0’
`acebook[JTwitterGiGoogles
`Gir:
`a
`BB
`cong)
`‘Stem Cell Investig, 2021; 8: 7.
`PMCID: PMC8100822
`PMID: 33969112
`Published online 2021 Apr2. doi: 10.21037/sci-2020-037
`Saveitems
`
`Seeall.
`
`Exosomal therapy—a new frontier in regenerative medicine
`[=]
`we AddtoFavorites
`
`Sathish Muthu,"23-"Asawari Bapat,*” Rashmi Jain." Naveen Jeyaraman,?®" and Madhan Jeyaraman™-3.7."
`9g39&
`Similar articles in PubMed
`» Author information » Article notes » Copyright and Licenseinformation Disclaimer
`Current understanding ofthe mesenchymal stem cell-derived
`
`exosomes in cancer.and aging._[Biotechnol Rep (Amst). 2021]
`This articlehas been cited byotherarticles in PMC.
`‘Tumor-derived extracellular vesicles:reliable tools forCancer
`x8a
`diagnosis andclinical applications.
`[Cell CommunSignal. 2019]
`Abstract
`Goto:
`MSCs-Derived Exosomes: Cell-Secreted Nanovesicles with
`Regenerative Potential.
`[Front Pharmacol. 2016]
`Therecent advances in translational and nanomedicine havepaved the wayfor developingthe targeted
`es: A Potential
`MesenchymalStem Cell-Derived Exosc
`drugdelivery system ata greater pace amongglobal researchers. On par with these technologies, exosomes
`TherapeuticAvenuein Knee Osteoarthritis.
`[Cartilage. 2020]
`act as a potential portal for cell-free drug delivery systems asthese are bestowed withthe native
`Therapeutic potential of mesenchymal stem cell-derived
`characteristics ofthe parent cell oforigin. Exosomes,called extracellularvesicles (EeVs), are present in
`exosomes as a cell-free therapy appre [Connect Tissue Res. 2021]
`almost all cells, tissues, and body fluids. They help in intercelfular signaling and maintains tissue
`See reviews...
`homeostasis in the disease pathobiology. Researchers have characterized 9,769 proteins, 2,838 miRNAs,
`Seeall.
`3.408 mRNAs,and 1,116lipids being present in exosomal cargo. The separation ofexesomesfrom cells,
`tissues, and body fluids follow differentpatterned kinetics. Exosomes interact with the recipientcells
`through their surface receptor molecules andligands and internalize within recipient cells through
`Cited by other articlesinPMC. &
`
`micropinocytosis and phagocytosis.Advancingtechnologies in regenerative medicinehave facilitatedthe
`Translational products of adipose tissue-derived mesenchymal
`researchers to isolate exosomes from mesenchymal stem cells (MSCs)as these cells are blessed with
`stem cells: Bench to bedside ap [World Journal of Stem Cells. 2...
`supremeregenerative potentialityin targeting adisease. Exosomal cargo is a key playerin establishing the
`Evaluation ofin viva toxicity ofbiological nanoparticles
`diagnosis and executing therapeutic role whilst regulating a diseaseprocess. Various in vitro studies have
`[Current protocols. 2024]
`exhibited the safety, efficacy, andtherapeutic potentiality ofexosomesin various cancers,
`Exosomes: Potential Disease Biomarkers and New Therapeutic
`neurodegenerative, cardiovascular,and orthopedic diseases. This article throws light onthe composition,
`[Biomedicines. 2024]
`Targets
`therapeutic role, and regulatory potentials ofexosomes withthewidening ofthehorizon inthe field of
`regenerative medicine.
`Keywords: Exosomes, extracellularvesicles (EcVs), cellular therapy, biological medicine
`Goto @
`Introduction
`The contemporary developments in thefield oftranslational medicine include the development oftargeted
`
`Bysenuyeowerg
`
`

`

`RecentActivity
`w
`drug deliverysystemstor ha