PTO Form 1822 (Rev 11/2007)
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`OMB No. 0651-0050 (Exp. 07/31/2017)
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`Response to Suspension Inquiry or Letter of Suspension
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`The table below presents the data as entered.
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`Entered
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`85228015
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`LAW OFFICE 114
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`http://tess2.uspto.gov/ImageAgent/ImageAgentProxy?getImage=85228015
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`OPTIMA
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`YES
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`YES
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`The mark consists of standard characters, without claim to any particular font style,
`size or color.
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`Input Field
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`SERIAL NUMBER
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`LAW OFFICE ASSIGNED
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`MARK SECTION
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`MARK
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`LITERAL ELEMENT
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`STANDARD CHARACTERS
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`USPTO-GENERATED IMAGE
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`MARK STATEMENT
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`CANCELLATION PROCEEDING(S)
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`COMMENT(S)/REMARK(S)
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`RESPONSE TO SUSPENSION NOTICE AND OFFICE ACTION
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`In response to the November 28, 2011 Suspension Notice and May 9, 2011 Office Action issued against Application, Serial No.
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`85/228,015 for OPTIMA (the “Application”), Applicant respectfully submits this Response.
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`CANCELLATION PROCEEDING
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`Cancellation No. 92054784 has been terminated.  The Applicant hereby requests removal of this application from suspension for
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`further action by the Examining Attorney.
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`AMENDMENTS
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`Identification of Goods
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`Please amend the identification of goods as follows:
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`            
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`“ Atomic spectrometers, not for use in molecular spectroscopy,” in Class 9.
`
`REMARKS
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`Likelihood of Confusion Under Section 2(d)
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`In the Office Action the Examining Attorney refused registration of the Application under Trademark Act Section 2(d), 15 U.S.C. §
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`1052(d) (“Section 2(d)”) claiming that there is a likelihood of confusion with U.S. Registration No.: 3603099.  
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`For the reasons set forth below, Applicant respectfully disagrees that the Applicant’s Mark (defined below) is likely to cause confusion
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`with the Cited Mark (defined below) and respectfully requests that the Examining Attorney lift his objection and approve the Application for
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`publication.
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`A. The Marks
`Applicant’s Mark:
`
`OPTIMA, U.S. App. Ser. No. 85/228,015 covering, as amended in this response “ Atomic spectrometers, not for use in molecular
`spectroscopy,” in Class 9.   The application was filed on January 27, 2011 and the mark was used at least as early at January 28, 1993.
`
`(the “Applicant’s Mark”)
`
`Cited Mark:
`
`, U.S. Reg. No. 3,603,099 covering “ laboratory equipment and supplies, namely, optical glasses, optical filters and prisms, color
`glass filters, test tubes, spectrophotometers, UV-VIS spectrophotometers, visible spectrophotometers, UV transilluminators,
`refractometers, colorimeters, orbital shakers, stirrer baths, water baths, incubators, warming plates for microscopic vital inspection of
`specimens, micro-centrifuges, electrophoresis systems, consisting of electrophoresis tank, lid, power supply, gel tray and comb,
`electrophoresis illuminator units for use with pre-cast agarose gels and gel cartridges, electrophoresis kits sold as a unit comprised of
`illuminator unit and pre-cast agarose gels and gel cartridges, agarose powders, UV transparent electrophoresis tanks, 3D culture
`matrix mebiol gels, nuclear magnetic resonance sample tubes, and glass cells, namely, dry glass cuvettes, black glass cells, namely,
`black glass cuvettes, and quartz cells, namely, quartz cuvettes, for use in chemical and biological analysis for scientific, laboratory
`and medical research use,” in Class 9, owned by Optima USA, Inc. (the “Registrant”) The mark registered on April 7, 2009 and
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`alleges a March 27, 2006 date of first use.  
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`(together, the “Cited Mark”)
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`(altogether, the “Marks”).
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`            
`
`B. General Principles
`
`A mark is refused registration if it “so resembles a registered mark that it is likely that a potential consumer would be confused or
`
`mistaken or deceived as to the source of the goods and services of the applicant and the registrant.”   15 U.S.C. § 1052(d).  The court in In re
`
`Du Pont de Nemours & Co. delineated many factors that may be considered when determining whether there is a likelihood of confusion
`
`under Section 2(d) of the Lanham Act 476 F.2d 1357 (C.C.P.A. 1973).  Indeed, the factors considered most important by the U.S. Patent and
`
`Trademark Office weigh in favor of registration—the Marks are used in connection with distinct products, and separate and sophisticated
`
`purchasing groups will not be confused and have not been confused to date.  Further, the parties entered into a Consent Agreement.  See
`
`Exhibit A; See TMEP § 1207.01.
`
`C. The Parties Entered Into A Consent to Registration Agreement and Agree that Confusion is Unlikely
`
`            
`
`The Applicant and Registrant have entered into a Consent to Registration Agreement, determining for themselves that confusion of the
`
`Marks is unlikely.  A copy of the Agreement is enclosed.  See  Exhibit A.  Said Agreement carries great weight in the likelihood of confusion
`
`analysis, pursuant to the standards outlined in DuPont. In re E.I. Du Pont de Nemours & Co., 177 U.S.P.Q. 563 (C.C.P.A. 1973); see also In re
`
`Four Seasons Hotels, Ltd., 26 U.S.P.Q.2d 1071 (Fed. Cir. 1993).  Accordingly this factor weighs heavily in favor of allowing Applicant’s
`
`mark.
`
`The parties have determined, pursuant to a written Agreement, that, in view of (i) the differences between the Marks; (ii) the
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`differences in their goods and the respective parties’ goods and their functions; (iii) differences in consumers; and (iv) the differences in the
`
`channels of trade, confusion is unlikely. It is well established that where there are such recognized differences that raise doubt as to likelihood
`
`of confusion, an agreement between the parties is strong evidence that there is no likelihood of confusion and that parties will be able to
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`peacefully coexist. In re Four Seasons Hotels Ltd., 26 U.S.P.Q.2d 1071 at 1072, citing In re National Distillers & Chemical Corp., 132
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`U.S.P.Q. 271 (C.C.P.A. 1962).
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`Additionally, the Federal Circuit has repeatedly recognized that it is highly unlikely that competitors would deliberately create a
`
`situation in which the source of their respective products would be confused by their customers. See In re Four Seasons Hotels Ltd.  26
`
`U.S.P.Q.2d 1071.  Accordingly, the evidentiary weight of a consent agreement should be substantial, particularly where, as here, the agreement
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`constitutes more than a mere consent to registration, but also to use.
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`Furthermore, the lack of any evidence of actual confusion, which the parties hereto acknowledge, has been found to weigh heavily
`
`against a finding of likelihood of confusion even among identical goods or services, as opposed to the distinguishable services that exist in the
`
`present case. See Top Tobacco LP v. North Atalantic Operating Co., 101 U.S.P.Q. 2d 1163 (T.T.A.B. 2011); Edwards Lifesciences Corp. v.
`
`VigiLanz Corp., 94 U.S.P.Q. 2d 1399 (T.T.A.B. 2010).  
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`D. The Applicants Goods Are Entirely Dissimilar From the Cited Mark and do not Compete
`
`Case law clearly supports the position that even if the marks at issue are identical, when the goods are sufficiently different there is no
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`likelihood of confusion.  See In re Princeton Tectonics, Inc., 35 U.S.P.Q.2d 1509 (T.T.A.B. 2010) (EPIC for personal headlamps was not
`
`confusingly similar to EPIC for electric lighting fixtures).  The key inquiry is whether the relevant public will be confused about the source of
`
`the respective goods.  TMEP § 1207(a)(i); Safety-Kleen Corp v. Dresser Indus., Inc., 186 U.S.P.Q. 476, 480 (C.C.P.A. 1975).  In order to
`
`cause consumer confusion, the goods need to be related in some manner or condition surrounding their marketing such that they would be
`
`encountered by the same purchasers under circumstances that would give rise to the belief that the goods come from the same source.  In re
`
`Total Quality Group, Inc., 51 U.S.P.Q.2d 1474, 1476 (T.T.A.B. 1999).  Because of the respective goods are completely different, there is no
`
`chance that consumers would be confused as to their source.
`
`Both Applicant and Registrant provide highly specialized, distinct products that do not overlap in the fields in which they are used, nor
`
`do the purposes they serve overlap.  Applicant’s Mark is used in connection with atomic spectroscopy.  Atomic spectroscopy enables users to
`
`determine information on the atomic level and provides users with information about the presence of a specific atom in a sample.  See
`
`PerkinElmer, “ Atomic Spectroscopy” Exhibit B.  Application of Applicant’s atomic spectroscopy products can be used in environmental
`
`testing (water, air, soil, waste) biomonitoring, industrial hygiene, and consumer products.  See Exhibit B.  Applicant’s products could test for
`
`the presence of a contaminant for food safety purposes.  See PerkinElmer, “ Optima 8x00 Series” Exhibit C.  On the other hand, the goods
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`used under the Cited Mark are used in connection with miscellaneous laboratory equipment.  See identification of Registrant’s goods
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`above, and Optima USA, “ Products Page” Exhibit D.  Registrant’s “spectrophotometers,” listed in the application, and highlighted by the
`
`Examining Attorney in the Office Action, are used to study the light that passes through a substance in order to determine the presence or
`
`density of molecules.  See National Aeronautics and Space Administration, “ Spectroscopy” Exhibit E.  For example spectrophotometers,
`
`such as the Registrants SP-300 can be used to determine the density of bacteria growth in a sample.  See U.S. National Library of Medicine,
`
`“ In Vitro Antibacterial Activity of Ibuprofen and Acetaminophen” Exhibit F.
`
`Applicant’s and Registrant’s products are completely different and are used for different purposes.
`
`  Applicant’s product could not be
`
`used to detect presence or density molecules in a sample.  Similarly, Registrant’s product could detect the presence of single atoms.  
`
`Consumers will not be confused by the source of Applicant’s and Registrant’s products because the goods do not compete in any of the same
`
`markets.  Trademark uses on noncompetitive goods have been consistently held not to be confusingly similar.  See Bristol-Myers Co. v.
`
`Texize Chemicals, Inc., 168 U.S.P.Q. 670 (T.T.A.B. 1971) (BREAKTHRU for hair shampoo not confusingly similar to BREAKTHRU for
`
`liquid drain opener).  Because Applicant and Registrant operate in completely distinct industries and the products do not serve competitive
`
` 
`

`

`purposes, consumers are not likely to be confused about the source of the respective products.
`
`Not only do the machines function differently and serve different purposes, the respective products would not be encountered in the
`
`same laboratories or be used by consumers in the same fields.  The machines themselves are completely different in appearance and
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`price—Applicant’s atomic spectrometer is a large, complex, and very expensive machine costing from the tens to hundreds of thousands of
`
`dollars, whereas Registrant’s spectrophotomer is a small, relatively simple, less expensive scientific device.   See Optima, “ USA SP-300
`
`Device” Exhibit G. 
`
`Even assuming, arguendo, as claimed by the Examining Attorney in the Office Action, that the goods are related, confusion is not
`
`likely under the circumstances.  The Federal Circuit has stated that “even in cases where marks were identical and goods closely related,” that
`
`the parties “affected by the marketplace were best able to attest to its effects and determine whether there was likelihood of confusion.”   In re
`
`Four Seasons Hotels Ltd.  26 U.S.P.Q.2d 1071, citing In re Superior Outdoor Display, Inc., 178 USPQ 151, 153 (C.C.P.A. 1973)(reversing a
`
`refusal to register which was based primarily on the basis that the goods were closely related because the parties entered into an agreement
`
`consenting to registration).  Because the Parties have assessed the situation and concur that there is no likelihood of confusion, the U.S. Patent
`
`and Trademark Office should defer to their judgment.  See Exhibit A.  
`
`Because the purpose, conditions and activities surrounding the use of the goods under the respective marks are distinct and vastly
`
`different, there is no crossover application for the products, they do not compete, and respective customers groups are distinct and
`
`unassociated, there is no likelihood that consumers could be confused as to the source of the goods.
`
`D.    Purchasers In Each Market Are Sophisticated And Are Not Likely To Be Confused When Purchasing Registrant’s Goods
`and Applicant’s Goods
`
`Consumers who purchase technical and intricate atomic spectrometers and laboratory equipment, such as the products at issue here,
`
`are sophisticated purchasers, who are not likely to confuse the source of the goods.  See TMEP § 1207.01(d)(vii) (“[C]ircumstances
`
`suggesting care in purchasing may tend to minimize likelihood of confusion”).   Both the Applicant's goods and Registrant's goods are
`
`specialized niche products, specifically tailored to purchasers in specialized fields, rather than consumers at large.  Purchasers of Applicants
`
`goods include engineers, scientists, researchers, and safety workers.  Purchasers of Registrant’s goods include scientists, researchers, and
`
`educators.  Such sophisticated purchasers buying highly technical, application specific goods are note likely to be confused.  In re Endress +
`
`Hauser, Inc., 191 U.S.P.Q. 238 (T.T.A.B.1976) (The Board held that sophisticated purchasers would not assume common source for
`
`applicant’s and registrant’s highly technical industrial products, sold under identical marks, because the products “would be purchased only
`
`by well-informed persons” and the products are “so specialized in their application that buyers would have to know the purposes and
`
`principles involved in the use thereof”).
`
`Greater sophistication among consumers and their specific needs decreases the likelihood of confusion between two marks, and
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`accordingly, Applicant respectfully asserts the Examining Attorney must find that this factor weighs in favor of allowing publication of
`
`Applicant's Mark.
`
`CONCLUSION
`
`Based on an Agreement between the Applicant and Registrant, the differences between the respective goods, and the sophistication of
`
`the distinct groups of consumers, confusion is unlikely.  Further, the U.S. Patent and Trademark Office should not substitute its judgment for
`
`that of the parties and accordingly should withdraw its refusal under Section 2(d) and approve the Application for publication.  See  In re Four
`
` 
` 
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`

`

`Seasons Hotels Ltd., 26 U.S.P.Q. 2d 1071 and TMEP 1207.01(d)(viii) (“[C]onsent agreements should be given great weight, and… the USPTO
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`should not substitute its judgment concerning likelihood of confusion for the judgment of the real parties in interest without good reason….”)
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`GOODS AND/OR SERVICES SECTION (current)
`
`INTERNATIONAL CLASS
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`DESCRIPTION
`
`FILING BASIS
`
`009
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`Spectrometers
`
`Section 1(a)
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`        FIRST USE ANYWHERE DATE
`
`        FIRST USE IN COMMERCE DATE
`
`At least as early as 01/28/1993
`
`At least as early as 01/28/1993
`
`GOODS AND/OR SERVICES SECTION (proposed)
`
`INTERNATIONAL CLASS
`
`TRACKED TEXT DESCRIPTION
`
`009
`
`Spectrometers; Atomic spectrometers, not for use in molecular spectroscopy
`
`FINAL DESCRIPTION
`
`FILING BASIS
`
`       FIRST USE ANYWHERE DATE
`
`       FIRST USE IN COMMERCE DATE
`
`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
`
`Atomic spectrometers, not for use in molecular spectroscopy
`
`Section 1(a)
`
`At least as early as 01/28/1993
`
`At least as early as 01/28/1993
`
`/jack wessel/
`
`Jack Wessel
`
`Attorney of Record, Massachusetts Bar memeber
`
`617-345-4607
`
`07/02/2012
`
`YES
`
`Mon Jul 02 10:39:51 EDT 2012
`
`USPTO/RSI-XXX.XXX.XXX.XXX
`-20120702103951235765-852
`28015-490434f23231d60752d
`5727f5c8f7f1177-N/A-N/A-2
`0120702102230561075
`
`PTO Form 1822 (Rev 11/2007)
`
`OMB No. 0651-0050 (Exp. 07/31/2017)
`
`Response to Suspension Inquiry or Letter of Suspension
`To the Commissioner for Trademarks:
`
`Application serial no. 85228015 OPTIMA(Standard Characters, see http://tess2.uspto.gov/ImageAgent/ImageAgentProxy?getImage=85228015)
`has been amended as follows:
`CANCELLATION PROCEEDING(S)
`Comment(s)/Remark(s):
`
`RESPONSE TO SUSPENSION NOTICE AND OFFICE ACTION
`
`In response to the November 28, 2011 Suspension Notice and May 9, 2011 Office Action issued against Application, Serial No.
`
`85/228,015 for OPTIMA (the “Application”), Applicant respectfully submits this Response.
`
`CANCELLATION PROCEEDING
`
`Cancellation No. 92054784 has been terminated.  The Applicant hereby requests removal of this application from suspension for further
`
` 
` 
` 
`

`

`action by the Examining Attorney.
`
`AMENDMENTS
`
`Identification of Goods
`
`Please amend the identification of goods as follows:
`
`            
`
`“ Atomic spectrometers, not for use in molecular spectroscopy,” in Class 9.
`
`REMARKS
`
`Likelihood of Confusion Under Section 2(d)
`
`In the Office Action the Examining Attorney refused registration of the Application under Trademark Act Section 2(d), 15 U.S.C. §
`
`1052(d) (“Section 2(d)”) claiming that there is a likelihood of confusion with U.S. Registration No.: 3603099.  
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`For the reasons set forth below, Applicant respectfully disagrees that the Applicant’s Mark (defined below) is likely to cause confusion
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`with the Cited Mark (defined below) and respectfully requests that the Examining Attorney lift his objection and approve the Application for
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`publication.
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`A. The Marks
`Applicant’s Mark:
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`OPTIMA, U.S. App. Ser. No. 85/228,015 covering, as amended in this response “ Atomic spectrometers, not for use in molecular
`spectroscopy,” in Class 9.   The application was filed on January 27, 2011 and the mark was used at least as early at January 28, 1993.
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`(the “Applicant’s Mark”)
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`Cited Mark:
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`, U.S. Reg. No. 3,603,099 covering “ laboratory equipment and supplies, namely, optical glasses, optical filters and prisms, color glass
`filters, test tubes, spectrophotometers, UV-VIS spectrophotometers, visible spectrophotometers, UV transilluminators, refractometers,
`colorimeters, orbital shakers, stirrer baths, water baths, incubators, warming plates for microscopic vital inspection of specimens,
`micro-centrifuges, electrophoresis systems, consisting of electrophoresis tank, lid, power supply, gel tray and comb, electrophoresis
`illuminator units for use with pre-cast agarose gels and gel cartridges, electrophoresis kits sold as a unit comprised of illuminator unit
`and pre-cast agarose gels and gel cartridges, agarose powders, UV transparent electrophoresis tanks, 3D culture matrix mebiol gels,
`nuclear magnetic resonance sample tubes, and glass cells, namely, dry glass cuvettes, black glass cells, namely, black glass cuvettes, and
`quartz cells, namely, quartz cuvettes, for use in chemical and biological analysis for scientific, laboratory and medical research use,” in
`Class 9, owned by Optima USA, Inc. (the “Registrant”) The mark registered on April 7, 2009 and alleges a March 27, 2006 date of first
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`use.  
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`(together, the “Cited Mark”)
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`(altogether, the “Marks”).
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`B. General Principles
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`A mark is refused registration if it “so resembles a registered mark that it is likely that a potential consumer would be confused or
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`mistaken or deceived as to the source of the goods and services of the applicant and the registrant.”   15 U.S.C. § 1052(d).  The court in In re Du
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`Pont de Nemours & Co. delineated many factors that may be considered when determining whether there is a likelihood of confusion under
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`Section 2(d) of the Lanham Act 476 F.2d 1357 (C.C.P.A. 1973).  Indeed, the factors considered most important by the U.S. Patent and
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`Trademark Office weigh in favor of registration—the Marks are used in connection with distinct products, and separate and sophisticated
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`purchasing groups will not be confused and have not been confused to date.  Further, the parties entered into a Consent Agreement.  See Exhibit
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`A; See TMEP § 1207.01.
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`C. The Parties Entered Into A Consent to Registration Agreement and Agree that Confusion is Unlikely
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`The Applicant and Registrant have entered into a Consent to Registration Agreement, determining for themselves that confusion of the
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`Marks is unlikely.  A copy of the Agreement is enclosed.  See  Exhibit A.  Said Agreement carries great weight in the likelihood of confusion
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`analysis, pursuant to the standards outlined in DuPont. In re E.I. Du Pont de Nemours & Co., 177 U.S.P.Q. 563 (C.C.P.A. 1973); see also In re
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`Four Seasons Hotels, Ltd., 26 U.S.P.Q.2d 1071 (Fed. Cir. 1993).  Accordingly this factor weighs heavily in favor of allowing Applicant’s mark.
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`The parties have determined, pursuant to a written Agreement, that, in view of (i) the differences between the Marks; (ii) the differences
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`in their goods and the respective parties’ goods and their functions; (iii) differences in consumers; and (iv) the differences in the channels of
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`trade, confusion is unlikely. It is well established that where there are such recognized differences that raise doubt as to likelihood of confusion,
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`an agreement between the parties is strong evidence that there is no likelihood of confusion and that parties will be able to peacefully coexist. In
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`re Four Seasons Hotels Ltd., 26 U.S.P.Q.2d 1071 at 1072, citing In re National Distillers & Chemical Corp., 132 U.S.P.Q. 271 (C.C.P.A. 1962).
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`Additionally, the Federal Circuit has repeatedly recognized that it is highly unlikely that competitors would deliberately create a situation
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`in which the source of their respective products would be confused by their customers. See In re Four Seasons Hotels Ltd.  26 U.S.P.Q.2d 1071. 
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`Accordingly, the evidentiary weight of a consent agreement should be substantial, particularly where, as here, the agreement constitutes more
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`than a mere consent to registration, but also to use.
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`Furthermore, the lack of any evidence of actual confusion, which the parties hereto acknowledge, has been found to weigh heavily against
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`a finding of likelihood of confusion even among identical goods or services, as opposed to the distinguishable services that exist in the present
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`case. See Top Tobacco LP v. North Atalantic Operating Co., 101 U.S.P.Q. 2d 1163 (T.T.A.B. 2011); Edwards Lifesciences Corp. v. VigiLanz
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`Corp., 94 U.S.P.Q. 2d 1399 (T.T.A.B. 2010).  
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`D. The Applicants Goods Are Entirely Dissimilar From the Cited Mark and do not Compete
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`Case law clearly supports the position that even if the marks at issue are identical, when the goods are sufficiently different there is no
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`likelihood of confusion.  See In re Princeton Tectonics, Inc., 35 U.S.P.Q.2d 1509 (T.T.A.B. 2010) (EPIC for personal headlamps was not
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`confusingly similar to EPIC for electric lighting fixtures).  The key inquiry is whether the relevant public will be confused about the source of
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`the respective goods.  TMEP § 1207(a)(i); Safety-Kleen Corp v. Dresser Indus., Inc., 186 U.S.P.Q. 476, 480 (C.C.P.A. 1975).  In order to cause
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`consumer confusion, the goods need to be related in some manner or condition surrounding their marketing such that they would be encountered
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`by the same purchasers under circumstances that would give rise to the belief that the goods come from the same source.  In re Total Quality
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`Group, Inc., 51 U.S.P.Q.2d 1474, 1476 (T.T.A.B. 1999).  Because of the respective goods are completely different, there is no chance that
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`consumers would be confused as to their source.
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`Both Applicant and Registrant provide highly specialized, distinct products that do not overlap in the fields in which they are used, nor
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`do the purposes they serve overlap.  Applicant’s Mark is used in connection with atomic spectroscopy.  Atomic spectroscopy enables users to
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`determine information on the atomic level and provides users with information about the presence of a specific atom in a sample.  See
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`PerkinElmer, “ Atomic Spectroscopy” Exhibit B.  Application of Applicant’s atomic spectroscopy products can be used in environmental
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`testing (water, air, soil, waste) biomonitoring, industrial hygiene, and consumer products.  See Exhibit B.  Applicant’s products could test for
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`the presence of a contaminant for food safety purposes.  See PerkinElmer, “ Optima 8x00 Series” Exhibit C.  On the other hand, the goods used
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`under the Cited Mark are used in connection with miscellaneous laboratory equipment.  See identification of Registrant’s goods above,
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`and Optima USA, “ Products Page” Exhibit D.  Registrant’s “spectrophotometers,” listed in the application, and highlighted by the Examining
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`Attorney in the Office Action, are used to study the light that passes through a substance in order to determine the presence or density of
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`molecules.  See National Aeronautics and Space Administration, “ Spectroscopy” Exhibit E.  For example spectrophotometers, such as the
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`Registrants SP-300 can be used to determine the density of bacteria growth in a sample.  See U.S. National Library of Medicine, “ In Vitro
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`Antibacterial Activity of Ibuprofen and Acetaminophen” Exhibit F.
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`Applicant’s and Registrant’s products are completely different and are used for different purposes.
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`  Applicant’s product could not be
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`used to detect presence or density molecules in a sample.  Similarly, Registrant’s product could detect the presence of single atoms.   Consumers
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`will not be confused by the source of Applicant’s and Registrant’s products because the goods do not compete in any of the same markets.
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`Trademark uses on noncompetitive goods have been consistently held not to be confusingly similar.  See Bristol-Myers Co. v. Texize
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`Chemicals, Inc., 168 U.S.P.Q. 670 (T.T.A.B. 1971) (BREAKTHRU for hair shampoo not confusingly similar to BREAKTHRU for liquid drain
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`opener).  Because Applicant and Registrant operate in completely distinct industries and the products do not serve competitive purposes,
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`consumers are not likely to be confused about the source of the respective products.
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`Not only do the machines function differently and serve different purposes, the respective products would not be encountered in the same
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`laboratories or be used by consumers in the same fields.  The machines themselves are completely different in appearance and
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`price—Applicant’s atomic spectrometer is a large, complex, and very expensive machine costing from the tens to hundreds of thousands of
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`dollars, whereas Registrant’s spectrophotomer is a small, relatively simple, less expensive scientific device.   See Optima, “ USA SP-300 Device”
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`Exhibit G. 
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`Even assuming, arguendo, as claimed by the Examining Attorney in the Office Action, that the goods are related, confusion is not likely
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`under the circumstances.  The Federal Circuit has stated that “even in cases where marks were identical and goods closely related,” that the
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`parties “affected by the marketplace were best able to attest to its effects and determine whether there was likelihood of confusion.”   In re Four
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`Seasons Hotels Ltd.  26 U.S.P.Q.2d 1071, citing In re Superior Outdoor Display, Inc., 178 USPQ 151, 153 (C.C.P.A. 1973)(reversing a refusal to
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`register which was based primarily on the basis that the goods were closely related because the parties entered into an agreement consenting to
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`registration).  Because the Parties have assessed the situation and concur that there is no likelihood of confusion, the U.S. Patent and Trademark
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`Office should defer to their judgment.  See Exhibit A.  
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`Because the purpose, conditions and activities surrounding the use of the goods under the respective marks are distinct and vastly
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`different, there is no crossover application for the products, they do not compete, and respective customers groups are distinct and unassociated,
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`there is no likelihood that consumers could be confused as to the source of the goods.
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`D.    Purchasers In Each Market Are Sophisticated And Are Not Likely To Be Confused When Purchasing Registrant’s Goods
`and Applicant’s Goods
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`Co