IP Law Daily, TRADEMARK—TTAB: FREEDOM X mark likely to be confused with registered mark OXLIFE FREEDOM, (Apr 20, 2023)

By Kevin M. Finson, J.D.

An examining attorney’s refusal of registration was affirmed because the mark in question was similar to a registered mark and used with complimentary goods sold to the same purchasers through the same channels of trade.

A proposed mark for use with oxygen cannulas was likely to be confused with an existing registered mark for use with oxygen concentrators, the Trademark Trial and Appeal Board has held. The marks were similar, and the goods were medical devices that were necessarily used together by the same purchasers (In re: 3B Medical, Inc., April 17, 2023, Coggins, R.).

3B Medical, Inc. (3B) sought registration on the Principal Register of the Standard Character mark FREEDOM X as well as a stylization with design of the same words, both for “cannulas for oxygen concentrators for medical applications” in International Class 10. The Examining Attorney refused registration on the ground of likelihood of confusion with the registered mark OXLIFE FREEDOM for “oxygen concentrators for medical applications” in International Class 10. 3B appealed. The board applied the DuPont factors for which there was evidence of record.

Similarity of goods, trade channels, classes of purchasers. The Examining Attorney argued, and the board agreed, that the goods were complimentary because they necessarily must be used together because cannulas, such as those sold by 3B, are used with oxygen concentrators, such as those sold by the registrant, to provide oxygen to patients in medical care. The board also noted that third-party website evidence from medical providers showed similar goods sold under the same mark through the same websites to the same consumers. The board held that all three of these factors weighed in favor of a likelihood of confusion.

Similarity of the marks. The Examining Attorney argued that, in both marks, the dominant portion was the word FREEDOM, and therefore they shared a similar commercial impression. 3B argued that the letter X produced a harsh sound while OXLIFE produced a soft sound, and that the word FREEDOM in the registered mark connoted freedom from something, while in 3B’s mark it denoted freedom to do something. The board held that while FREEDOM was dominant in 3B’s mark, the leading term OXLIFE held more weight in the registered mark due to the context of oxygen equipment. Even so, the differences did not outweigh the similarities in sound, sight, and shared wording, especially when considered as the recollection of the ordinary consumer. This factor weighed in favor of a likelihood of confusion.

Balancing the factors, the board concluded that confusion was likely, and it affirmed the refusal to register.

The Case is Serial Nos. 88948110 and 88953956.

Attorneys: Timothy C. Bradley (Carlson, Gaskey & Olds, PC) for 3B Medical, Inc. William H. Dawe, III for the USPTO.

Companies: 3B Medical, Inc.

Cases: Trademark USPTO