EyePoint Pharmaceuticals US, Inc.

This Opinion is Not a
Precedent of the TTAB
Mailed: March 6, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re EyePoint Pharmaceuticals US, Inc.
_____
Serial No. 98414251
_____
Bradley M. Ganz of Ganz Law, P.C. for EyePoint Pharmaceuticals US, Inc.
Sloan Taylor, Trademark Examining Attorney, Law Office 129,
Pamela Y. Willis, Managing Attorney.
_____
Before Greenbaum, Pologeorgis, and Larkin,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
EyePoint Pharmaceuticals US, Inc. (“Applicant”) seeks registration on the
Principal Register of the standard-character mark DURAJECT for “Medical and
surgical apparatus and instruments for use in ophthalmic procedures” in
International Class 10.1
1 Application Serial No. 98414251 was filed on February 21, 2024 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a bona fide intention
to use the mark in commerce. The Board may take judicial notice of dictionary definitions,
including definitions from online dictionaries that exist in printed format or have fixed
regular editions. See, e.g., In re Nursecon, LLC, No. 88052194, 2024 WL 5265079, at *10 n.64
(TTAB 2024) (citation omitted). We take judicial notice that the adjective “ophthalmic” means

Serial No. 98414251
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The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so
resembles the standard-character mark DURO-JECT, registered on the Principal
Register for a “Medical device, namely, a high pressure bone cement injector” in
International Class 10,2 as to be likely, when used in connection with the goods
identified in the application, to cause confusion.
When the Examining Attorney made the refusal final, Applicant appealed and
requested reconsideration, which was denied. The appeal is fully briefed.3 We reverse
the refusal to register.
I. Prosecution and Procedural History, and Record on Appeal4
We summarize below the prosecution history of the application and the procedural
history of the appeal because they provide useful background to our disposition of the
case.
“of, relating to, or situated near the eye.” MERRIAM-WEBSTER DICTIONARY (merriam-
webster.com, last accessed on February 24, 2026).
2 Registration No. 2984201 issued on August 9, 2005 and has been renewed.
3 Citations in this opinion to the briefs and other materials in the case dockets refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the
page(s) of the docket entry where the cited materials appear. Applicant’s appeal brief appears
at 10 TTABVUE as part of its motion to accept its late-filed brief, discussed below, and its
reply brief appears at 12 TTABVUE. The Examining Attorney’s brief appears at 13
TTABVUE.
4 Citations in this opinion to the application record are to pages in the downloadable .pdf
version of the Trademark Status & Document Retrieval (“TSDR”) database of the United
States Patent and Trademark Office (“USPTO”).

Serial No. 98414251
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The Examining Attorney’s first Office Action refused registration of Applicant’s
mark based on the cited registration.5 The Examining Attorney made of record
USPTO electronic records regarding the cited registration,6 and third-party webpages
that the Examining Attorney claimed showed that “the same entity commonly
manufactures, produces, or provides the types of medical devices and instruments
used in ophthalmic procedures identified in the application and the types of bone
injectors identified in the registration under the same mark.”7 Applicant responded
by arguing against the refusal and making of record a copy of the Board’s decision in
In re HerbalScience Grp. LLC, No. 77519313, 2010 WL 5651672 (TTAB 2010).8
The Examining Attorney next issued an Office Action making final the refusal to
register.9 The Examining Attorney made of record webpages regarding hospital
supply chains, and hospitals and medical centers that provide both ophthalmic and
orthopedic services,10 and additional webpages that the Examining Attorney claimed
showed that “the same entity commonly manufactures, produces, or provides the
5 September 18, 2024 Office Action at TSDR 1-4.
6 Id. at TSDR 5-6.
7 Id. at TSDR 7-31.
8 October 3, 2024 Response to Office Action at TSDR 1-16. It was unnecessary for Applicant
to make a copy of the Board’s precedential decision of record, as all precedential decisions are
reported in Lexis and Westlaw, and are otherwise available in the TTAB Reading Room or
through TTABVUE.
9 November 4, 2024 Final Office Action at TSDR 1-6.
10 Id. at TSDR 7-46.

Serial No. 98414251
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types of ophthalmic instruments identified in the application and the types of bone
cement injectors identified in the registration under the same mark.”11
Applicant then appealed and simultaneously requested reconsideration. In its
Request for Reconsideration, Applicant made of record an article entitled
“Understanding Medical Product Supply Chains;”12 an article entitled “Group
Purchasing Organizations, Health Care Costs, and Drug Shortages;”13 pages from
various websites regarding group purchasing organizations;14 pages from various
websites regarding the procurement of ophthalmology supplies;15 and pages from the
websites at glassdoor.com regarding the purchase of orthopedic supplies.16
The Examining Attorney denied the Request for Reconsideration, making of
record webpages regarding brand recognition in the medical supply field,17 and
additional webpages that the Examining Attorney claimed show that “the same
entity commonly manufactures, produces, or provides the types of ophthalmic
instruments identified in the application and the types of bone cement injectors
identified in the registration under the same mark.”18
11 Id. at TSDR 4, 47-81.
12 December 27, 2024 Request for Reconsideration at TSDR 9-22.
13 Id. at TSDR 23-25.
14 Id. at TSDR 26-42.
15 Id. at TSDR 43-65, 71-83.
16 Id. at TSDR 66-70.
17 February 18, 2025 Denial of Request for Reconsideration at TSDR 4-42.
18 Id. at TSDR 2, 43-68.

Serial No. 98414251
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The appeal was then resumed, and Applicant was allowed until April 20, 2025 to
file its appeal brief. 5 TTABVUE 1. Applicant subsequently changed counsel, 6
TTABVUE 2; 7 TTABVUE 1, but did not file its appeal brief by the deadline, and the
Board dismissed the appeal. 8 TTABVUE 1. On August 26, 2025, Applicant moved
for reconsideration of the Board’s order dismissing the appeal, based on excusable
neglect, and accompanied the motion with Applicant’s appeal brief. 10 TTABVUE 2-
38. The Board granted Applicant’s motion and accepted Applicant’s appeal brief. 11
TTABVUE 1-2. Following the filing of the Examining Attorney’s brief and Applicant’s
reply brief, the case is now ready for decision.
II. Evidentiary Objection
The Examining Attorney argues that “Applicant has submitted new evidence with
their appeal brief. Specifically, Applicant has included a screenshot regarding
McKesson, the headquarters of Rarefied, and Medline not previously accepted nor
reviewed by the examining attorney.” 13 TTABVUE 2 (citing 10 TTABVUE 20-21,
23). The Examining Attorney objects to this evidence and requests that the Board
disregard it. Id. at 3.
In its reply brief, Applicant does not deny that the screenshots shown in its appeal
brief were not made of record during prosecution, but argues that
these objections are fundamentally objections to the
Examining Attorney’s own evidence. The Applicant’s
evidence is just clarifying the source to show it is from sites
outside the US or that it relates to large marketplaces
selling a vast number of products that would not be
displayed side by side on a screen without a structured
query to force the products together.
. . .

Serial No. 98414251
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The Examining Attorney objected to Applicant’s evidence
showing the Rarefied site is in Pakistan and that
McKesson is a large source of various medical products.
But even without Applicant’s evidence, it was incumbent
on the Examining Attorney to show that the sites apply to
the US. There is nothing apparent on the face of the
Examining Attorney’s evidence to establish this. In short,
there is no evidence as to what country these sites are for:
they could be for Canada, Australia, the UK, the EU, or
any other place in the world with an English-speaking
population. Therefore, Applicant objects to the evidence as
non-probative.
12 TTABVUE 2-3.
“The record in an application should be complete prior to the filing of an appeal.”
In re Jimenez, No. 97551823, 2025 WL 3126703, at *2 (TTAB 2025) (citing Trademark
Rule 2.142(d), 37 C.F.R. § 2.142(d)). The screenshots “embedded in Applicant's brief
constitute an improper attempt to augment the record.” Id.19 We sustain the
Examining Attorney’s objection and will not consider the screenshots, although we
will consider Applicant’s arguments in its reply brief regarding the probative value
of the corresponding websites that were made of record by the Examining Attorney
during prosecution.
III. Analysis of Likelihood of Confusion Refusal
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
19 “The proper procedure for an applicant or examining attorney to introduce evidence after
an appeal has been filed is to submit a written request with the Board to suspend the appeal
and remand the application for further examination.” In re Weiss, No. 88621608, 2024 WL
3617597, at *1 (TTAB 2024) (citing Trademark Rule 2.142(b)).

Serial No. 98414251
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Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the likelihood of confusion under Section 2(d) of the Trademark Act is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361
(CCPA 1973) (“DuPont”). Charger Ventures, 64 F.4th at 1379. We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because the
fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.” DC Comics
v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
(internal quotations and quotation marks omitted).
Applicant states in its appeal brief that it
will focus on (1) relatedness of goods; and (2) sophistication
of purchasers. Cases cited below have found that no
likelihood of confusion can be based on a finding that goods
are not sufficiently related even when there is similarity of
marks and in channels of trade. In this case, not only is
there insufficient relatedness of goods but also a degree of
sophistication of purchasers that mitigates against any
risk of confusion.
10 TTABVUE 13. Applicant proceeds to discuss the key second DuPont factor, id. at
13-28, and the third factor and fourth factors, the “similarity or dissimilarity of
established, likely-to-continue trade channels,” and the “conditions under which and
buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing,”

Serial No. 98414251
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respectively. DuPont, 476 F.2d at 1361. 10 TTABVUE 28-31.20 According to
Applicant, the “The Prime Question [is] Who Makes The Purchasing
Decisions?.” Id. at 28 (emphasis supplied by Applicant).
A. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, “we consider the ‘similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731,
at *4 (TTAB 2025) (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” Sage Therapeutics,
Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB
2024) (quoting In re Inn at St. John’s LLC, No. 87075988, 2018 WL 2734893, at *5
(TTAB 2018) (citation omitted), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)); accord
Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (“It is
sufficient if the similarity in either form, spelling or sound alone is likely to cause
confusion.”) (citation omitted).
“The 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 persons who encounter the marks would be likely to assume a connection
between the parties.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach
20 As discussed below, some of Applicant’s and the Examining Attorney’s arguments conflate
the second and third DuPont factors, but “the law is that products should not be deemed
related simply because they are sold in the same kind of establishments.” Recot, Inc. v.
Becton, 214 F.3d 1322, 1325 (Fed. Cir. 2000) (citation omitted). We will address their
arguments on a factor-by-factor basis to the extent possible.

Serial No. 98414251
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Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). “The
focus is on the recollection of the average purchaser, who normally ‘retains a general
rather than a specific impression of marks.’” Id. (quoting In re i.am.symbolic, llc, No.
85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)).
The marks at issue are DURAJECT and DURO-JECT, both in standard
characters. Applicant does not dispute that the marks are similar, and it is self-
evident on the face of the marks that they are very similar in appearance, sound, and
connotation and commercial impression. They are identically structured, beginning
with the prefixes DURA- and DURO-, and ending with the identical suffix -JECT.
The only differences between the marks are the presence of the letter “A” rather than
the letter “O” in Applicant’s mark, and the presence of a hyphen between the syllables
DURO and JECT in the cited mark, which does not distinguish the marks. Pierce-
Arrow Soc’y v. Spintek Filtration, Inc., No. 91224343, 2019 WL 3834985, at *13
(TTAB 2019). The marks’ DURO/DURA prefixes both connote durability and
resilience, and their -JECT suffixes both connote propelling or directing something.
A consumer with a general rather than specific recollection of the cited DURO-
JECT mark who separately sees or hears Applicant’s DURAJECT mark is unlikely
to notice the subtle visual and oral differences between the marks, and is unlikely to
conclude that they differ in meaning. We find that the DURO-JECT and DURAJECT
marks are very similar in all means of comparison, and the first DuPont factor
strongly supports a conclusion that confusion is likely. Naterra, Inc. v. Bensalem, 92
F.4th 1113, 1119 (Fed. Cir. 2024).

Serial No. 98414251
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B. Similarity or Dissimilarity of the Goods, Channels of Trade, and
Classes of Consumers
1. The Second DuPont Factor
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration . . . .” In re Detroit
Athletic Co., 903 F.3d 1297, 1306 (Fed. Cir. 2018). “This factor considers whether ‘the
consuming public may perceive [the goods] as related enough to cause confusion about
the source or origin of the [goods].’” In re St. Helena Hosp., 774 F.3d 747, 752 (Fed.
Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267
(Fed. Cir. 2002)). “In analyzing the [goods] the Board considers ‘[t]he similarity or
dissimilarity and nature of the [goods] as described in an application or registration.’”
In re OSF Healthcare Sys., No. 88706809, 2023 WL 6140427, at *4 (TTAB 2023)
(quoting In re Embiid, No. 88202890, 2021 WL 2285576, at *10 (TTAB 2021)).
The relatedness of goods or services may be established based on various evidence,
including (1) the language of the involved identifications of goods or services, which
may show, on the face of the identifications, that the goods or services are literally or
legally identical, or are otherwise intrinsically related, and (2) evidence of third-party
uses or registrations, which may show that the identified goods or services are
commonly offered by the same entity under the same mark, or are otherwise related.
Id. The Examining Attorney relies here on third-party uses to establish relatedness.
“[W]e must construe the [goods] identified in the cited registration as broadly as
reasonably possible to include all [goods] of the nature and type described therein,”
OSF Healthcare, 2023 WL 6140427, at *5 (internal quotation and quotation marks

Serial No. 98414251
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omitted), and “we must resolve any ambiguities regarding their coverage in favor of
the cited registrant given the presumptions afforded the registration under Section
7(b) of the Trademark Act.” Id. (internal quotation and quotation marks omitted).
“[W]e must also give the [goods] identified in the application their full scope in our
analysis of the second DuPont factor.” Id. (citation omitted).
In the cited registration, the identification of goods specifies that the referenced
“Medical device” is “a high pressure bone cement injector,” which effectively defines
the broadest possible reasonable construction of the goods. By contrast, the goods
identified in the application as “Medical and surgical apparatus and instruments for
use in ophthalmic procedures” are not limited to any particular “medical and surgical
apparatus” used in “ophthalmic procedures,” so the full scope of that identification
includes any “apparatus and instruments” used in such procedures.
Applicant summarizes its arguments under the second DuPont factor as follows:
Applicant’s identification expressly restricts its goods “for
use in ophthalmic procedures”. Registrant’s goods are
expressly directed to bone (orthopedic) cement injectors.
Applicant’s and Registrant’s medical goods are highly
specialized products sold to and used by separate and
distinct purchasers. Lack of relatedness alone can be a
dispositive du Pont factor even when marks are identical
or nearly identical. The case law recognizes that medical
specialties use distinct goods that have distinct purchasers,
as Applicant’s evidence of record demonstrates. The
Examining Attorney’s evidence of record is not probative as
to the issue of relatedness of goods because it does not show
that the same purchasers would encounter both
Applicant’s goods and those of the Registrant.
. . .
The Examining Attorney’s basic positions are (1) that both
ophthalmic products and orthopedic products are offered
on common online shopping sites; and (2) and that some

Serial No. 98414251
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hospitals offer both ophthalmic and orthopedic services,
and therefore a purchaser for a hospital would encounter
both kinds of goods together on such sites. However, there
is no evidence of record that it actually happens. The
Examining Attorney’s speculative assertions are
contradicted by case law and by abundant evidence of
record.
10 TTABVUE 12-13.
As noted above, the Examining Attorney made of record multiple third-party
websites to show that the goods are related. In that regard, Applicant argues that
the essence of the Examining Attorney’s evidence is that
Applicant’s kind of goods and those of Registrant can be
sold on the same websites. But all such sites cited by the
Examining Attorney are (1) large marketplaces offering a
wide range of medical goods from different manufacturers
or (2) single vendors offering a wide range of medical goods
under different categories. In no case are both kind of goods
offered under the same category or on the same page.
What the evidence of record does show is that Applicant
and Registrant’s respective goods are in distinct fields of
medicine--DURAJECT is used on an instrument intended
for use in ophthalmic surgery, while DURO-JECT is used
on an instrument for orthopedic surgery. These fields and
goods are highly specialized and do not overlap in function
or purpose.
Id. at 16.
Applicant also addresses the specific third-party websites relied on by the
Examining Attorney, and provides a site-by-site critique of them in tabular form. Id.
at 19-27. Applicant concludes that “the evidence cited by the Examining Attorney is
not probative of showing relatedness of Applicant’s ophthalmic instruments and
Registrant’s orthopedic instruments.” Id. at 27.

Serial No. 98414251
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The Examining Attorney responds by first citing record evidence that “specifies
the types of medical and surgical instruments commonly used in ophthalmic
procedures.” 13 TTABVUE 5. The Examining Attorney next argues that the fact that
“Applicant’s and Registrant’s medical instruments are sold on the same websites
supports the assertion that purchasers would believe the Applicant’s and Registrant’s
kind of medical goods commonly originate from the same source . . . .” Id. The
Examining Attorney claims that various specific websites offer, under the same mark,
both ophthalmic instruments and one or more of the “Medical and surgical apparatus
and instruments” that fall within the identification language “for use in ophthalmic
procedures.” Id. at 5-6. According to the Examining Attorney, the “goods are not
related simply because they are sold in the same kind of establishment,” but also
because “they are “produced, sold, and marketed in a manner that creates conditions
to believe a singular source provides a diverse offering of medical supplies and
equipment ‘ranging from tongue depressors to computerized tomography scanners.’”
Id. at 7 (record citation omitted).
The Examining Attorney concludes that “the evidence of record shows the same
entity commonly manufactures, produces, provides, or sells the type of ophthalmic
instruments identified in the application and the types of bone injectors identified in
the registration using the same mark and through the same trade channels.” Id. at
6.
In its reply brief, Applicant argues that the Examining Attorney’s “cited evidence
includes references to large online marketplaces and vendors. The sites are either not

Serial No. 98414251
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probative of how the relevant purchasers encounter goods, and/or are for non-relevant
goods.” 12 TTABVUE 6. Applicant addresses a number of the websites as follows
(emphasis supplied by Applicant):
• Dental Vendors
Some cited vendors like 3M/Solventum are for dental products and do not show
orthopedic products at all.
• Marketplace Evidence
Screenshots from McKesson, Medline, Henry Schein, Cardinal Health, and
others show products from different manufacturer[s] that (1) either [are] not
under [sold] a single mark or (2) are for products the Examining Attorney has
not established would be encountered together when the sites are used by the
relevant purchasers, at least without a synthesized search query that forces
the products together. There is no evidence of record that a single
purchaser would exercise such a query.
• Procurement Evidence:
Procurement in the medical industry is specialty-specific, with distinct buyers
for ophthalmic and orthopedic goods. The complexity of healthcare
procurement in the U.S. means that specialty-specific buyers make decisions
for ophthalmic versus orthopedic products.
• Applicant’s Evidence is Substantial:
It demonstrates that ophthalmic and orthopedic products are consistently
shown as separate categories, not featured on the same page.
Id. (emphasis supplied by Applicant).
We begin by addressing the potential full scope of the goods identified in the
application as “Medical and surgical apparatus and instruments for use in
ophthalmic procedures.” As noted above, the Examining Attorney made of record
evidence to “specif[y] the types of medical and surgical instruments commonly used
in ophthalmic procedures.” 13 TTABVUE 5. A page from the website of Rarefied

Serial No. 98414251
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International (rarefiedintl.com) contains a product section captioned “Ophthalmic
Instruments,” which lists “cannulas, forceps, corneal markers, scissors, speculums,
spatulas, I/A systems, IOL manipulators, Lasek instruments, needle holders, Phaco
choppers, sponges, and sterilization cases” as instruments in that product category.21
Some of the listed products are shown on the site and are identified by brand name.22
Pages from the website of Surgical Holdings, which is identified on the masthead
of the site as a “British Manufacturer of Surgical Equipment,”23 include a page
captioned “Ophthalmic Instruments” that states that “Ophthalmic instruments
include: Forceps – Serrated and untoothed forceps for holding tissue, such as the iris,
to restrict movement during ophthalmology . . . Needle Holders - For holding the
needle in position whilst applying sutures . . . Iris Scissors - Used for interocular
manoeuvres in the iris and deeper and more delicate structures or to cut the external
side of the cornea or iris.”24 The webpages display examples of the instruments, as
21 September 18, 2024 Office Action at TSDR 21.
22 Id. at TSDR 21-23.
23 “Foreign websites may have probative value on the meaning of a term in the United States
under certain circumstances if it is likely that ‘U.S. consumers will encounter foreign
websites in the field in question.’” In re Korn Ferry, No. 90890949, 2024 WL 3219482, at *11
n.28 (TTAB 2024) (quoting In re Well Living Lab. Inc., No. 86440401, 2017 WL 2876809, at
*4 n.10 (TTAB 2017)). There is no evidence that United States purchasers of medical and
surgical instruments would visit the websites of foreign suppliers of the goods for the purpose
of purchasing, but we will consider the Surgical Holdings website for the limited purpose for
which the Examining Attorney offers it, namely, to identify goods that may fall within the
full scope of the goods identified in the application as “Medical and surgical apparatus and
instruments for use in ophthalmic procedures.” We address below the probative value of
another foreign website and a foreign article that the Examining Attorney offers for other
purposes.
24 November 4, 2024 Final Office Action at TSDR 79.

Serial No. 98414251
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well as examples of what the site describes as “clips, calipers, knives, [and] spoons,”
and “Retractors, speculum, cannulae,” and “titanium hooks.”25
In our second factor analysis, we will consider the goods identified and displayed
on the Rarefied International and Surgical Holdings websites as among the
instruments that fall within the full scope of the goods identified in the application
as “Medical and surgical apparatus and instruments for use in ophthalmic
procedures.”
We turn next to the websites that the Examining Attorney claims show that the
involved goods are offered under the same mark. 13 TTABVUE 5-6. In assessing
relatedness based on Internet evidence, we must make a threshold identification of
the goods that are offered through the respective websites. In that regard,
we acknowledge that [goods] may not be explicitly
described at all, or may be described in colloquial language
that does not track the technical language of acceptable
identifications of goods . . . in applications and
registrations, including those involved here. In such
instances, we must determine the nature of the [goods] that
are offered, and decide whether they fall within the full
scope of the language in the involved identifications.
OSF Healthcare, 2023 WL 6140427, at *10 (citations omitted).
We summarize below the relevant contents of the websites cited by the Examining
Attorney:
• The Rarefied International website displays, under the heading “Dental
Instruments,” what are described as “BOne injectors,”26 as well as the
25 Id. at TSDR 79-80.
26 September 18, 2024 Office Action at TSDR 17-19. As noted above, Applicant argues that
the Examining Attorney did not show that this website is that of a company in the United

Serial No. 98414251
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ophthalmic instruments discussed above, under the separate heading
“Ophthalmic Instruments,;”27
• The Medtronic website (Medtronic.com) displays a Valleylab™ bipolar
forceps,28 while the WestCMR website (westcmr.com) displays and
discusses a Medtronic “Bone Filler Device . . . For Placing Orthopedic Bone
Cement Into Surgical Sites;”29
• The Stryker website (stryker.com) displays a variety of instruments used
in what are described as “FESS procedures,”30 as well as a product
identified as an “Injector II Capsule closure,” which the site describes as
having “[c]apsule retraction capability designed to offer complete
visualization to the peripheral hip compartment allowing for full access to
the cam pathology;”31
• The 3M website (3m.com) displays and discusses a “3M™ Steri-Drape™
Ophthalmic Drape with Incise Film and Pouch,” while the Solventum
website (solventum.com) offers dental cement injectors under the 3M
mark;32
• The Cardinal Health website (cardinalhealth.com) displays and discusses
“standard and custom ophthalmology kits with over 2,000 components,”
and displays a “Total Joint Replacement supply checklist” listing goods
ranging from anesthesia to wound closures, including “cement” and
“cement mixing bowls,” but not a “high pressure bone cement injector;”33
and
States, but there is nothing on the face of the website to indicate that it is not, and we will
consider it for whatever probative value it may have.
27 Id. at TSDR 21-23.
28 November 4, 2024 Office Action at TSDR 63-64. The webpage does not specify the intended
or possible surgical uses of the forceps.
29 Id. at TSDR 67.
30 We take judicial notice that in the context of medical procedures, “FESS” is an abbreviation
for “Functional Endoscopic Sinus Surgery.” ACRONYM FINDER (acronymfinder.com, last
accessed on March 3, 2026). See In re BetaBatt, Inc., No. 77036122, 2008 WL 5232795, at *4
(TTAB 2008) (relying in part on ACRONYM FINDER to determine the meaning of “DEC”).
31 November 4, 2024 Final Office Action at TSDR 69-77.
32 Id. at TSDR 43-54. The 3M website states that “3M Healthcare is now Solventum.” Id. at
TSDR 52.
33 Id. at TSDR 55-59.

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• The Premier websites (premierdentalco.com and premiermedicalco.com),
which display and discuss a dental cement injector and “iris forceps.”34
These websites lack probative value as evidence that “the same entity commonly
manufactures, produces, provides, or sells the type of ophthalmic instruments
identified in the application and the types of bone injectors identified in the
registration using the same mark . . . .” 13 TTABVUE 6. The Rarefied International
website shows goods described as “Dental Instruments” and “Ophthalmic
Instruments,” but the Examining Attorney did not show that teeth are made of bone,
or that “a high pressure bone cement injector” is used in dental procedures, and the
goods do not appear to be sold under the same mark in any event. The Medtronic and
WestCMR websites also show the involved goods, but do not show them being sold
under the same mark. The Stryker website does not show the involved goods because
the instruments are described as used in sinus procedures, not ophthalmic
procedures, and the “Injector II Capsule closure” is not described as used for “high
pressure bone cement inject[ion].” The 3M website shows products that arguably fall
within the full scope of the ophthalmic goods identified in the application, but the
other relevant products are “dental cement injectors,” and, as noted above, the
Examining Attorney did not show that teeth are made of bone, or that “a high
pressure bone cement injector” is used in dental procedures. The Cardinal Health
website shows multiple ophthalmic instruments and multiple bone surgery products,
34 Id. at TSDR 60, 67. The goods described as “iris forceps” are shown on a page of the
premiermedicalco.com website captioned “Dermatology » Instruments » Forceps.” Id. at
TSDR 70. We take judicial notice that in the medical field, “Iris” abbreviates “Immune
Reconstitution Inflammatory Syndrome.” ACRONYM FINDER (acronymfinder.com, last
accessed on March 3, 2026).

Serial No. 98414251
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but does not show a “high pressure bone cement injector.” Finally, the two Premier
websites show products that are superficially similar to the ones involved in this
appeal, but that do not apply to surgery involving either bones or the eyes.35
Because the record does not show that “medical and surgical apparatus and
instruments for use in ophthalmic procedures” and “a high pressure bone cement
injector” are commonly sold under the same marks, and there is no other probative
evidence of relatedness, we find that the second DuPont factor strongly supports a
conclusion that confusion is not likely. OSF Healthcare, 2023 WL 6140427, at *17.
2. The Third DuPont Factor
The third DuPont factor considers the “similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. Applicant and the
Examining Attorney essentially agree, and the record shows, that “Medical and
surgical apparatus and instruments for use in ophthalmic procedures” and a “Medical
device, namely, a high pressure bone cement injector” may both be purchased through
the websites of wholesale medical equipment suppliers even if they are not sold under
the same marks. Applicant and the Examining Attorney also essentially agree, and
the record shows, that the purchasers of the involved goods include group purchasing
organizations (“GPOs”), and hospitals and medical centers that provide ophthalmic
35 As the Board explained in OSF Healthcare, examining attorneys and the Board must focus
on the precise language of the relevant identifications of goods or services, not on broadened
or generalized goods or services, OSF Healthcare, 2023 WL 6140427, at *12, especially where,
as here, at least one of the identifications is very specific.

Serial No. 98414251
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and orthopedic surgery.36 The Federal Circuit has explained, however, that “although
the two parties conduct business not only in the same fields but also with some of the
same companies, the mere purchase of the goods and services of both parties by the
same institution does not, by itself, establish similarity of trade channels or overlap
of customers.” Elec. Design & Sales, Inc. v. Elec. Data Sys. Corp., 954 F.2d 713, 717
(Fed. Cir. 1992) (citing Astra Pharm. Prods., Inc. v. Beckmann Instruments, Inc., 718
F.2d 1201, 1206 (1st Cir. 1983)). “The likelihood of confusion must be shown to exist
not in a purchasing institution, but in a ‘customer or purchaser.’” Id. (quoting Astra,
718 F.2d at 1206) (emphasis in bold here in italics in Elec. Design & Sales).
Accordingly, we must identify the relevant “customer or purchaser” in, or on behalf
of, the hospitals and medical centers in which “Medical and surgical apparatus and
instruments for use in ophthalmic procedures” and a “Medical device, namely, a high
pressure bone cement injector” are used.
Citing government websites and articles in the record,37 Applicant argues that
there are distinct purchasers for ophthalmic and orthopedic goods both within GPOs,
which are “intermediaries that catalog medical supplies so medical centers can
purchase them from manufactures,”38 and within medical facilities themselves. 10
36 It is, of course, possible that smaller specialty medical practices or perhaps even individual
surgeons would provide one or the other type of surgery, but the record does not show that
they would provide both types of surgery.
37 December 27, 2024 Request for Reconsideration at TSDR 9-83.
38 Id. at TSDR 23 (Bruhn, et al., Group Purchasing Organizations, Health Care Costs, and
Drug Shortages).

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TTABVUE 28-31.39 The record shows that the vast majority of medical supplies used
by hospitals and health care centers are purchased through GPOs.40 Applicant singles
out Cardinal Health, whose website was made of record by the Examining Attorney
and is discussed above, as a representative GPO,41 and argues that Cardinal Health
“breaks down its GPO operations by specialty areas,” including one dedicated to
ophthalmological products. Id. at 29.42 Applicant also points to other GPOs that
provide ophthalmological products. Id.43
Citing evidence made of record in its Request for Reconsideration, Applicant
further argues that “[w]hile GPOs may be the dominant purchasers in the US
healthcare industry, healthcare providers and facilities also select products and make
purchases,” and that “[s]uch other purchasers may use specialty-dependent
procurement specialists.” Id. at 30.44 Applicant concludes that
39 In its appeal brief, Applicant cites an article made of record by the Examining Attorney
entitled “Steroplast Healthcare - Where Do Hospitals Get Their Supplies?” 10 TTABVUE 28
(citing November 4, 2024 Final Office Action at TSDR 7-14). In its reply brief, however,
Applicant argues that this article “is from the UK not the US.” 12 TTABVUE 4. The cited
article is from a United Kingdom website, steroplast.co.uk, which expresses the prices of
supplies in pounds, not United States dollars, November 4, 2024 Final Office Action at TSDR
7-14, and because the United Kingdom has a different health care system than the one in the
United States, we find that the cited article is not probative of the channels of trade and
classes of consumers for medical supplies in the United States.
40 December 27, 2024 Request for Reconsideration at TSDR 23 (“Most medical centers today
acquire supplies, medications, and devices through group purchasing organizations (GPOs)
rather than directly from a manufacturer. . . . collectively, the 4 largest GPOs in the United
States account for 90% of the market for medical supplies”).
41 Cardinal Health is listed as the fourth largest GPO by affiliated-hospital bed count. Id. at
TSDR 27.
42 Id. at TSDR 36-39.
43 Id. at TSDR 40-54.
44 Id. at TSDR 55-83.

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[a]part from the cited evidence, it is axiomatic that experts
from one specialty do not have the knowledge and expertise
to select products in another specialty due to the unique
needs of each area and the compelling need for field-specific
safety and efficacy expertise. Absent such expertise, clinics
and practitioners would expose their patients to products
that could be less than optimal or cause, resulting in
substantial product liability and malpractice claims
exposure. The purchasing of medical products is therefore
naturally and inextricably linked to specialty-specific
knowledge and expertise.
Id. at 30-31.
The Examining Attorney responds that “[i]t is evident the medical supply chain is
complex and varied; healthcare facilities of all sizes have to make buying decisions
that support a variety of departments and specializations . . . .” 13 TTABVUE 6. The
Examining Attorney quotes language from the Steroplast and Cardinal Health
websites discussed above, id. at 7,45 and argues that “since there are many entities
within the medical supply chain, source identification in a connected system like
healthcare is necessary to mitigate confusion,” id. (record citation omitted), and that
“[b]randing is one of the most effective tools organizations have used to create
sustainable competitive advantages and differentiate products and services from the
competition, while within healthcare, brand creates top-of-mind awareness and
simplifies the decision-making process.” Id. at 7-8 (internal quotation and quotation
marks omitted). But the Examining Attorney also quotes, and appears to agree with,
the statement in Applicant’s appeal brief that “‘there is no such thing as a single
45 As noted above, the Steroplast website has no probative value on the third or fourth DuPont
factors because it is a foreign website.

Serial No. 98414251
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purchaser for a hospital customer’ because ‘different individuals or groups within a
buying institution are responsible for purchasing different kinds of medical goods’.”
Id. at 8 (quoting 10 TTABVUE 28).
The “essential inquiry in this appeal . . . is whether there is likely to be sufficient
overlap of the respective purchasers of the parties’ goods . . . to confuse actual and
potential purchasers.” Elec. Design & Sales, 954 F.2d at 716. The record shows that
here, as in Elec. Design & Sales, and in the First Circuit’s Astra decision, cited by the
Federal Circuit in Elec. Design & Sales, the involved goods are sold to large
institutions (GPOs and medical centers), but their brands are not exposed to the same
“customer or purchaser” within those institutions. Elec. Design & Sales, 954 F.2d at
717 (quoting Astra, 718 F.2d at 1206).46 The channels of trade for the involved goods
do not overlap and the third DuPont factor supports a conclusion that confusion is
not likely.
3. The Fourth DuPont Factor
The fourth DuPont factor considers the “conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
476 F.2d at 1361. Applicant summarizes its argument under this factor as follows:
As the evidence shows, procurement in the medical
industry is highly structured and complex. The products at
issue are medical instruments and therefore are FDA-
regulated. Applicant’s evidence on procurement shows that
46 The Examining Attorney argues that “within healthcare, brand creates top-of-mind
awareness and simplifies the decision-making process,” and that “source identification is
important for both consumers and providers of goods.” 13 TTABVUE 8 (internal quotation
and quotation marks omitted). We obviously recognize the importance of branding in today’s
economy, but the record does not show that the DURO-JECT and DURAJECT brands are
likely to be exposed to the same purchase-decision makers.

Serial No. 98414251
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the purchasing decisions are complex and multivariable. It
includes consultation among stakeholders specific to
medical practice areas. The Action fails to recognize or
provide any contradictory evidence that there is a common
purchaser with sufficient sophistication to procure both
kinds of instruments.
10 TTABVUE 31.
The Examining Attorney does not dispute that purchasers of the involved surgical
supplies are sophisticated, but argues that “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,” and that “where the purchasers consist of both professionals and the
public, the standard of care for purchasing the goods is that of the least sophisticated
potential purchaser.” 13 TTABVUE 8 (citations omitted).
In its reply brief, Applicant responds that “the Examining Attorney presented no
evidence whatsoever of the sophistication level of any purchaser,” while “Applicant’s
evidence shows that it is of a high and discerning, non-impulsive level,” and that “a
‘least sophisticated purchaser’ will consistently be deliberating and intelligent to
make safe and effective decisions for healthcare provider teams and their patients.”
12 TTABVUE 6.
“[W]here the purchaser class is mixed, the Board considers the likelihood of
confusion from the perspective of ‘the least sophisticated potential purchasers’.” In re
Info. Builders Inc., No. 87753964, 2020 WL 2094122, at *5 (TTAB 2020) (citing Stone
Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014)). The
record here shows, however, that the relevant purchaser class is not mixed because

Serial No. 98414251
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the purchasers of the involved goods are all professional buyers of medical supplies.
“Just from the record description of goods . . . here one would expect that nearly all .
. . purchasers would be highly sophisticated,” Elec. Design & Sales, 954 F.2d at 718,
and even the “least sophisticated potential” professional buyer of medical supplies in
a procurement specialty such as ophthalmic or orthopedic equipment is likely to be
relatively sophisticated and to exercise more than ordinary care in purchasing. The
fourth DuPont factor supports a conclusion that confusion is not likely.
C. Balancing the DuPont Factors
“The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument; ‘explain the results of that
weighing;’ and discuss ‘the weight [we] assigned to the relevant factors.’” Jimenez,
2025 WL 3126703, at *8 (quoting Charger Ventures, 65 F.4th at 1379). “No
mechanical rule determines likelihood of confusion, and each case requires weighing
of the facts and circumstances of the particular mark.” Id. (quoting In re Mighty Leaf
Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010)). “‘[T]he weight afforded to each factor
depends on the circumstances’ and ‘[a]ny single factor may control a particular case.’”
Id. (quoting Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998
(Fed. Cir. 2020)).
The key first two DuPont factors point us in different directions. Under the first
factor, the DURO-JECT and DURAJECT marks are quite similar, and their
similarity weighs heavily in favor of a conclusion that confusion is likely. Under the
second factor, the goods are dissimilar even though they fall within the same general

Serial No. 98414251
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category of surgical equipment, and their dissimilarity weighs heavily in favor of a
conclusion that confusion is not likely. The third and fourth factors point us in the
same direction as the second factor. The channels of trade are distinct even though
the involved different types of surgical equipment are ultimately used in the same
health care facilities, and the purchasers of the goods are all professional buyers who
can be expected to be relatively sophisticated and to exercise care in purchasing the
goods. We conclude that the dissimilarity of the goods and channels of trade, and the
sophistication of the professional purchasers of the goods, outweigh the similarity of
the marks, and make confusion unlikely.
Decision: The refusal to register is reversed.