TTAB - Trademark Trial and Appeal Board - *1 HEWLETT-PACKARD COMPANY v. HUMAN PERFORMANCE MEASUREMENT, INC. September 20, 1991

Trademark Trial and Appeal Board

Patent and Trademark Office (P.T.O.)





September 20, 1991



 Opposition No. 81,830 to application Serial No. 73/767,363, filed on December 5, 1988



Don B. Finkelstein and M. Iris Hess of Ladas & Parry for Hewlett-Packard Company



James D. Runzheimer for Human Performance Measurement, Inc.



Before Sams, Simms and Hohein






Opinion by Hohein






 Applicant, Human Performance Measurement, Inc., has filed an application for registration of the mark "HPM" and design, in the form reproduced at right,




for "medical instruments for clinical measurement of human performance functions, e.g. manual dexterity, reaction time and memory". [FN1]



 Opposer, Hewlett-Packard Company, has opposed registration of applicant's mark on the ground that it so resembles the following marks shown in opposer's three pleaded registrations, which have been previously used by opposer "in connection with the manufacture and sale of a wide range of related laboratory and medical instruments and equipment for physiological monitoring, measuring, recording, diagnostic and analysis purposes, and parts therefor, and related services, among others," as to be likely, when applied to applicant's goods, to cause confusion, mistake or deception: (i) "HP" and design, as shown below; [FN2] (ii) "HP"; [FN3] and (iii) "HP". [FN4]






 Applicant, in its answer, has denied the salient allegations comprising the notice of opposition. [FN5]



 The record includes the pleadings;         the file of the opposed application; the testimony, with exhibits, of the marketing manager of the Intensive Care Applications Business Unit of opposer's Medical Products Group, Steven G. Emery; and the testimony, with exhibits, of applicant's chairman of the board and chief executive officer, Dr. George V. Kondraske. [FN6] In addition, by a notice of reliance, opposer has made of record a status and title copy of each of its three pleaded registrations as well as two other registrations [FN7] which it also owns; applicant's answers to certain of opposer's interrogatories; and selected portions, and various exhibits, from opposer's discovery deposition of Dr. Kondraske. Opposer and applicant have fully briefed the case but neither party requested an oral hearing.



 According to the record, opposer produces a wide variety of medical and computer equipment which it sells under its various "HP" marks. Opposer's goods, and related support services, include patient monitoring products, cardiography products, cardiovascular products, respiratory care products and perinatal monitoring products as well as clinical information systems. The precision medical instrumentation manufactured and sold by opposer runs the gamut from physiological transducers and electrodes to electrocardiographs and other diagnostic instruments, including ultrasonic imaging systems, along with computerized critical care monitoring and cardiac catherization recording systems.



  *2 Opposer's goods are sold primarily by the employees of its sales distribution network. In addition to its own sales force, opposer utilizes some independent distributors and manufacturers' representatives to sell its products. The end users of opposer's medical products include physicians, nurses, technicians and biomedical engineers. Opposer's products are utilized in hospitals, out-patient clinics, free-standing medical clinics and physicians' offices. In particular, some of opposer's goods have application in medical institutions in the field of physical medicine, such as rehabilitation facilities. While the actual purchasers of opposer's goods vary, they include hospital purchasing agents, administrators and doctors.



 In 1980, sales of opposer's medical products group, which is also known within the company as "HP-MPG," were in the vicinity of $150 to $200 million and have experienced steady growth. Over the past several years, such sales have annually exceeded $600 million. Opposer, during 1989, expended more than $3 million on advertising and promoting its medical products. Opposer is referred to by its customers and the users of its products as "HP" and its goods are referred to as "HP products".



 Applicant designs, manufactures and markets medical instruments for clinical measurement of different aspects of human performance such as a manual dexterity, reaction time and memory. Applicant's products involve a transfer of technology developed at the University of Texas at Arlington by Dr. Kondraske, a leading researcher in the field of human performance measurement who is also applicant's chief executive officer and chairman of the board. "Human performance measurement," as outlined in testimony and articles written by Dr. Kondraske, is a term of art for a relatively new and highly specialized medical area which deals with computer-based systems for measuring a broad range of sensory, neuro-muscular, musculoskeletal and cerebral functions. Unlike most of opposer's patient monitoring, ultrasonic imaging, specialized cardiology and medical information system products, which principally find application in operating rooms and other critical care settings, applicant's goods are functionally different and are chiefly used in the rehabilitation field to aid in the diagnosis of neurological, speech and movement control disorders and to assess the effectiveness of treatment for such conditions.



 Applicant does not produce or sell patient monitoring equipment, in the sense of the well understood meaning of that term in the medical field, nor does it plan to since such equipment is basically associated with measuring a patient's vital signs and other life sustaining functions. Likewise, applicant does not offer nor does it plan to make or sell cardiology equipment, ultrasonic imaging equipment or computerized systems to manage patient data. Rather, applicant's goods are basically used for testing patients with neuromotor or musculoskeletal injuries, although they can also be used to test anyone, including athletes, to determine a level of performance ranging from significantly impaired to exceptionally able. Applicant's goods function by actively stressing different functional components of muscles and/or the brain and measuring the musculoskeletal and/or neuromotor response to the various stimuli employed. Applicant's goods are sold to hospitals, clinics and universities and are utilized by neurologists, orthopedists, physical therapists, physiatrists (medical doctors specializing in rehabilitation medicine) and other clinicians in the rehabilitation field. Typically, the users of applicant's goods, who are well informed and discriminating, make the recommendation or decision to buy its products and, generally, such purchasers would not also buy opposer's medical equipment.



  *3 At the present time, applicant has sold approximately 40 units of its various modular-based instruments. Applicant, which was formed in 1987, consists of two employees, besides Dr. Kondraske, who assemble its goods, which are sold directly by applicant as the result, primarily, of Dr. Kondraske's sales presentations to and contacts with other professionals in the field of rehabilitation medicine.



 Because opposer has made of record status and title copies of the registrations upon which it relies, priority of use is not an issue in this proceeding. King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA1974). Moreover, in its brief, applicant does not dispute opposer's priority. The issues to be determined, therefore, are whether any of the parties' respective goods (as well as opposer's ancillary support services) are sufficiently related to support a finding of likelihood of confusion and, if so, whether their respective marks are confusingly similar.



 Turning first to consideration of the goods, opposer contends that the record demonstrates that both parties produce and sell medical equipment for clinically measuring human functions or characteristics. We agree with applicant, however, that opposer has strained to substitute a general, all-encompassing interpretation of the term "human performance measurement" which is glaringly at odds with the specific, technical definition of such concept in the medical field. Thus, for the most part, the only aspects which the parties' products have in common are that they are medical instruments which are sold to and used in hospitals. Applicant's goods are otherwise significantly different from opposer's goods in the manner in which they function and are intended to be utilized primarily by neurologists, orthopedists, physical and occupational therapists, physiatrists and technicians in the medical departments, laboratories and clinics in which those professionals traditionally practice, such as physical medicine and rehabilitation. Most of opposer's products, by contrast, are primarily utilized by cardiologists, surgeons, intensive/critical care specialists, fetal and neonatal specialists, internists, anesthesiologists and others who work in surgical units, intensive/critical care units and other facilities where patient monitoring, ultrasonic imaging, ventilation and data management are required. [FN8]



 Consequently, we concur with applicant that the fact that both parties sell their goods to hospitals, and thus share a common channel of trade, does not necessarily mandate a finding that the products are related and that confusion is likely. As applicant, quoting from Astra Pharmaceutical Products, Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 220 USPQ 786, 791 (1st Cir.1983), points out in its brief: "The 'hospital community' is not a homogeneous whole, but is composed of separate departments with diverse purchasing requirements, which, in effect, constitute different markets for the parties' respective products". The fact, therefore, that there is some overlap in the trade channels is not dispositive in this case.



  *4 Nevertheless, we are constrained to agree with opposer that at least a few of its medical instruments must be considered to be sufficiently related to applicant's products. In particular, we note that opposer, perhaps in light of the criticism in applicant's brief that "OPPOSER has offered no testimony whatsoever analyzing even one item of APPLICANT's equipment and demonstrating that is related to any one or more specific items of OPPOSER's equipment," points near the end of its reply brief to the fact that it has sold an instrument known as an electromyograph. Such instrument, as indicated in the testimony of Mr. Emery and as explained in the sales training manual therefor (Exhibit 67), utilizes the techniques of electromyography [FN9] for diagnosing certain nerve and muscle abnormalities, finding their location, and following the progress of regrowth, if any. [FN10] Although opposer's electromyograph functions in a different manner than applicant's goods, both clearly are suitable for use in rehabilitation labs and would accordingly be employed by neurologists, physical therapists and other medical personnel involved in the diagnosis and treatment of neuromotor and musculoskeletal conditions. Similarly, Mr. Emery testified that of the products discussed in the exhibits previously identified by him in his deposition, opposer's cardiac telemetry systems and electrocardiogram machines are also utilized in rehabilitation facilities and that their purchasers "could very well be the same" as those for applicant's goods. [FN11] Thus, at least with respect its electromyographs, cardiac telemetry systems and electrocardiogram machines, such goods of opposer must be considered to be so closely related to applicant's goods that if sold under the same or substantially similar marks, confusion as to source or sponsorship of the products would be likely.



 This brings us now to consideration of the parties' marks. Opposer, citing  In re Inspection Technology Inc., 223 USPQ 46, 47 (TTAB1984) and cases cited therein, for the proposition that "it has often been held that as between a design and the word portion of a trademark, the word portion dominates and is the portion by which goods and or services are called for," argues that "under such a test, marks which are comprised of letters also take precedence over accompanying designs". In view thereof and since, according to opposer, the respective marks of the parties, in their entireties, are very similar in appearance, are essentially identical in commercial impression and their literal portions "HP" and "HPM" sound virtually the same, opposer maintains that confusion is likely, particularly in light of another "well-established principle of trademark law that confusion is more likely between arbitrarily arranged letters than for other types of marks".



 Applicant, on the other hand, asserts that its mark differs in appearance, connotation and commercial impression from opposer's marks. In particular, applicant stresses that the design in its mark of a horizontal bar graph superimposed on the profile of a human face dominates the three letters "HPM" and is strikingly different from any of opposer's "HP" marks. Applicant consequently contends that while its mark incorporates the two letters "HP" found in opposer's marks, the unique design of applicant's entire mark negates any potential for confusion.



  *5 As stated in the recent case of In re Electrolyte Laboratories Inc.,  913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed.Cir.1990):

   More dominant features will, of course, weigh heavier in the overall impression of a mark. Giant Food, Inc. v. Nation's Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed.Cir.1983). There is no general rule as to whether letters or design will dominate in composite marks; nor is the dominance of letters or design dispositive of the issue. No element of a mark is ignored simply because it is less dominant, or would not have trademark significance if used alone. See Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d 1293, 184 USPQ 35 (CCPA1974) (improper to ignore portion of composite mark).

In light thereof, and considering the marks in their entireties, we believe that applicant's mark is not confusingly similar to any of opposer's marks. The design elements of applicant's mark, which include a horizontal bar graph superimposed on a profile of a human face enclosed within a square-shaped block, are significant features of applicant's mark which are at least as prominent as, if not more prominent than, the letters "HPM". The design aspects of three of opposer's marks are also significant in that they are substantially different from applicant's mark, with their rectangular, circular and rhomboidal shapes functioning more than as simply backgrounds for display of the letters "HP". Moreover, the letters "HPM" in applicant's mark and the letters "HP" in opposer's marks are not arbitrary; rather, they obviously serve as acronyms for the distinguishing portions of the parties' respective trade names, namely, Human Performance Measurement and Hewlett-Packard.



 Accordingly, it is our opinion that contemporaneous use of the mark "HPM" and design for "medical instruments for clinical measurement of human performance functions, e.g. manual deterixty, reaction time and memory," and use of the marks "HP," with and without various designs, for a wide range of laboratory and medical instruments and services incident thereto, including such closely related products as electromyographs, cardiac telemetry systems and electrocardiogram machines, would not be likely to cause confusion.



 In this regard, we further note that the respective goods of the parties are sophisticated medical equipment which would be selected with great care by purchasers familiar with the source or origin of the products. See In re N.A.D. Inc., 754 F.2d 996, 224 USPQ 969, 971 (Fed.Cir.1985). Buyers of the parties' goods, as well as potential customers for the products, plainly are highly educated, sophisticated purchasers who know their equipment needs and would be expected to exercise a great deal of care in its selection.



 Given the deliberation involved in determining the suitability of particular medical instruments for specific patient care applications, and since customers and prospective purchasers typically deal directly with the parties in making their purchasing decisions, we believe that the parties' marks are not so similar that confusion as to the origin or affiliation of their medical instruments would be likely to occur.



  *6 Decision: The opposition is dismissed.



J.D. Sams



R.L. Simms



G.D. Hohein



Members, Trademark Trial and Appeal Board



FN1. Ser. No. 73/767,363, filed on December 5, 1988, which alleges dates of first use of October 21, 1988. The drawing of the mark is lined for the colors "blue" and "gray".



FN2. Reg. No. 862,308, issued on December 24, 1968; first renewal. The registration sets forth a date of first use anywhere of January 31, 1966 and a date of first use in commerce of April 22, 1966 for "electrical systems, instruments, components, and apparatus (for example, amplifiers, power supplies, transducers, probes and electrodes, transformers, solid state circuits and components, waveguide-to-coaxial adapters, coaxial connectors, and cables)" in International Class 9; recites dates of first use of March 26, 1965 for "systems, instruments, and apparatus used for analysis, synthesis, counting, measuring, data acquisition and processing, detection, inspection, testing, display, recording, or standards purposes (for example, gas chromatographs, distortion analyzers, spectrum analyzers, frequency synthesizers, counters, ammeters, ohmmeters, impedance meters, voltmeters, power meters, frequency meters, SWR meters, ratio meters, microwave noise figure meters, frequency measurement instrumentation, quartz thermometers, data acquisition and handling systems, calculators, computers and data processing systems, test equipment for locating faults in power or telephone cables, signal sources, mixers, modulators, attenuators, coaxial and waveguide instrumentation, oscilloscopes, plotters and recorders, and time standards) and accessories (for example, column materials and backflush valves for use with chromatographic columns, cameras for use with oscilloscopes, and carts for mobilizing test equipment) used with these systems, instruments, and apparatus" in International Class 9; and lists a date of first use anywhere of April 22, 1966 and a date of first use in commerce of May 27, 1966 for "medical systems, instruments, and apparatus used for research, diagnostic or therapeutic purposes (for example, cardiological instruments, blood chemistry instruments, stethoscopes, metabolism testing instruments, patient monitoring and recording systems, resuscitative instruments, and transducers, electrodes, preamplifiers, oscillographic recorders, magnetic tape recorders, and data displays for use in physiological measurements or recording and displaying physiological phenomena)" in International Class 10. The drawing is lined for the color "blue," but color is not claimed as an essential feature of the mark.



FN3. Reg. No. 1,116,835, issued on April 24, 1979; combined affidavit §§ 8 and 15. The registration sets forth dates of first use of January 1941 for "computers, calculators and other data handling and processing apparatus; programs for computers and calculators; magnetic cards, tapes and discs; video and audio recordings; photographic cameras for use with oscilloscopes; scientific surveying, electrical, electronic, optical, signalling and measuring apparatus, components and instruments and semiconductor devices" in International Class 9; recites dates of first use of May 27, 1966 for "medical instruments and apparatus used for research, diagnostic or therapeutic purposes--namely, monitoring, recording, cardiovascular, cardiographic, heart stimulating, resuscitating, respiratory, perinatal, neonatal and diagnostic radiological instruments and systems" in International Class 10; lists dates of first use of October 9, 1957 for "timepieces--namely, clocks and watches" in International Class 14; states dates of first use of May 1941 for "newsletter and technical periodicals, pamphlets and books, catalogs, reprints of articles, data sheets, product and system application notes, technical bulletins, pens for recording apparatus, chart and recording papers, and product and system operating and service manuals, all of said goods relating to electrical, measuring, scientific, computing and medical equipment and stationery--namely, bond paper having a specific watermark" in International Class 16; indicates dates of first use of November 1943 for "calibration, maintenance, installation, and repair of electronic, data processing, medical and analytical equipment" in International Class 37; and reveals dates of first use of September 1949 for "production of video and audio recordings for others; seminars and training courses in the fields of science, engineering, health care and business" in International Class 41.



FN4. Reg. No. 1,474,656, issued on February 2, 1988. The registration sets forth dates of first use of August 1971 for "electrocardiograph sensor adhesive materials, transmission gels, electrolytes, cremes, lotions, pastes, and contact fluids" in International Class 1.



FN5. Applicant has also alleged, as a "separate and special defense," that opposer's rights in its "HP" marks "are limited and defined by other registrations issued by the United States Patent Office" to two third parties. However, since such defense was not pursued at trial or discussed in the briefs, no further consideration will be given thereto.



FN6. Opposer, noting that the transcript of Dr. Kondraske's trial deposition, which was taken on January 31, 1991, was not submitted to the Board until "almost six months" later on June 14, 1991, has objected in its reply brief to the testimony and exhibits, with the exception of the portions thereof relied upon by opposer in its main brief, on the basis that the transcript and exhibits were not promptly filed with the Board as required by Trademark Rule 2.125(c). While opposer is correct that such rule requires that a transcript and the exhibits thereto "shall be filed promptly with the ... Board," the standard is a flexible one and, as a practical matter, means that a transcript and the exhibits thereto are considered to have been promptly filed if they are submitted at any time prior to the final hearing of the case by the Board. Since the transcript and exhibits thereto were filed with applicant's brief on the case, and thus were submitted prior to the final hearing of the case, they are considered to have been promptly filed with the Board. Although opposer claims that it has been prejudiced inasmuch as, prior to the filing and serving of its main brief, it had no knowledge that the entire trial deposition would become part of the record, the proper course would have been to assume that the deposition would be filed and would become part of the record since Trademark Rule 2.123(h) mandates that "[a]ll [trial] depositions which are taken must be duly filed in the Patent and Trademark Office". At any rate, opposer had a copy of the transcript and exhibits, having been timely served by applicant with a copy thereof in accordance with Trademark Rule 2.125(a), long before its main brief was due and its remedy, if it suspected that the transcript and exhibits might not be filed with the Board, would have been to request an extension of time to file its main brief, as authorized by Trademark Rule 2.125(a). Opposer's objection is thus not well taken and is accordingly overruled.

 Opposer, in its reply brief, has also noted that the corrections to Dr. Kondraske's trial deposition were served with the filing of the transcript and exhibits thereto on June 14, 1991 and that a copy of the corrections was sent to counsel for opposer by "UPS" on the same date but was not received until June 19, 1991, which was less than two weeks prior to the due date of the reply brief. Pointing out that Trademark Rule 2.125(b) requires that "[t]he party who takes testimony is responsible for having all errors in the transcript and all errors of arrangement, indexing and form of the transcript corrected, on notice to each adverse party, prior to the filing of one certified transcript with the ... Board," opposer has additionally objected to the testimony and exhibits comprising Dr. Kondraske's deposition, with the exception of the portions thereof relied upon by opposer in its main brief, on the ground of applicant's failure to comply with Trademark Rule 2.125(b). Opposer claims that at no time prior to filing its main brief and only a few days prior to filing its reply brief was it ever advised as to any changes in the deposition and that it was therefore prejudiced. However, as noted above, opposer's remedy in such a situation, as provided by Trademark Rule 2.125(a), lies in requesting an extension of its briefing periods rather than having the Board not consider the evidence. In view thereof, and inasmuch as applicant, as a practical matter, has substantially complied with Trademark Rule 2.125(b), opposer's additional objection is overruled.

 Finally, in its reply brief, opposer notes with respect to Dr. Kondraske's trial deposition that "many of the portions relied upon by Applicant [in its brief] were objected to at the time of the testimonial deposition and Opposer repeats and realleges all such objections to such portions". However, inasmuch as opposer's objections, most of which were on the grounds that the evidence is irrelevant and immaterial, are plainly not well taken, the objections (with the sole exception of the objection to a document not provided in response to a request for production) are hereby overruled.



FN7. Inasmuch as applicant, in its brief, has not objected to opposer's reliance on the additional registrations and has treated them as being part of opposer's case-in-chief, the pleadings are hereby deemed to be appropriately amended in accordance with Fed.R.Civ.P. 15(b) to include the following additional registrations: (i) Reg. No. 614,803, issued on October 25, 1955 and renewed, which sets forth dates of first use of January 1941 for the mark "HP" and design, as illustrated at left,




for "instruments used for measuring or testing purposes--namely, attenuators, volometer mounts, bridges, crystal detectors, directional couplers, electronic counters, electronic frequency meters, frequency and modulation monitors, frequency converters, harmonic wave analyzers, low pass filters, microwave detector mounts, microwave power meters, microwave probes, microwave slotted sections, microwave terminations, microwave thermistor mounts, microwave test sets, noise and distortion analyzers, oscillators, probe carriages, pulse generators, ratio meters, scalers, secondary frequency standards, signal generators, square wave generators, standing wave indicators, tachometer generators, thermistor mounts, voltage dividers, voltmeters, waveform analyzers, attenuators, waveguide moving loads, waveguide phase shifters, and waveguide tuners" in prior U.S. Class 26; and (ii) Reg. No. 850,251, issued on June 4, 1968 and renewed, which sets forth a date of first use anywhere of February 25, 1965 and a date of first use in commerce of February 26, 1965 for the mark "HP" and design, as depicted at right,




for "technical periodicals, pamphlets and books, reprints of articles, data sheets, product and system application notes, technical bulletins, and product and system operating and service manuals, all of said goods relating to electrical, measuring, scientific, and medical equipment" in International Class 16. With respect to the latter registration, the lining in the drawing is part of the mark and does not represent color.



FN8. For example, in comparing the use of applicant's goods for human performance testing with opposer's patient-monitoring equipment, Dr. Kondraske testified at trial that: "In most human performance tests, you would have a patient either sitting, standing, walking, and--or moving some body part while they're sitting in response to either some light coming on or, actually, just in response to a task command which is issued by the test administrator. Whereas in patient-monitoring, again, the patient is not really involved an active way other than--it's more like eavesdropping on what's happening to their system components".



FN9. The manual states in pertinent part that:


   Electromyography is the study of the electrical activity present in muscles and nerves. The techniques of electromyography are used to:

 (1) Diagnose certain muscular abnormalities

 (2) Find the site and/or origin of these muscular abnormalities

 (3) Diagnose certain nerve abnormalities

 (4) Find the site and/or origin of these nerve abnormalities

 (5) Detect signs of nerve regeneration

 (6) Detect malingerers.



FN10. As opposer points out in its reply brief:

   By applying appropriate signals (either from an external source or the body itself) to a particular body part[,] the muscle reactions of that body part are detected and/or measured. Section 5 of Exhibit 67 describes ... the detailed procedures for utilization of the model 1510A Electromyograph to measure voluntary muscle voltage, motor nerve conduction, motor nerve conduction velocity, sensory nerve conduction, sensory nerve conduction velocity, and "H" reflex response. All of these tests, as described in detail, pertain to the musculoskeletal aspects of the human and neurologic or neuromotor aspects of the human.



FN11. Mr. Emery further testified with respect thereto that:

   Q: Would any of the Hewlett-Packard medical products be utilized by physical therapists?

   A: Yes, in the field of rehabilitation.

   Q: Would they be used by occupational therapists?

   A: Possibly, yes.

   Q: Would they be utilized by neurologists?

   A: Yes, they would be.


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