FOUNDATIONAL MEDICINE REVIEW Confusable With FOUNDATION MEDICINE for Medical Publications, Says TTAB

The Board sustained this opposition to registration of FOUNDATIONAL MEDICINE REVIEW for “journals in the field of medicine” and “providing on-line non-downloadable articles in the field of medicine and health care” [MEDICINE REVIEW disclaimed], finding confusion likely with Opposer’s registered mark FOUNDATION MEDICINE for the provision of medical data and information to healthcare professionals [MEDICINE disclaimed]. The Board found the involved goods and services to be legally identical and the marks to be highly similar – a solid foundation for its ruling. Foundation Medicine, Inc.v.Albert F. Czap, Opposition No. 91243763 (September 18, 2020) [not precedential] (Opinion by Judge Michael B. Adlin).

Opposer Foundation Medicine provides information under its marks not only to researchers, healthcare providers and biopharmaceutical companies, but also to “patients and families of patients who may have been diagnosed with cancer .” Applicant Czap, claimed that his goods and services “are offered to the public for no cost to consumers” via his website and via social media.

Czap argued that Foundation’s informational services are narrowly targeted to genomic testing and diagnostic services, but there was no such limitation in Foundation’s registrations. His argument regarding sophistication of consumers was shot down for a similar reason, the Board noting that it must consider the least sophisticated consumer in its Section 2(d) analysis.

As to the marks, the Board found little to distinguish the word FOUNDATIONAL from the word FOUNDATION in appearance, sound or meaning. Moreover, even in Foundation’s word-plus-design mark, shown above, the word FOUNDATION is dominant.

In short, FOUNDATION MEDICINE (in both its standard character and design forms) and FOUNDATIONAL MEDICINE REVIEW are highly similar in appearance, sound, meaning and commercial impression, so much so that some consumers familiar with Opposer’s marks could even perceive Applicant’s as identifying one of Opposer’s publications.

Czap pointed to seven third-party registrations in an attempt to show that FOUNDATION is a weak formative, but the Board found them to be “qualitatively and quantitatively insufficient: “either the marks, or the goods or services, or both, are too different from Opposer’s mark and services for the third party registrations to be probative.”

The Board concluded that confusion is likely, and so it sustained the opposition.

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TTABlogger comment: Opposer Foundation Medicine is represented in this proceeding by Douglas Wolf, John L. Strand, and Ryan van Olst of Wolf Greenfield.