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Bottom line: The Board found that “medical respirators and ventilators” in Class 10 is not related to “bracelets for medical purposes” in Class 5.

The applicant filed an application for ASTRAL designating “medical respirators and ventilators” in Class 10.  The Examiner cited a prior mark “transliteration of ASTRAL in katakana” designating “bracelets for medical purposes” in Class 5.

As to the marks, the Board not surprisingly found the two marks similar as they share the sound in common.

As to the goods, the Board made an exceptional decision in this case.  According to the Examination Guidelines of Goods and Services, “medical apparatus and instruments” in Class 10 and “bracelets for medical purposes” in Class 5 are presumed similar under similarity code 10D01.  The examiner reasoned that “medical respirators and ventilators” are subordinate items to “medical apparatus and instruments”, and so these goods are similar to “bracelets for medical purposes” in accordance with the Guidelines.

However, this presumption can be rebutted as the Guidelines also says:

…, it should be noted that in examining the similarity of goods or services specifically and individually, or based on the changing actual circumstances of business and economies, there could be some cases in which goods and services that are presumed to be similar according to these guidelines might be recognized to be dissimilar; while goods and services that are not deemed to be similar based on these guidelines might in fact be regarded as similar.

And here is the case.  The Board observed that:

-　“Medical respirators and ventilators” are designated as controlled medical devices requiring special maintenance by the Minister of Health, Labour and Welfare, and categorized as highly controlled medical devices.  The manufacturers and distributors of such products are sophisticated with professional expertise and experience, and the consumers are generally medical personnel having specialized knowledge and skill.  The sale of such products will be made by authorized distributors, and maintenance and repair will also be made by those who have specialized knowledge and skill.
-　On the other hand, “bracelets for medical purposes” are indeed for medical use, but they are manufactured and sold by manufacturers of health care equipment or those in precious metal industry in general.  These goods are sold over-the-counter or by mail order, and primary consumer will be the general consuming public.
-　In view of the difference in the production, marketing, consumer and intended purpose of the products, “medical respirators and ventilators” and “bracelets for medical purposes” are not related to each other, and there is no likelihood of confusion when an identical or similar mark is used for these goods.

And so the Board reversed the refusal, and the application for “ASTRAL” was granted for registration.

 

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