[E-trademarks] Medical Device

[Diane Gardner]

Hi Janice,

The term "medical device" has a specific, legal meaning, as defined in 21 CFR.  Yes - the different departments (FDA vis-à-vis PTO) can and do view and use information submitted to the other department. 

Why not just refer to it as "medical apparatus" in the trademark identification? If your application includes goods in Class 10, the USPTO will consider it "medical apparatus" based on the definition for the class heading (which is NOT the same thing as a "medical device").

Just as a point of interest, both of the following identifications appear in the ID Manual:

Medical device for detecting cancer
Medical apparatus for detecting cancer

I would avoid referring to the apparatus as a "medical device" if you're trying to avoid that designation under 21 CFR.

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Date: Fri, 29 Mar 2024 19:25:58 +0000
From: Janice Housey <jhousey at litmuslaw.com>
To: "For trademark practitioners. This is not for laypersons to seek
	legal advice." <e-trademarks at oppedahl-lists.com>
Subject: [E-trademarks] Description of mark in trademark application
	and the FDA
Message-ID:
	<SN4P222MB0464AA02435A56D98F5E6C27A23A2 at SN4P222MB0464.NAMP222.PROD.OUTLOOK.COM>
	
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I am curious if others have researched this issue.

If a party files a trademark application for words that describe it as a ?medical device for?..?, are there FDA implications?  That is, does the fact that you called it a medical device in the PTO preclude party from taking the position vis-?-vis the FDA that it is NOT a medical device.  (My understanding for this device is that it could be a medical device or it could also be used for other purposes that would not classify it- at least as to the FDA- as a medical device.)

Janice Housey
Litmus Law PLLC

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