88195064 (T.T.A.B. Jun. 7, 2021)

Built Wright Construction

Trademark Trial and Appeal BoardJun 7, 2021

88195064 (T.T.A.B. Jun. 7, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: June 7, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Built Wright Construction _____ Serial Nos. 88195064 and 88195069 _____ B. Todd Patterson of Patterson & Sheridan, LLP for Built Wright Construction. Marco Wright, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Cataldo, Wellington, and Heasley, Administrative Trademark Judges. Opinion by Wellington, Administrative Trademark Judge: Built Wright Construction (“Applicant”) seeks registration on the Principal Register of the standard character mark BUILT WRIGHT CONSTRUCTION and the following mark: Serial Nos. 88195064 and 88195069 - 2 - .1 Applicant seeks registration of both marks in connection with “construction services, namely, general contracting for commercial construction and construction management” in International Class 37. Applicant has disclaimed the term CONSTRUCTION in each application. The Examining Attorney refused registration of each of Applicant’s marks under Section 2(d) of the Act, 15 U.S.C. § 1052(d), based on a likelihood of confusion with the following two registered marks, owned by different entities: 1. Registration No. 5737378 (“Reg. ’378”) for the mark (CONSTRUCTION CO disclaimed) for “general building contractor services” in International Class 37;2 and 2. Registration No. 2710810 (“Reg. ’810”) for the stylized mark: 1 Application Ser. No. 88195064, for the standard character mark, was filed on November 15, 2018, under Section 1(a) of the Trademark Act (“the Act”), 15 U.S.C. § 1051(a), based on an allegation of first use of the mark in commerce on January 30, 1999. Application Ser. No. 88195069, for the stylized with design mark, was filed on the same date under Section 1(a) of the Act, based on an allegation of first use of the mark in commerce on January 30, 2016. 2 Issued on April 30, 2019. The colors red and white are claimed as features of the mark. Serial Nos. 88195064 and 88195069 - 3 - for “construction and repair of buildings” services in International Class 37.3 Applicant appealed both refusals. The appeals have been fully briefed. For the reasons set forth below, we affirm the refusals to register. I. Appeals Consolidated The appeals involve common questions of law and fact, and the records are substantially similar. Accordingly, we consolidate the appeals and decide them in this single decision.4 See in re S. Malhotra & Co., 128 USPQ2d 1100, 1102 (TTAB 2018); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1214 (2020). II. Likelihood of Confusion Our determinations under Section 2(d) involves analyses of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the relatedness of the goods and/or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential 3 Issued on April 29, 2003. 4 Unless otherwise specified, all TTABVUE and TSDR citations refer to the docket and electronic file database for Application Serial No. 88195064. All citations to the TSDR database are to the downloadable .pdf version of the documents. Serial Nos. 88195064 and 88195069 - 4 - characteristics of the goods [or services] and differences in the marks.”). We discuss below these and other relevant factors. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board considers each DuPont factor for which there is evidence and argument). A. Relatedness of the Services; Trade Channels We begin our analysis with the DuPont factor that involves a comparison as to the “similarity or dissimilarity and nature of the goods or services as described in an application or registration….” DuPont, 177 USPQ at 567. It is “not necessary that the goods [or services] be identical or even competitive to support a finding of a likelihood of confusion.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the respective goods [or services] are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.’” Id. Here we find Applicant’s services are legally identical to both of the registrants’ services because, although they are worded slightly differently, they cover essentially the same services. Specifically, Applicant’s recitation of services, “construction services, namely, general contracting for commercial construction and construction management,” is encompassed by the recitation “general building contractor services” in Reg. ‘378. In other words, general building contractor services are sufficiently Serial Nos. 88195064 and 88195069 - 5 - broad to include general contracting services involving the construction of commercial buildings. Similarly, Applicant’s “general contracting for commercial construction” services are encompassed by the broader recitation of services in Reg. ‘810, “construction and repair of buildings.” In this regard, we note that a “general contractor” is defined as a “person or business entity that contracts to be in charge of a building project usually involving the use of subcontractors.”5 Thus, the registrant’s “construction of buildings” services would include acting in the role of general contractor for the construction of commercial buildings. The third DuPont factor involves the trade channels for the involved services. Here, because the services in the cited registrations overlap with or are otherwise legally identical to Applicant’s, we presume that these services travel through at least some of the same channels of trade to the same classes of purchasers. See Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d 1022, 1028 (TTAB 2011) (where the services were legally identical, “the marketing channels of trade and targeted classes of consumers and donors are the same”); see also In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (finding Board entitled to rely on this legal presumption in determining likelihood of 5 We have taken judicial notice of the definition of the term “General contractor.” Merriam- Webster.com Legal Dictionary, Merriam-Webster, www.merriam-webster.com. Accessed 1 Jun. 2021. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983) (Board may take judicial notice of dictionary definitions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006) (Board takes judicial notice of online dictionaries that exist in printed format or regular fixed editions). Serial Nos. 88195064 and 88195069 - 6 - confusion). In other words, an entity in need of commercial construction services may retain Applicant’s services or Registrants’ services. Accordingly, the DuPont factors regarding the relatedness of the services and their trade channels strongly favor a finding of likelihood of confusion. B. Alleged Weakness of the Cited Marks Before we compare Applicant’s mark with the two cited registered marks, we address Applicant’s arguments that the “elements of the marks are commercially and conceptually weak,” so the cited registrations “should be afforded a narrow scope of protection because relevant consumers are unlikely to associate the mark elements at issue with the Registrants’ marks.”6 In support, Applicant submitted the following Internet evidence: 1. Facebook page for “Built Right Affordable Homes and Structures” (Built Right LLC), identifying their locations in Kirbyville, MO and Harrison, AR;7 2. Yelp! website listing for “Build Right Construction,” identifying the business location in Santa Clarita, CA;8 3. Website listing for “Build Right Construction LLC,” identifying the business location in Edmond, OK;9 4. Website listing for “Built Right Construction LLC,” identifying the business location in Savanna, OK;10 5. Website listing for “Build Right Construction,” identifying the business in Granbury, TX;11 6 6 TTABVUE 6. 7 August 20, 2019 Response, TSDR pp. 24-26. 8 Id. at pp. 27-30. 9 Id. at pp. 31-37. 10 Id. at pp. 38-39. 11 Id. at pp. 40-47. Serial Nos. 88195064 and 88195069 - 7 - 6. Website listing for “Build Right Construction LLC,” identifying the business in Onalaska, WI. The company is described as a “general contractor” and offers various construction and remodeling services, including “new building construction … bathroom remodeling … barn construction … residential remodeling”;12 7. Website listing for “Build Rite Construction TX,” identifying the business in Mabank, TX. They advertise themselves as “contractors” offering various construction services, including “commercial construction … decks … add ons … residential construction … kitchen remodeling”;13 8. Website listing for “Built Rite Custom Homes,” without identifying the business location. They advertise themselves as “new construction … single- family homes”;14 9. Website listing for “Built-Rite Builders, LLC” identifying the business in Weatherford, TX. They advertise “construction services” “new construction … single-family homes”;15 10. Website listing for “Bilt Rite Construction” identifying the business in Melissa, TX. They advertised as holding “building contractors, fence/wall, general” licenses and offering construction services such as “addition[s] … warehouse new construction … retail new.”16 In addition, for purposes of showing weakness, Applicant points to the coexistence on the register of not only the two cited registrations but also the following two registered marks: 12 Id. at pp. 48-56. 13 Id. at pp. 57-58. 14 Id. at pp. 59-60. 15 Id. at pp. 61-65. 16 Id. at pp. 66-73. Serial Nos. 88195064 and 88195069 - 8 - 1. (CONSTRUCTION CORP and COMMERCIAL GENERAL CONTRACTORS SINCE 1982 disclaimed) for “general commercial contracting …; … construction management and supervision, building construction, … remodeling and renovation of buildings, churches, retail service centers, apartments, condominiums, townhouses and commercial building projects” in International Class 37;17 and 2. (CLOSETS disclaimed) for “installation of closet systems, organization systems, pantry and laundry rooms systems, shelving, drawers, cabinets, clothes rods” in International Class 18 For purposes of likelihood of confusion analysis, determinations as to the strength or weakness of a mark is not a binary question or an “an all-or-nothing measure.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (Fed. Cir. 2017). Rather, it “varies along a spectrum from very strong to very weak.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675-76 (Fed. Cir. 2015) (internal citations 17 Registration Nos. 3257951 issued on July 3, 2007; renewed. The same owner of this registration also owned the (now cancelled) Registration No. 3688594 for the mark BUILDRITE CONSTRUCTION.COM (stylized with design) for “construction services, namely, planning, laying out and custom construction of commercial buildings and interior finishes and renovations to commercial projects.” The registration was cancelled on June 5, 2020. We further note these two registrations were originally cited by the Examining Attorney as bars to registration of Applicant’s mark and copies thereof were made of record with the February 20, 2019 Office Action; the Examining Attorney expressly withdrew these two registrations as bases for refusal in the April 2, 2020 Office Action. 18 Registration No. 4931464 issued on April 5, 2016. Serial Nos. 88195064 and 88195069 - 9 - omitted). “A very strong mark receives a wider latitude of legal protection in the likelihood of confusion analysis.” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017). On the other hand, “The weaker [the registrant’s] mark, the closer an applicant’s mark can come without causing a likelihood of confusion and thereby invading what amounts to its comparatively narrower range of protection.” Juice Generation, 115 USPQ2d 1676 (internal citations omitted). Otherwise, a mark on the Principal Register without a claim of acquired distinctiveness and not shown to be weak or strong receives “the normal scope of protection to which inherently distinctive marks are entitled.” Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1347 (TTAB 2017). The Board generally finds weakness, if any, in a mark for two reasons. First, the mark may be conceptually weak because it conveys a suggestive meaning as to the goods or services; we thus “evaluate [the mark’s] intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-arbitrary (or fanciful) continuum....” In re Davia, 110 USPQ2d 1810, 1815 (TTAB 2014). Second, and in addition to any conceptual weakness, the sixth DuPont factor looks to marketplace weakness and involves a consideration of “[t]he number and nature of similar marks in use on similar goods” or services. Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). This factor potentially affects our analysis of the similarity or dissimilarity of the marks because the “purpose of introducing evidence of third-party use is to show that customers have become so conditioned by a plethora of such similar marks Serial Nos. 88195064 and 88195069 - 10 - that customers have been educated to distinguish between different [such] marks on the bases of minute distinctions.” Id. (quoting Palm Bay Imps., 73 USPQ2d at 1694 (internal quotation and quotation marks omitted)). Weakness of the Mark in Cited Reg. No. ’810: The evidence shows that the combination of the terms—BUIL[T/D] and RIGHT— is suggestive of a positive and desirable quality of the involved services. That is, the terms’ plain meanings help suggest that the building contractor and construction services will be done properly, i.e., “will be built right” or “will build right.”19 Indeed, the Internet evidence submitted by Applicant shows at least one company purposely intends to convey this meaning by incorporating the slogan: “If it’s Built Right, it is built right.”20 Because the combination of the terms BUIL[T/D] and RIGHT conveys a laudatorily suggestive meaning, this presents a level of inherent or conceptual weakness in the mark . As to the sixth DuPont factor, the ten examples of third-parties using marks containing the terms BUIL[T/D, or the phonetic equivalent BILD, followed by RIGHT or RITE, in connection with construction and contractor services, is probative. They help demonstrate some marketplace weakness, showing that such marks are not unique, as others have adopted the same or similar marks in connection with the 19 Right” may be defined as “being in accordance with what is just, good, or proper right conduct” or as “suitable, appropriate.” A copy of this definition, taken from Merriam-Webster online dictionary (www.merriam-webster.com/dictionary/wright), was submitted by Applicant with its August 20, 2019 response, TSDR pp. 86-87. 20 August 20, 2019 response, TSDR p. 38. Serial Nos. 88195064 and 88195069 - 11 - same services. Nevertheless, unlike cases in which extensive evidence of third-party use and other evidence in the record was found to be “powerful on its face” because “a considerable number of third parties use [of] similar marks was shown,” Juice Generation, 115 USPQ2d at 1674, Applicant’s showing of ten others using the similar marks falls short of the volume of evidence found convincing in Juice Generation or that in Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). In sum, we find some conceptual and marketplace weakness in this cited registered mark. Accordingly, this weakness is a factor weighing against finding confusion likely between this mark and Applicant’s mark. Weakness of the Mark in Cited Reg. No. ’378: Applicant posits that the term “Wright,” as used in its mark and one of the cited registrations, may be understood by consumers as referring to the surname of persons affiliated with the sources of the services. Indeed, Applicant suggests that Applicant, itself, is associated with someone having the surname “Wright.”21 In support, Applicant submitting a definition of the term “[W/w]right,” showing that it is a surname shared by several famous historical figures, e.g., Frank Lloyd Wright, the Wright brothers, etc., and that “wright” is also defined as a “worker skilled in the manufacture especially of wooden objects—usually used in combination [,e.g.,] 21 In its brief, Applicant states that its mark is a “play on words, in view of Applicant’s surname.” 6 TTABVUE 10. We note, however, that Applicant, itself, is a corporate entity. Serial Nos. 88195064 and 88195069 - 12 - shipwright or wheelwright.22 Given these meanings, Applicant asserts that “WRIGHT can refer to a person’s name …, which gives the impression that someone with a name Wright provides, for example, woodworking skilled services.”23 The mere fact that WRIGHT is a surname does not necessarily result in the term being inherently weak. Wet Seal Inc. v. FD Management Inc., 82 USPQ2d 1629, n.20 (TTAB 2007) (“The fact that ARDEN is a surname does not automatically render the mark weak or entitled to only a narrow scope of protection.”). Applicant has not submitted any evidence of use or registration of marks by others that combine the terms BUILT and WRIGHT, or of WRIGHT by itself, in connection with construction services. Even if “Wright” is a recognized surname and there are historical figures with this name, we cannot assume that it is weak. To the extent that consumers perceive the “skilled woodworker” meaning of the term “wright,” upon viewing the combination of the terms BUILT and WRIGHT, this may translate to some weakness, albeit minimal, in the mark in Reg. No. ’378. We reiterate that the record is devoid of any evidence of use or registration by others of marks combining the terms BUILD and WRIGHT. We thus cannot find any commercial weakness in the registered mark. 22 Copy of definition taken from Merriam-Webster online dictionary (www.merriam- webster.com/dictionary/wright), attached to Applicant’s August 20, 2019 response, TSDR. pp. 74-77. Applicant also argues that “Wright” may also be understood as a reference to “Wright City, Texas” or “Wright, Texas.” 6 TTABVUE 10. We do not find this likely given the relative obscurity of these locations. 23 Id. Serial Nos. 88195064 and 88195069 - 13 - Accordingly, we find minimal conceptual weakness and no marketplace weakness in the cited Reg. No. ’378 mark, and we find this factor weighs only slightly against finding confusion likely. C. Similarity of the Marks We turn now to the first DuPont factor, involving a comparison of the marks “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d, 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). The test assesses not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the source of the goods offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d 1721; see also Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012). We also keep in mind that, as applicable to this proceeding, “when marks would appear on virtually identical goods or services, the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). Serial Nos. 88195064 and 88195069 - 14 - 1. Comparison with Mark in Reg. ’378 In comparing this registered mark with Applicant’s two marks, we find them extremely similar. Again, Applicant’s standard character mark is BUILT WRIGHT CONSTRUCTION and its second mark is . Thus all marks share the identical wording BUILT WRIGHT CONSTRUCTION and, in terms of sound, they will be pronounced the same, but for the term CO at the end of registrant’s mark. Applicant’s marks are also visually similar to the registered mark. With respect to Applicant’s standard character mark, we must consider that it can be displayed in any font style, color, and size, including the same stylization and red/white color scheme of registrant’s mark. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186- 87 (TTAB 2018). As to Applicant’s stylized mark vis-à-vis registrant’s stylized mark, the respective fonts and designs are points of difference, but they not very unique or distinctive and thus do little to distinguish the marks. Rather, consumers encountering these marks are more likely to be impressed by the wording, particularly the more prominent, and non-generic, term BUILT WRIGHT in each of the marks. In terms of connotation or commercial impressions conveyed by the marks, we also find them to be extremely similar. Regardless of whether consumers understand the Serial Nos. 88195064 and 88195069 - 15 - term WRIGHT as a surname or referring to a “skilled worker,” the marks will convey the same meaning. Even should consumers perceive both meanings, and a play on the two meanings, this would only bring the marks closer in meaning because the same double-entendre is applicable to Applicant’s marks and the registered mark. Here, we find both of Applicant’s marks are very similar to the cited mark in Reg. ’378. Accordingly, this DuPont factor weighs strongly in favor of likely confusion between the registered mark and Applicant’s marks. 2. Comparison with Mark in Reg. ‘810 We find this registered mark is similar to each of Applicant’s marks. The dominant element of Applicant’s marks is the wording BUILT WRIGHT, which is aurally identical the registered mark. The word CONSTRUCTION in Applicant’s mark is a point of difference but is highly descriptive or generic for the involved services and thus has no real significance for purposes of distinguishing the marks. In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (disclaimed matter that is descriptive of or generic for a party’s goods is typically less significant or less dominant when comparing marks); see also Aquitaine Wine USA, 126 USPQ2d at 1188 (“consumers often have a propensity to shorten marks” when ordering goods or services). In terms of appearance, there is also little difference between Applicant’s standard character mark and registrant’s mark; again, we must anticipate that Applicant’s standard character mark will be displayed in the same font employed in registrant’s mark. In re Aquitaine, 126 USPQ2d 1186-87. Although we cannot make the same Serial Nos. 88195064 and 88195069 - 16 - assumption with Applicant’s stylized mark vis-à-vis registrant’s mark, we find again the stylizations employed in Applicant’s mark and registrant’s mark to be not so unique as to make a strong impression on consumers. As to the commercial impressions and connotations of the marks, we find them to be slightly different. As discussed, Applicant’s mark is likely to connote a surname that may also be a play on words, whereas Applicant’s mark is more likely to take on only the suggestive connotation of a construction project being “built right” (properly). We find Applicant’s marks are overall more similar than not with the cited mark in Reg. ’810. Accordingly, this DuPont factor weighs in favor of likely confusion between the registered mark and Applicant’s marks. D. Sophistication of Consumers Under the fourth DuPont factor, we consider “[t]he conditions under which and buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ at 567. Applicant makes the argument that confusion is not likely because the “services offered by the Applicant and those offered by the owners of the cited registrations are in the construction industry, which is not prone to ‘impulse’ purchases but rather purchases made after careful consideration.”24 Applicant further contends that “[t]he services at issue are typically procured through a process involving watchful eyes of multiple individuals and the prospect that oversights will occur during every stage of procurement regarding source provision is slim.”25 24 6 TTABVUE 12. 25 Id. Serial Nos. 88195064 and 88195069 - 17 - However, there is no evidence to support Applicant’s assertions. Moreover, other than Applicant’s inclusion of the term “commercial,” there is no limitation in Applicant’s or registrants’ recitations of services as to the size of construction projects for which they offer their services. In other words, Applicant and the registrants may offer construction and general contracting for smaller commercial construction projects that would not necessarily involve such significant expenditures or be a “process involving watchful eyes of multiple individuals;” rather, the services may be offer to smaller commercial entities like a sole proprietorship or ‘mom and pop’ establishments. We must anticipate the least-sophisticated consumer with no special knowledge who would not necessarily exercise heightened care. See Stone Lion Capital Partners, L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (“Board precedent requires the decision to be based ‘on the least sophisticated potential purchasers.”) (quoting Gen. Mills, Inc. v. Fage Dairy Proc. Indus. S.A., 100 USPQ2d 1584, 1600 (TTAB 2011), judgment set aside on other grounds, 2014 WL 343267 (TTAB 2014)). The fact that the consumers in this case may be business owners and are sophisticated or knowledgeable in their particular field does not necessarily mean that they are sophisticated or knowledgeable in the field of construction and trademarks or immune from source confusion. See In re Cynosure, Inc., 90 USPQ2d 1644, 1647 (TTAB 2009). Even careful purchasers can be confused as to source where similar marks are used in connection with closely related or the same services. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 Serial Nos. 88195064 and 88195069 - 18 - F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)) (“Human memories even of discriminating purchasers ... are not infallible.”). Accordingly, this DuPont factor is neutral. E. Applicant’s Reliance on “Geographic Considerations” Applicant refers to “geographic considerations” and argues:26 …a sophisticated buyer would also pay attention to the location(s) in which companies were licensed to perform the desired services. Since consumers of the relevant services would be looking to have the commercial construction services completed at a specific geographic location, it is unlikely the consumers would look outside of that locality for a service provider. Accordingly, a buyer looking for a company licensed in Texas to perform construction services, namely, general contracting for commercial construction and construction management services would not be confused by a residential construction company that advertises as building homes in Asheville, NC, [referring to the owner of Reg. No. ’378], nor by companies whose services are advertised as being offered only in WA, OR, and ID [referring to the owner of Reg. No. ’810]. Applicant’s argument fails, first because it seeks a geographically unrestricted registration, and second because the cited registrations are also unrestricted, according their registrants presumptive exclusive rights to nationwide use of their marks in connection with the identified services under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b). It is not relevant that Applicant and registrants offer their services in different states. Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983) (“Applicant seeks a geographically unrestricted registration under which it might expand throughout the United States. Under these facts, it is not 26 Id. at 13-14. Serial Nos. 88195064 and 88195069 - 19 - proper, as the TTAB found, to limit our consideration to the likelihood of confusion in the areas presently occupied by the parties. Section 7(b) of the Trademark Act of 1946, 15 U.S.C. § 1057(b), creates a presumption that the registrant has the exclusive right to use its mark throughout the United States. Therefore, the geographical distance between the present locations of the respective businesses of the two parties has little relevance in this case.”). Accordingly, our likelihood of confusion analysis in this proceeding is unaffected by any disparate geographic use of the marks. III. Conclusion With respect to the mark in Reg. ’378, , we find Applicant’s use of the very similar marks, BUILT WRIGHT CONSTRUCTION and , in connection with legally identical general contracting construction services offered in the same trade channels to the same classes of purchasers is likely to cause confusion. We make this conclusion despite finding some conceptual weakness in the shared wording of the marks. With respect to the mark in Reg. ’810, , we find that Applicant’s use of its marks, BUILT WRIGHT CONSTRUCTION and , are not likely to cause confusion. We make this conclusion despite the marks’ use in connection with legally identical construction-related Serial Nos. 88195064 and 88195069 - 20 - services offered in the same trade channels to the same classes of purchasers. The scope of protection for the registered mark is curtailed due to its inherent and commercial weakness, and given that Applicant’s marks convey slightly different commercial impressions, we find confusion is not likely between these marks. Decision: The refusals to register Applicant’s marks are affirmed, but only with Registration No. 5737378 serving as a basis for the refusals.