88623677 (T.T.A.B. Sep. 10, 2021)

Polaris Executive Center, LLC

Trademark Trial and Appeal BoardSep 10, 2021

88623677 (T.T.A.B. Sep. 10, 2021)

This Opinion is Not a Precedent of the TTAB Mailed: September 10, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Polaris Executive Center, LLC d/b/a Genesis Village _____ Serial No. 88623677 _____ Arnold Braun of the Genesis Biotechnology Group, for Polaris Executive Center, LLC. James Hill, Trademark Examining Attorney, Law Office 115, Daniel Brody, Managing Attorney. _____ Before Bergsman, Lykos and Hudis, Administrative Trademark Judge Opinion by Lykos, Administrative Trademark Judge: Polaris Executive Center, LLC d/b/a Genesis Village (“Applicant”) seeks to register on the Principal Register the standard character mark GENESIS VILLAGE (“VILLAGE” disclaimed) for, as amended, “apartment and office rentals” in International Class 36.1 1 Application Serial Nos. 88623677 was filed on September 19, 2019 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming March 6, 2019 as the date of first use anywhere and in commerce. During prosecution, Applicant deleted “real estate development” in International Class 37 following a specimen refusal. Applicant’s standard character mark appears on the drawing page as “Genesis Village” but retains a claim as to standard characters and not special form. See Trademark Rule Serial No. 88623677 - 2 - Registration was refused under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the registered standard character mark GENESIS PARTNERS2 and the registered stylized mark displayed below,3 (“PARTNERS” disclaimed in each registration), both owned by the same entity for “real estate services, namely, managing real property” in International Class 36, that it is likely to cause confusion or mistake or to deceive. In an effort to circumvent the Section 2(d) refusal, during prosecution Applicant amended its International Class 36 services to the following:4 Apartment and office rentals but not including the following, real estate services, namely managing real property; real estate and real property services, namely managing real property; real estate, acquisition, agency 2.52(a), 37 C.F.R. § 2.52(a); see also In re Calphalon Corp., 122 USPQ2d 1153, 1158-61 (TTAB 2017) (applicant’s amendment of mark from SHARPIN to SharpIn did not transform mark from standard character to special form). Our references to Applicant’s mark in this opinion in all uppercase letters reflects the fact that a term registered as a mark in standard character format is not limited to any particular type case, font style, size, or color. Citations to the prosecution file refer to the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system and identify documents by title and date. Specific citations are to the page number of the TSDR records. References to the briefs and other materials in the appeal record refer to the Board’s TTABVUE docket system. 2 Registration No. 3256759 was registered June 26, 2007 on the Principal Register; renewed. 3 Registration No. 3254018 was registered June 19, 2007 on the Principal Register; renewed. Color is not claimed as a feature of the mark. 4 February 24, 2020 Response to Office Action. Serial No. 88623677 - 3 - and brokerage; real estate and real property services, namely, management and leasing. The Examining Attorney explained that Applicant’s proposed amendment was unacceptable because the proposed wording “real estate and real property services, namely managing real property; real estate, acquisition, agency and brokerage; real estate and real property services, namely, management and leasing” included services beyond the scope of those originally identified.5 Applicant rectified this by amending its International Class 36 services as originally stated.6 When the Section 2(d) refusal was made final, Applicant appealed and filed a request for reconsideration which was denied. The appeal is fully briefed. We affirm the refusal to register. I. Evidentiary Issue Before addressing the substance of this appeal, we consider the Examining Attorney’s objection to Applicant’s references in its appeal brief to third-party registrations and applications.7 During prosecution, on three separate occasions, Applicant submitted a listing instead of submitting copies of each registration or application showing current status and title from either the electronic records of the Office or the paper USPTO record: first, in its February 24, 2020 Office Action response; then, in its July 10, 2020 Office Action response as Exhibit 2; and finally, with its Request for Reconsideration dated January 18, 2021. Each time, the 5 March 18, 2020 Office Action. 6 August 10, 2020 Response to Office Action 7 Applicant’s Appeal Brief, pp. 17-18; 6 TTABVUE 18-19. Serial No. 88623677 - 4 - Examining Attorney advised Applicant that the mere listing of third-party registrations does not make the registrations of record.8 The Examining Attorney’s objection is sustained. The record in an application should be complete prior to the filing of an appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). The Examining Attorney apprised Applicant multiple times that the registrations were not properly made of record, yet Applicant chose to ignore the Examining Attorney’s admonitions. Hence, we give Applicant’s lists of third-party registrations no consideration. See In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018), aff’d mem., 777 F. App’x (Fed. Cir. 2019); In re Fiat Grp. Mktg. & Corp. Commc’ns S.p.A, 109 USPQ2d 1593, 1596 (TTAB 2014). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”) § 1208.02 (2021). II. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E. I. DuPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont factor for which there is evidence and argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). When analyzing these factors, the overriding concerns are not only to prevent buyer confusion as to the source of the services, but also to protect the 8 See Office Actions dated March 18, 2020, and August 4, 2020, and Denial of the Request for Reconsideration dated February 9, 2021. Serial No. 88623677 - 5 - registrant from adverse commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (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 characteristics of the goods and differences in the marks.”). We discuss these factors and others below. We concentrate our analysis on the registered standard character mark GENESIS PARTNERS identified in Registration No. 3256759 for “real estate services, namely, managing real property.” If likelihood of confusion is found as to this registration, it is unnecessary to consider the other cited registration for the stylized mark for the same services. Conversely, if likelihood of confusion is not found, we would not find likelihood of confusion as to the other cited registration. See, e.g., In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. Strength of the Cited Mark In determining the strength of a mark, we consider both its inherent strength, based on the nature of the mark itself, and, if there is evidence in the record of marketplace recognition of the mark, its commercial strength. See In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A Serial No. 88623677 - 6 - mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning).”); 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:80 (5th ed. September 2021 update) (“The first enquiry focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark at the time registration is sought or at the time the mark is asserted in litigation to prevent another’s use.”). Applicant postulates that the term GENESIS in the cited registration is entitled to only a narrow scope of protection. In this case, Applicant has introduced no third-party uses pertaining to the diminished commercial strength of the cited mark. Rather, Applicant challenges the inherent or conceptual strength of the GENESIS component of the cited mark, citing two third-party registrations incorporating the term GENESIS in their respective marks: Registration No. 2921251 for the mark GENESIS OF STYLE for “operating marketplaces for sellers of real estate and/or real estate services,” and Registration No. 6330096 for the mark INFINITE GENESIS UNITED LLC for “real estate agency services; real estate listing services for housing rentals and apartment rentals; real estate procurement for others; real estate brokerage; real estate listing; commercial and residential real estate agency services; residential real estate agency services.”9 Based on this evidence, Applicant contends that the cited mark is entitled to only a narrow scope of protection. 9 January 18, 2021 Request for Reconsideration, pp. 63-64. Serial No. 88623677 - 7 - The inherent or conceptual strength of Registrant’s mark is not seriously at issue. Registrant’s mark GENESIS PARTNERS is inherently distinctive as evidenced by its registration on the Principal Register without a claim of acquired distinctiveness under Section 2(f) of the Trademark Act. Tea Bd. of India, 80 USPQ2d at 1889. See also New Era Cap Co., Inc. v. Pro Era, LLC, 2020 USPQ2d 10596 (TTAB 2020). Registrant’s registration is “prima facie evidence of the validity of the registered mark ....’’ Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b). Furthermore, the record is devoid of evidence that GENESIS is a term of art in the real property management industry. In the absence of such evidence, third-party registrations alone may be relevant, in the manner of dictionary definitions, “to prove that some segment of the [marks] has a normally understood and well recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, 115 USPQ2d at 1675 (internal quotation marks omitted). See also Jack Wolfskin, 116 USPQ2d at 1135- 36. Here, however, we have minimal third-party registration evidence that might demonstrate the inherent weakness of this element of the cited mark as a source identifier.10 Thus, the GENESIS component in the cited mark for the identified services is inherently distinctive, and Applicant has not shown that the mark has been weakened. 10 By contrast, in Juice Generation, there were at least twenty-six relevant third-party uses or registrations of record, see 115 USPQ2d at 1672 n.1, and in Jack Wolfskin, there were at least fourteen, 116 USPQ2d at 1136 n.2. Serial No. 88623677 - 8 - B. The Marks The first DuPont likelihood of confusion factor involves an analysis of the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (citing 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 at 1746. Accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). “The proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Because the similarity or dissimilarity of the marks is determined based on the marks in their entireties, the analysis cannot be predicated on dissecting the marks into their various components; that is, the decision must be based on the entire marks, not just part of the marks. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). See also Franklin Mint Corp. V. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected Serial No. 88623677 - 9 - and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion”). “On the other hand, in articulating reasons for reaching a conclusion on the issue of confusion, there is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l Data Corp., 224 USPQ at 751. As noted above, we compare Applicant’s standard character mark GENESIS VILLAGE with the cited standard character mark GENESIS PARTNERS. Although Applicant acknowledges that both marks share the same term GENESIS, it argues that the marks differ significantly in sound and appearance due to the differences in the words VILLAGE and PARTNERS. In addition, Applicant contends that VILLAGE, not GENESIS, is the dominant term in its mark, and that the marks project different meanings when considered in relation to the identified services. In Applicant’s view, the word “village” “conveys a place for people to live and work,” an implicit reference to Applicant’s apartment rental services.11 By contrast, “partners” “conveys a business relationship between business persons or entities, anything but a “village.”12 As support for its position, Applicant points to the following definitions of “village” and “partner” from MERRIAM-WEBSTER:13 11 Applicant’s Brief, p. 6; 6 TTABVUE 7. 12 Id. 13 January 18, 2021 Office Action, pp. 6 and 16 (www.merriam-webster.com). Serial No. 88623677 - 10 - Applicant’s arguments are unconvincing. Applicant’s mark and the cited standard character mark share the same initial word GENESIS, which is arbitrary in relation to the services. The only distinction is the addition of the disclaimed words VILLAGE and PARTNERS in each mark. Disclaimed, descriptive matter, such as the word “Partners” indicating Registrant’s legal status, generally is not source-indicating and does not constitute the dominant part of a mark. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (quoting In re Nat’l Data Corp., 224 USPQ at Serial No. 88623677 - 11 - 752); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). We acknowledge that each word conveys different meanings. Nonetheless, the difference in meaning between “village” and “partners” does not rise to the level of changing the overall connotation and commercial impression of the marks GENESIS VILLAGE and GENESIS PARTNERS. See In re Denisi, 225 USPQ 624, 624 (TTAB 1985) (“[I]f the dominant portion of both marks is the same, then confusion may be likely notwithstanding peripheral differences.”). The Board has the discretion to place more weight on a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. In re Nat’l Data, 224 USPQ at 751. See, e.g., In re Dixie Rests., Inc., 41 USPQ2d at 1533-34. Accordingly, we agree with the Examining Attorney that GENESIS, as the initial and arbitrary term in each mark, is the dominant portion in both. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (finding “the identity of the marks’ two initial words is particularly significant because consumers typically notice those words first”); Palm Bay Imps., 73 USPQ2d at 1692 (finding similarity between VEUVE ROYALE and two VEUVE CLICQUOT marks in part because “VEUVE . . . remains a ‘prominent feature’ as the first word in the mark and the first word to appear on the label”). See also In re Denisi, 225 USPQ 624, 624 (TTAB 1985) (“[I]f the dominant portion of both marks is the same, then confusion may be likely notwithstanding peripheral differences.”). Serial No. 88623677 - 12 - Consumers are likely to perceive Applicant’s mark GENESIS VILLAGE as a variation of the cited mark GENESIS PARTNERS, notwithstanding the difference in meaning between “village” and “partners.” Thus, the differences between the marks fail to distinguish them. The differences we have noted in the marks are outweighed by their similarities. Thus, when comparing the marks overall, they are similar in sight, sound, connotation and commercial impression. We find this DuPont factor weighs in favor of finding a likelihood of confusion. C. The Services Next, we compare the services as they are identified in the involved application and cited registration, which in the case are “apartment and office rentals” and “real estate services, namely, managing real property.”14 See In re Detroit Athletic Co., 128 USPQ2d at 1052; Stone Lion, 110 USPQ2d at 1161; and Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). The services need not be identical or even competitive to find a likelihood of confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the circumstances 14 For this reason, Applicant’s argument that Registrant is in fact providing real estate investment and development services is unavailing. Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the question of registrability of an applicant’s mark must be decided on the basis of the identification of goods set forth in the application [and cited registration] regardless of what the record may reveal as to the particular nature of an applicant’s [or registrant’s] goods, the particular channels of trade or the class of purchasers to which sales of the goods are directed.”). Serial No. 88623677 - 13 - surrounding their marketing are such that they could give rise to the mistaken belief that [the services] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Evidence of relatedness may include news articles and/or evidence from computer databases showing that the relevant services are used together or used by the same purchasers; advertisements showing that the relevant services are advertised together or sold by the same manufacturer or dealer; and/or copies of prior use-based registrations of the same mark for both applicant’s services and the services listed in the cited registration. See, e.g., In re Davia, 110 USPQ2d 1810, 1817 (TTAB 2014) (finding pepper sauce and agave related where evidence showed both were used for the same purpose in the same recipes and thus consumers were likely to purchase the products at the same time and in the same stores). Applicant argues that during prosecution it amended its original identification to eliminate the services from the cited registration, and that the Examining Attorney now improperly conflates Applicant’s services as being subsumed within Registrant’s. As Applicant contends: The examining attorney argued that Cited Marks’ identification is so broadly worded as to subsume Applicant’s goods and services. However, as explained below, the Registrant amended its identification by narrowing its goods and services, so as not to be so broadly worded. Further, in his review the examining attorney applied the broader global real estate industry to the Parties’ services. By doing this, he equated offering real property management services for a fee to consumers to offering apartment rentals to consumers. They are not Serial No. 88623677 - 14 - equated nor are they related. This approach failed to understand the important differences between these two. Moreover, the case law requires a different standard, not a broad standard of an entire industry. Finally, the extrinsic evidence used by the examining attorney to show related services is fundamentally flawed and must be rejected. This evidence showed entities “buying and selling real estate” on behalf of third parties. Registrant’s amendments to its description of services and goods specifically, deleted the terms “buying and selling of real estate” during prosecution. This deletion makes the evidence nonprobative because it doesn’t represent Registrant’s goods and services. Absent this evidence the Applicant respectfully asks this Board to grant registration since no proof of related services of the Parties exists.15 Applicant’s arguments are belied by the record evidence. As explained earlier, Applicant’s attempt to exclude the services in the cited registration was rejected because none of those services were subsumed in the original identification. This constituted an implicit acknowledgment on the part of the Examining Attorney that Applicant’s and Registrant’s services are not identical and that evidence must be introduced to demonstrate that the services are related. With that objective in mind, to show that Applicant’s “apartment and office rentals” and Registrant’s “real estate services, namely, managing real property” are related, the Examining Attorney submitted website evidence to show that it is not uncommon for the same entity to provide both services identified in the application and cited registration under the same mark. By way of illustration, we note the following website excerpts from A Better Property Management Co., Inc.; Dodson 15 Applicant’s Appeal Brief, p. 7; 6 TTABVUE 8. Serial No. 88623677 - 15 - Property Management; Haven Property Management; Real Property Management Colorado; Compass Property Management; K&A; Long and Foster; and H Home River Group Memphis showing the provision of both property management services and apartment and/or office rentals.16 16 December 21, 2019 Office Action, pp. 25-33 and August 4, 2020, pp. 2-12. Serial No. 88623677 - 16 - Serial No. 88623677 - 17 - Serial No. 88623677 - 18 - Serial No. 88623677 - 19 - Serial No. 88623677 - 20 - Serial No. 88623677 - 21 - Serial No. 88623677 - 22 - Serial No. 88623677 - 23 - Serial No. 88623677 - 24 - Serial No. 88623677 - 25 - Serial No. 88623677 - 26 - Serial No. 88623677 - 27 - Serial No. 88623677 - 28 - Serial No. 88623677 - 29 - In addition, our determination is bolstered by the following use-based, third-party registrations introduced by the Examining Attorney showing that the same entity has registered a single mark identifying the legal equivalent17 of at least one of Applicant’s services and Registrant’s services.18 Reg. No. Mark Relevant Class 36 Services 5620580 BOAVIDA real estate rental services, namely, rental of residential housing; real estate services, namely, property management services for condominium associations, homeowner associations and apartment buildings; real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space; building management; management of buildings; rental of real estate 5672733 AIKANIC REALTY & DESIGN real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space; building management 5737994 THE ISKUS GROUP & DESIGN apartment and office rental; real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space; real estate service, namely, rental property management; real estate services, namely, property management services for condominium associations, homeowner associations and apartment buildings; real estate services, namely, rental of short term furnished apartments 5815489 ONE DAY LISTING real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space 5744132 PINK REALTY & DESIGN real estate service, namely, rental property management; real estate services, namely, property management services for condominium associations, homeowner associations and apartment buildings 17 Because the benefits of registration are commensurate with the scope of the goods specified in the certificate of registration, a registration that describes goods broadly is presumed to encompass all goods or services of the type described. See Stone Lion, 110 USPQ2d at 1161. 18 August 4, 2020 Office Action pp. 17-49. Serial No. 88623677 - 30 - Reg. No. Mark Relevant Class 36 Services 6007880 CAMPBELL SKYE real estate service, namely, rental property management; real estate services, namely, property management services for condominium associations, homeowner associations and apartment buildings 6067392 CAROLINA MOVES & DESIGN real estate service, namely, rental property management; real estate services, namely, property management services for condominium associations, homeowner associations and apartment buildings; real estate services, namely, rental of short-term furnished apartments; real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space 6078846 SAN DIEGO STEVE Real estate service, namely, rental property management; real estate services, namely, rental of short-term furnished apartments Third-party registrations that cover goods and services from both the cited registration and an Applicant's application are relevant to show that the goods and services are of a type that may emanate from a single source under one mark. See, e.g., Detroit Athletic, 128 USPQ2d at 1051; Hewlett-Packard Co. v. Packard Press, Inc., 62 USPQ2d at 1004; In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). Thus contrary to Applicant’s assertions, the Examining Attorney’s evidence is indeed probative and demonstrates that the involved services are related. As such, we find this DuPont factor supports a finding of a likelihood of confusion. D. Trade Channels We now direct our attention to the established, likely-to-continue channels of trade, the third DuPont factor. Because the identifications in the application and cited registration for the mark have no restrictions on channels of trade, we must presume that the services of Applicant and Registrant travel in all channels of trade Serial No. 88623677 - 31 - appropriate for such services, which the record as summarized above shows includes property management firms. See In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 62 USPQ2d at 1005). As such, the DuPont factor regarding the similarity or dissimilarity of established, likely to continue trade channels also favors a finding of likelihood of confusion. E. Conditions of Purchase Lastly, we consider the fourth DuPont factor, the conditions under which the services are likely to be purchased, e.g., whether on impulse or after careful consideration, as well as the degree, if any, of sophistication of the consumers. Purchaser sophistication or degree of care may tend to minimize likelihood of confusion. Conversely, impulse purchases of inexpensive items may tend to have the opposite effect. Palm Bay, 73 USPQ2d at 1695. Applicant argues that consumers of its services exercise a high degree of care because apartment rentals are expensive and require substantial security deposits; they require consumers to sign leases which are legally binding; and they require on the part of Applicant background and credit checks of prospective tenants.19 We agree with Applicant that the evidence shows that consumers will exercise a high degree of care when comparing and deciding on apartment rentals. Although the evidence does not speak to either the rental of office space or management of 19 See Declaration of Phillip Stephano, Property Manager submitted with Applicant’s January 18, 2021 Request for Reconsideration, pp. 2-3. Serial No. 88623677 - 32 - real property, we can extrapolate that the same considerations would apply. Such decisions are not casual, impulse purchases. This factor therefore weighs against finding a likelihood of confusion. F. Balancing the Factors We have considered all evidence made of record, as well the arguments related thereto. Consumer care weighs against finding a likelihood of confusion. However, with highly similar marks and related services marketed in the same trade channels, even a careful consumer is not likely to understand that the services emanate from different sources. See, e.g., In re Johns-Manville Corp., 180 USPQ 661, 662 (TTAB 1973) (“While the average purchaser of [building doors and asphalt shingles] may be skilled craftsmen, it does not necessarily follow therefrom that they are equally informed as to the source of the products that they use and are, unlike customers for other products, immune from the likelihood of confusion or deception that the statute is attempting to preclude.”). These findings lead us to the conclusion that prospective consumers are likely to confuse the source of the involved services. Decision: The Trademark Act Section 2(d) refusal is affirmed.