88074137 (T.T.A.B. Sep. 14, 2020)

SCHF VEG, LLC

Trademark Trial and Appeal BoardSep 14, 2020

88074137 (T.T.A.B. Sep. 14, 2020)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: September 14, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re SCHF VEG, LLC _____ Serial Nos. 88074137 and 88074148 _____ David B. Sunshine and Brianne L. Polito of Cozen O’Connor P.C., for SCHF VEG, LLC. Sandra Snabb, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Kuhlke, Lynch, and Coggins, Administrative Trademark Judges. Opinion by Coggins, Administrative Trademark Judge: SCHF VEG, LLC (“Applicant”) seeks registration on the Principal Register of the two marks shown below, each for Veterinary emergency and trauma services; veterinary services; veterinary services, namely, urgent care; veterinary services, namely, after-hours urgent care; veterinary services, namely, after-hours emergency care; veterinary services, namely, after-hours urgent dog and cat care; veterinary services, namely, after-hours emergency dog and cat care; in International Class 44. Serial Nos. 88074137 and 88074148 - 2 - 1 and 2 The Trademark Examining Attorney refused registration of each of Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that the marks, as applied to the services identified in the application, so resemble the mark for “animal rescue services,” in International Class 39,3 on the Principal Register as to be likely to cause confusion, to cause mistake, or to deceive. When the refusal was made final in each application, Applicant appealed and requested reconsideration. After the Examining Attorney denied the requests for 1 Application Serial No. 88074137 was filed August 10, 2018, under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the mark in commerce. The colors red, white, and black are claimed as a feature of the mark. According to the description, “[t]he mark consists of the word ‘VEG’ in white capital letters. Above the word ‘VEG’ is a white star of life within which is a design of a black paw instead of the Rod of Asclepius design. The mark features a red background.” 2 Application Serial No. 88074148 also filed August 10, 2018, under Section 1(b) of the Trademark Act. The colors red, white, and black are claimed as a feature of the mark. According to the description, “[t]he mark consists of a white star of life within which is a black paw instead of the Rod of Asclepius design. The mark features a red background.” 3 Registration No. 3757480, issued March 9, 2010; renewed. According to the description, “[t]he mark consists of a design element of the Star of Life cross with a paw print in the center instead of the Rod of Asclepius design.” Serial Nos. 88074137 and 88074148 - 3 - reconsideration, each appeal was resumed. We affirm the refusal to register each application. I. Procedural Issue The appeals for Application Serial Nos. 88074137 and 88074148 involve common questions of law and fact and the records are essentially identical. Accordingly, we consolidate and decide the appeals in this single decision. See In re Guaranteed Rate, Inc., 2020 USPQ2d 10869, *2 (TTAB 2020); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1214 (2020). Citations to the application record (in the downloadable .pdf version of TSDR) and to the appeal record (in TTABVUE) are to the file history of Application Serial No. 88074137 (the VEG composite mark).4 II. Likelihood of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all the probative facts in evidence that are relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”). See also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162- 4 Applicant attached as exhibits to each of its briefs previously-filed evidence and cited to those exhibits instead of to the application records. This was unnecessary and unhelpful. In re Michalko, 110 USPQ2d 1949, 1950 (TTAB 2014) (“Parties . . . occasionally seem to be under the impression that attaching previously-filed evidence to a brief and citing to the attachments, rather than to the original submission is a courtesy or a convenience to the Board. It is neither.”) The better and preferred practice is citation to the record. See id. at 1950-51; TBMP § 1203.01 (“When referring to the record, the applicant and examining attorney should cite to the prosecution history for the application, currently the TSDR database.”). Serial Nos. 88074137 and 88074148 - 4 - 63 (Fed. Cir. 2019). 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.”). A. Similarity or Dissimilarity of the Marks We consider whether Applicant’s and Registrant’s marks are similar when viewed in their entireties in terms of appearance, sound, connotation, and commercial impression. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)). “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) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)). The test under the first DuPont factor is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar that confusion as to the source of the services offered under the respective marks is likely to result. See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The focus is Serial Nos. 88074137 and 88074148 - 5 - on the recollection of the average purchaser, who normally retains a general rather than a specific impression of trademarks. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470 (TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016). Inasmuch as the services at issue are animal rescue and veterinary services, the average purchaser is an ordinary consumer. Because the strength of the cited mark informs the comparison of the marks, we first address Applicant’s argument that the Star of Life element in Registrant’s mark is descriptive and should be accorded a narrow scope of protection. In re Guild Mortg. Co., 2020 USPQ2d 10279, *3 (TTAB 2020). Applicant argues that the “Star of Life symbol in Registrant’s [m]ark is merely descriptive” and “should be given little weight when determining whether a likelihood of confusion exists.” 15 TTABVUE 7. In support of this assertion, Applicant argues that the star design is a “universal symbol” which “has become synonymous with emergency medical care around the globe.” Id. at 8. The Wikipedia entry of record for “Star of Life” explains that “[t]he Star of Life is a blue, six-pointed star, outlined with a white border and usually featuring the Rod of Asclepius in the center” and “has become a symbol of the emergency medical services in multiple countries.”5 The logo was designed at the National Highway Traffic Safety Administration in the 1970’s after complaints that an orange cross usually affixed to ambulances at that time too closely resembled the logo of the 5 (wikipedia.org), November 28, 2018 Office Action at TSDR 8. Serial Nos. 88074137 and 88074148 - 6 - American Red Cross.6 The logo was registered as a certification mark, and by varying accounts is either still registered7 or has expired.8 In common use, “the Star of Life has traditionally been used as a means of identification for medical personnel, equipment, and vehicles. Many ambulance services mark the symbol on their vehicles, and ambulance crews often wear the design as part of their uniform.”9 The three webpages in evidence discussing the Star of Life show the symbol variously in the following manners: 10, 11, and 12. While the evidence of record indicates that the Star of Life symbol is used to denote emergency medical care and transit, there is no evidence indicating that the symbol is descriptive of animal rescue or veterinary services – even in an emergency capacity. Instead, the record reflects that the symbol pertains to emergency medical services for humans; no pets or animals are mentioned. Similarly, none of the 12 third-party registrations submitted by Applicant in support of its argument that the Star of Life may be depicted without the Rod of 6 Id. at 9. Accord (tiogahealth.org/fire-and-ambulance/symbolism), id. at 12. 7 (ems.gov/staroflife), May 28, 2019 Response to Office Action at TSDR 9. 8 (wikipedia.org), November 28, 2018 Office Action at TSDR 8. 9 Id. at 10. 10 Id. at 8. 11 (tiogahealth.org), id. at 12. 12 (ems.gov/staroflife), May 28, 2019 Response to Office Action at TSDR 9. Serial Nos. 88074137 and 88074148 - 7 - Asclepius,13 cover animal rescue or veterinary services, and Applicant did not submit evidence to show that the goods or services in the third-party registrations may be considered “similar” to the animal rescue services in the cited registration, nor evidence that they are directed to the relevant public which comprises ordinary consumers seeking animal rescue services. See Omaha Steaks Int’l v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1694 (Fed. Cir. 2018) (error to rely on third-party evidence of similar marks for dissimilar goods, as Board must focus “on goods shown to be similar”); In re i.am.symbolic, llc, 123 USPQ2d at 1751 (disregarding third-party registrations for goods in other classes where the proffering party “has neither introduced evidence, nor provided adequate explanation to support a determination that the existence of I AM marks for goods in other classes, . . . support[s] a finding that registrants’ marks are weak with respect to the goods identified in their registrations”). We also note that the cited mark “is registered on the Principal Register [and] is entitled to all Section 7(b) presumptions, including the presumption that the mark is distinctive and moreover, in the absence of a Section 2(f) claim in the registration, that the mark is inherently distinctive for the [services].” Tea Bd. of India v. The Republic of Tea, Inc., 80 USPQ2d 1881, 1899 (TTAB 2006). The cited registration did not issue with a disclaimer of the star design nor on the basis of a showing of acquired distinctiveness under § 2(f), either in whole or in part as to the star element, and the 13 Request for Reconsideration, 4 TTABVUE 8 (argument) and 16-27 (registrations). Serial Nos. 88074137 and 88074148 - 8 - mark as a whole is thus presumed to be inherently distinctive.14 Id. See also In re Fiesta Palms, 85 USPQ2d 1360, 1363 (TTAB 2007) (“inasmuch as the cited mark is registered on the Principal Register, we must assume that it is at least suggestive….”) (citing In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534-35 (Fed. Cir. 1997)). In view of the evidence of record, we find that, although the star design within the cited mark may have some suggestive significance related to human medical emergencies, there is insufficient evidence that it has specific significance to consumers with regard to Registrant’s “animal rescue services” such that this portion of the cited mark is conceptually weak. See In re Guild Mortg. Co., 2020 USPQ2d 10279 at *3. We find the cited mark as a whole to be inherently distinctive, and not conceptually weak. We accord it – and the star design incorporated within it – a normal scope of protection. Turning now to the comparison of the marks, the cited mark is composed of two elements: an outline of the Star of Life and a paw print. The paw print is placed upright in the center of the star where the Rod of Asclepius would otherwise appear. 14 Similarly, Applicant was not required to disclaim the star portion of its marks, nor has Applicant sought registration in whole, or in part as to the star design, under Section 2(f). Serial Nos. 88074137 and 88074148 - 9 - 1. Comparison with the mark in Application Serial No. 88074148. Applicant’s mark is composed of three elements: a white Star of Life, a black paw print, and a red background. The paw print is placed upright in the center of the star where the Rod of Asclepius would otherwise appear. Applicant argues that the marks “are substantially different” as the paw print in its own mark “(i) does not feature any claws; (ii) features a metacarpal pad that is shaped like an upside-down heart; (iii) features four oval digital pads spaced evenly above such metacarpal pad of the paw print; and (iv) appears to be that of a domestic animal given that it does not feature any claws,” while the paw print in Registrant’s mark “(i) features pointed claws; (ii) features a metacarpal pad that is not shaped like a heart and has rounded edges; (iii) features non-oval, rounded digital pads above two oval digital pads and (iv) appears to be that of a wild animal given that it features claws.” 15 TTABVUE 10-11. The Examining Attorney counters that the analysis under this DuPont factor focuses on the overall commercial impression conveyed by the marks, not small differences, and those commercial impressions here are similar because each of the marks include a paw print design in place of the Rod of Asclepius which is usually in the Star of Life. 17 TTABVUE 7. While the Examining Attorney acknowledges the differences in the paw print portions of Applicant’s and Registrant’s marks, she observes that Applicant did not provide evidence that the minor differences would indicate whether the paw prints are from domesticated or wild animals. 17 TTABVUE 8. Serial Nos. 88074137 and 88074148 - 10 - We find the appearance of the marks to be similar, and the connotation and commercial impression of the marks to be the same. Each Star of Life design incorporates an upright paw element in place of the Rod of Asclepius – an unusual substitution – which suggests an animal-related emergency. We acknowledge the multiple, specific differences between the marks as enumerated by Applicant; however, the larger, main elements of an upright paw design replacing the Rod of Asclepius within the Star of Life outweigh the multiple minute differences between the claws and pads of the paw designs. See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1133-34 (Fed. Cir. 2015) (addition of claws to a paw print design did not change the commercial impression because they are “a very small component” and because with or without claws, the design still “appeared to be a paw”); see also In re Info. Builders Inc., 2020 USPQ2d 10444, *6-7 (TTAB 2020) (“An individual relies on the recollection of the various marks that he or she has previously seen in the marketplace . . . and, more frequently than not, such recollection is not enhanced with minute details or specific characteristics of the marks, but is determined by an overall or general impression of the many and various marks that exist in the marketplace.”) (citation omitted). Finally, the red background carrier in Applicant’s mark is of little import , and Applicant does not argue otherwise. We do not find it significant in distinguishing the marks. Cf. Guess? Inc. v. Nationwide Time Inc., 16 USPQ2d 1804, 1805 (TTAB 1990) (a common geometric shape, particularly one serving as a carrier or background Serial Nos. 88074137 and 88074148 - 11 - design element, is not usually considered distinctive). Similarly, Applicant’s claim that the colors red, white, and black are features of its own mark does little to distinguish it from the cited registered mark which does not claim any color as a feature and thus may appear in a similar color scheme. See In re Data Packaging Corp., 453 F.2d 1300, 172 USPQ 396, 397 (CCPA 1972); Cf. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1910 (Fed. Cir. 2012). Indeed, Applicant submitted excerpts from Registrant’s Facebook and web pages showing Registrant’s mark with a white Star of Life and black paw design upon a red background.15 While the background is not part of the cited mark, the Facebook page nonetheless reinforces the general principle that Registrant’s mark may appear in any colors, including a similar (if not identical) color scheme to Applicant’s. 2. Comparison with the mark in Application Serial No. 88074137. Applicant’s mark is composed of four elements: a white Star of Life, a black paw print, the white lettering VEG, and a red background. The paw print is placed upright in the center of the star where the Rod of Asclepius would otherwise appear. Applicant argues that that the lettering VEG is the dominant portion of this mark because, as it posits, the Star of Life is a universal symbol for emergency medical services, a paw print is suggestive of services involving animals, and the combination of these two common elements is not likely to make much of an impression on consumers who will focus instead on the VEG literal element of the mark. 15 15 May 28, 2019 Response to Office Action at TSDR 12-13. Serial Nos. 88074137 and 88074148 - 12 - TTABVUE 10. Applicant adds the arguments, discussed above with the non-lettered mark of its other application, that there are specific differences between the paw prints of its mark and the cited mark, id. at 10-11, and that the Examining Attorney failed to provide a rational reason for placing emphasis on the design elements over the VEG literal element. 20 TTABVUE 6. The Examining Attorney observes that “the registered mark has no wording to distinguish it from” Applicant’s mark, Applicant’s mark “merely adds the term ‘VEG’ to a design which is very similar to the” cited mark, and there is no general rule as to whether letters or designs will dominate in composite marks. 17 TTABVUE 7-8. As a starting point, we incorporate here our earlier analysis of Applicant’s non- lettered mark with identical design elements: the color claim and small differences in the paw designs are not significant in distinguishing the marks which are otherwise similar due to the upright paw designs replacing the customary Rod of Asclepius within a Star of Life. Applicant argues that VEG is the dominant portion of its mark. Applicant offers no explanation or meaning for those letters, and we perceive none from the mark itself. We observe that the letters are shorter than and placed below the larger star- and-paw element, and being exactly as wide as the star-and-paw element they present a visual base for the star-and-paw. The letters and star-and-paw appear further related because they are both presented in white within the red background and the letters are in a sans serif font mimicking the arms of the star. Serial Nos. 88074137 and 88074148 - 13 - Because of the size, visual prominence, and placement of the star-and-paw design element, we find it at least as significant as the literal portion of the mark, and therefore find unpersuasive Applicant’s arguments that VEG is dominant. We recognize the significance of VEG as the only phonetic element in either mark. It is clear that Applicant’s mark and the cited design mark are not identical because the VEG literal portion of Applicant’s mark is absent from the cited mark. However, even if we were to assume the lettering VEG constitutes the dominant portion of Applicant’s mark, the star-and-paw design is nonetheless a salient, distinctive feature of Applicant’s mark which must be given due consideration. See In re Info. Builders Inc., 2020 USPQ2d 10444 at *6. As previously noted, we must base our determination regarding the similarity of the marks on the marks in their entireties. Jack Wolfskin, 116 USPQ2d at 1134; 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 23, 234 (CCPA 1981). We recognize that greater weight is often given to wording in a mark because it is the wording that purchasers often use to refer to or request the goods or services. In re Info. Builders Inc., 2020 USPQ2d 10444 at *7 (citing In re Viterra, Inc., 101 USPQ2d at 1911). Here, as noted above, the design in Applicant ’s mark is the slightly larger element placed above the lettering and is a central and prominent portion of the mark. The black paw within the white star – in the center, at the intersection of the six white arms – provides a contrast, drawing the eye in to a focal point in the center of the star. Also, the cited mark has no literal portion of its own that consumers Serial Nos. 88074137 and 88074148 - 14 - could rely on to contrast with Applicant’s mark, and so consumers familiar with the cited design mark are likely to view Applicant’s mark as a mere variation of the cited mark that adds a word. These reasons negate the general tendency of the literal portion of a mark to weigh more heavily in a likelihood of confusion analysis. Cf. Jack Wolfskin, 116 USPQ2d at 1135 (in appropriate circumstances, the Board can give greater weight to a design component of a composite mark); see also In re Electrolyte Labs. Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990) (“There is no general rule as to whether letters or design will dominate in composite marks.”). Further, although there is no explicit rule that marks are automatically similar where the junior mark contains a highly similar version of the entirety of the cited mark, here, as explained earlier, the cited mark is inherently distinctive and Applicant has not submitted any evidence of third-party use of similar marks for similar services to demonstrate that it is commercially weak. The VEG literal element does not diminish the striking similarity of the star-and-paw design element to the cited design mark. We find Applicant’s mark to be similar in appearance, connotation, and commercial impression to the mark in the cited registration. While the marks are not similar in sound, that is only because the cited mark has no phonetic element, whereas Applicant’s mark does. We further note that while we do not find the star portion of mark in the cited registration to be descriptive or weak in the context of these services, even if this element were weak, it would not undermine the presumption of validity of the cited mark under Section 7(b) of the Trademark Act, and to protection against registration of a mark likely to cause confusion. See In re Serial Nos. 88074137 and 88074148 - 15 - Guild Mortg. Co., 2020 USPQ2d 10279 at *3 (citing King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974)). Accordingly, we find that each of Applicant’s marks is sufficiently similar to the cited mark that the first DuPont factor favors a finding of likelihood of confusion. B. Similarity or Dissimilarity of the Services The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration.”’ In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (quoting DuPont, 177 USPQ at 567). We must make our determination under this factor based on the services as they are identified in the application and cited registration. See Id. at 1052; Stone Lion Capital Partners v. Lion Capital, 110 USPQ2d at 1161. It is “not necessary that the [services] be identical or even competitive to support a finding of a likelihood of confusion.” Coach Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at 1722 (quoting 7-Eleven, Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). “[L]ikelihood of confusion can be found ‘if the respective [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. (quoting 7-Eleven, 83 USPQ2d at 1724). The cited registration is for “animal rescue services,” and each of Applicant’s applications includes “veterinary services.” In re Midwest Gaming & Entm’t LLC, 106 USPQ2d 1163, 1066 (TTAB 2013) (where services are separated by a semicolon from the other wording they are a separate category of services). The Examining Attorney Serial Nos. 88074137 and 88074148 - 16 - need not prove, and we need not find, similarity between each of the services identified in the application and the service identified in the cited registration. It is sufficient if one of the services identified in each single-class application is similar to the services identified in the cited registration. See, e.g., Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Where the identification of services is broad, the Board “presume[s] that the services encompass all services of the type identified.” Southwestern Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). Therefore, the application is presumed to encompass all “veterinary services” while the cited registration is presumed to encompass all “animal rescue services.” Accordingly, Applicant’s arguments and evidence attempting to narrow its services to “urgent care for domestic animals” and Registrant’s services to “removing wild animals from dangerous situations” will not be considered. Our determination of whether the services are related is based on the identifications in the application and cited registration and not on any extrinsic evidence regarding how the marks are actually used. In re i.am.symbolic, llc, 123 USPQ2d at 1749 (“It is well established that the Board may not read limitations into an unrestricted registration or application.”); Stone Lion Capital Partners v. Lion Capital, 110 USPQ2d at 1162; In re Dixie Rests., 41 USPQ2d at 1534; Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). Serial Nos. 88074137 and 88074148 - 17 - The Examining Attorney introduced approximately 20 use-based, third-party registrations showing that the same entity has registered a single mark identifying at least “veterinary services” and “animal rescue services,” including: Registration No. 2777577 (NO MORE HOMELESS PETS)16 Registration No. 3154507 (MSPCA-ANGELL)17 Registration No. 3375954 (SCPA OF TEXAS)18 Registration No. 4735467 (DR. GOOD VET)19 Registration No. 4728901 (EVERY ANIMAL DESERVES A TOMORROW.)20 Registration No. 4850122 (RUFF START)21 Registration No. 5307665 (WALLIS ANNENBERG PETSPACE)22 Registration No. 5600986 (PAWSCO)23 Registration No. 4377845 (WILDLIFE CENTER OF TEXAS)24 Registration No. 4689060 (THE POWER OF PURR)25 and Registration No. 4524245 (WAYSIDE WAIFS A NO KILL SHELTER).26 As a general proposition, third-party registrations that cover services from both the cited registration and an applicant’s application are relevant to show that the services are of a type that may emanate from a single source under one mark. In re Country Oven, Inc., 2019 USPQ2d 443903, *8 (TTAB 2019) (citing, inter alia, Detroit Athletic, 128 USPQ2d at 1051; Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 16 November 28, 2018 Office Action at TSDR 42. 17 Id. at 45-46. 18 Id. at 48. 19 Id. at 51. 20 Id. at 57-58. 21 Id. at 60-61. 22 Id. at 66-67. 23 Id. at 69. 24 June 19, 2019 Office Action at TSDR 63-64. 25 Id. at 66. 26 Id. at 68-69. Serial Nos. 88074137 and 88074148 - 18 - 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)). Applicant acknowledges the third- party registrations but argues that they do not show the narrower, specific services that it and Registrant actually provide, i.e., “emergency veterinary care and animal rescue services involving removing wild animals from dangerous situations.” 20 TTABVUE 10. However, as noted earlier, our determination is based on the identifications in the application and cited registration and not on extrinsic evidence showing how the marks are actually used. E.g., In re i.am.symbolic, 123 USPQ2d at 1749. Similarly, that some of the registrations may cover specific veterinary or animal rescue services does not diminish their probative value, as such narrower services are encompassed by Applicant’s unrestricted “veterinary services” and Registrant’s broadly worded “animal rescue services.” Nonetheless, most of the registrations identify general or broadly identified veterinary and animal rescue services, and all are relevant to show that Applicant’s and Registrant’s services are of a type that may emanate from a single source under a single mark. The Examining Attorney also adduced third-party Internet evidence in support of her position that the services are related in a manner that would lead relevant consumers to believe both sets of services often come from a single source. The evidence includes screenshots from more than 25 entities providing both veterinary services and animal rescue services. These include: (humaneanimalrescue.org)27 Humane Animal Rescue offers a “Veterinary Clinic” which provides “Low cost 27 November 28, 2018 Office Action at TSDR 14-20. Serial Nos. 88074137 and 88074148 - 19 - medical care for your pet” and a “Wildlife Center” which provides “rehab and rescue.” (arlboston.org)28 Animal Rescue League of Boston states that they “Treat” by “provid[ing] veterinary services including spay/neutering and wellness clinics” and “Rescue” by “rescu[ing] domestic animals and wildlife.” (spcamc.org)29 The SPCA for Monterey County offers “rescue and protection” and “Wildlife Rescue & Rehabilitation” services that “Rescue, rehabilitate, and rehome homeless, neglected, and abused pets, horses, and barn animals” as well as “provid[ing] quality veterinary services.” (owl-online.org)30 Operation Wildlife offers “rescue and rehabilitation services to injured and orphaned animals” which includes appropriate “Medical attention.” (animalfoundation.com)31 The Animal Foundation “is the highest volume single-site animal shelter in America.” It offers a “Low-Cost Vet Clinic” and directs people to “Become a Lifesaver. Rescue Your Next Pet. Adopt Now.” and many others as listed and excerpted in the Examining Attorney’s brief. See 17 TTABVUE 9-11. Applicant argues that the website evidence “conflates animal shelter, sanctuary, and adoption services with animal rescue services” which, it implies, must be limited to “rescu[ing] animals from dangerous situations.” 15 TTABVUE 12. We reiterate that our determination is based on the broadly worded “animal rescue services” in the cited registration, not on possibly narrower services actually performed by 28 Id. at 36-41. 29 Request for Reconsideration Denied, 7 TTABVUE 7-18 and 8 TTABVUE 2-18. 30 Request for Reconsideration Denied, 11 TTABVUE 9. 31 Request for Reconsideration Denied, 12 TTABVUE 13-17. Serial Nos. 88074137 and 88074148 - 20 - Registrant. The website evidence demonstrates that veterinary services and various animal rescue services emanate from a single source under one mark. We find the Examining Attorney’s extensive evidence sufficient to establish that “veterinary services” and “animal rescue services” commonly originate from the same source under a single mark. In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-03 (TTAB 2009). Accordingly, the second DuPont factor favors a finding of likelihood of confusion. C. Conclusion Because the marks are similar and the services are related, we find that confusion is likely between each of Applicant’s marks and and Registrant’s mark . III. Decision The refusals to register Applicant’s marks and are affirmed.