Alderwood Surgical Center

Trademark Trial and Appeal Board

Oct 12, 2021

88427822 (T.T.A.B. Oct. 12, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 12, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Alderwood Surgical Center
_____

Serial No. 88427822
_____

Bret W. Albertson of Vendevr Law for Alderwood Surgical Center.

Karl A. Wert, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Bergsman, Greenbaum, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Alderwood Surgical Center (“Applicant”) seeks registration on the Principal
Register of the standard character mark ZOMBIE BBL (BBL disclaimed) for
“Surgery; Cosmetic surgery services; Cosmetic and plastic surgery; Plastic surgery;
Plastic surgery services” in International Class 44.1

1 Application Serial No. 88427822 was filed on May 13, 2019 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claimed first use of the mark and
first use of the mark in commerce at least as early as October 31, 2018. The letters BBL in
the mark abbreviate “Brazilian Butt Lift,” a surgical procedure. July 24, 2019 Office Action
at TSDR 1, 7-20.
Serial No. 88427822
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
so resembles the standard character marks ZOMBIE BRACES (BRACES disclaimed)
and ZOMBIE TEETH (TEETH disclaimed), both registered on the Principal Register
for “dentist services” in International Class 44,2 as to be likely, when used in
connection with the services identified in the application, to cause confusion, to cause
mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration, which was denied. Applicant and the Examining Attorney have filed
briefs.3 We affirm the refusal to register.
I. Record on Appeal and Evidentiary Issue4
The record on appeal includes Applicant’s specimen of use and the following
materials:
 USPTO electronic records regarding the cited registrations;5

2 Registration No. 4895227 of ZOMBIE BRACES issued on February 2, 2016 and Registration
No. 4858324 of ZOMBIE TEETH issued on November 24, 2015. They are owned by the same
entity (the “Registrant’). Both registrations cover additional services that were not cited by
the Examining Attorney in support of the refusal to register.
3 Citations in this opinion to the briefs refer to TTABVUE, the Board’s online docketing
system. Turdin v. Tribolite, Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014). Specifically, the
number preceding TTABVUE corresponds to the docket entry number, and any numbers
following TTABVUE refer to the page(s) of the docket entry where the cited materials appear.
Applicant’s brief appears at 6 TTABVUE. The Examining Attorney’s brief appears at 8
TTABVUE.
4 Citations in this opinion to the application record are to pages in the Trademark Status &
Document Retrieval (“TSDR”) database of the United States Patent and Trademark Office
(“USPTO”).
5 July 24, 2019 Office Action at TSDR 2-6.
Serial No. 88427822
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 Internet webpages regarding the meaning of the term “BBL” in Applicant’s
mark;6
 Internet webpages of various providers of dental and surgical services;7
 Pages from the Registrant’s website,8 and Applicant’s website;9
 An article regarding the training and practices of physicians and dentists;10
 USPTO electronic records regarding third-party registrations of marks for
the same or similar services of Applicant and Registrant;11
 Webpages from webmd.com regarding the professional training and
practices of physicians and dentists;12 and
 Webpages containing statistics pertaining to the public’s use of dentist
services, and cosmetic and plastic surgery services, the nature and cost of
such services, and the training of health care professionals in those fields.13
Applicant attached many of these materials to its appeal brief, 6 TTABVUE 10-
76, and then cited them in the brief. Id. at 7-9. The Board strongly discourages this
practice. “Parties to Board cases occasionally seem to be under the impression that
attaching previously-filed evidence to a brief and citing to the attachments, rather

6 Id. at TSDR 7-20.
7 Id. at TSDR 21-43; July 30, 2020 Final Office Action at TSDR 2-76; February 16, 2021
Denial of Request for Reconsideration at TSDR 2-33.
8 December 6, 2019 Response to Office Action at TSDR 6-8, 14-15.
9 Id. at TSDR 9-13, 16-25.
10 Id. at 26-28.
11 January 8, 2020 Office Action at TSDR 2-21.
12 July 7, 2020 Response to Office Action at TSDR 3-6.
13 Id. at TSDR 2-68.
Serial No. 88427822
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than to the original submission is a courtesy or convenience to the Board. It is
neither.” In re Michalko, 110 USPQ2d 1949, 1950 (TTAB 2014). As the Board
explained in Michalko, “[w]hen considering a case for final disposition, the entire
record is available to the panel,” and “[b]ecause we must determine whether
attachments to briefs are properly of record, citation to the attachment requires
examination of the attachment and then an attempt to locate the same evidence in
the record developed during the prosecution of the application,” which requires “more
time and effort than would have been necessary if citations directly to the prosecution
history were provided.” Id. at 1950-51.
The Examining Attorney argues that Applicant also attached to its brief “new
evidence to overcome the refusal to register” in the form of USPTO electronic records
regarding six “pairs” of third-party registrations of similar marks that each cover one
of the services identified in the application and the cited registrations, but are owned
by different entities. 8 TTABVUE 4 (citing 6 TTABVUE 77-89).14 The Examining
Attorney objects to the third-party registrations under Trademark Rule 2.142(d), 37
C.F.R. § 2.142(b), which provides that
The record in the application should be complete prior to
the filing of an appeal. The Trademark Trial and Appeal
Board will ordinarily not consider additional evidence filed
with the Board by the appellant or by the examiner after
the appeal is filed. After an appeal is filed, if the appellant
or the examiner desires to introduce additional evidence,

14 Applicant listed these registrations in its January 29, 2021 Request for Reconsideration at
TSDR 2-3. The Examining Attorney states that he advised Applicant “of the procedure for
making third party registrations of record in the February 16, 2021 letter” denying the
Request for Reconsideration. 8 TTABVUE 4 n.2 (citing February 16, 2021 Denial of Request
for Reconsideration at TSDR 1). Applicant did not follow this procedure.
Serial No. 88427822
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the appellant or the examiner may request the Board to
suspend the appeal and to remand the application for
further examination.
“Evidence filed in an ex parte proceeding must be filed prior to the filing of the
appeal, not afterwards.” In re ADCO Indus. — Techs., L.P., 2020 USPQ2d 53786, at
*2 (TTAB 2020) (citing Trademark Rule 2.142(d)). We sustain the Examining
Attorney’s objections to the third-party registrations attached to Applicant’s brief,
and have given them, and Applicant’s related arguments under the heading “USPTO
Previous Decisions,” 6 TTABVUE 9, no consideration in our decision.
II. Analysis of Section 2(d) Refusal
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits the registration
of a mark that “[c]onsists of or comprises a mark which so resembles a mark
registered in the Patent or Trademark Office, or a mark or trade name previously
used in the United States by another and not abandoned, as to be likely, when used
on or in connection with the goods of the applicant, to cause confusion, or to cause
mistake, or to deceive.” Our determination of the likelihood of confusion under
Section 2(d) is based on an analysis of all probative facts in the record that are
relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de
Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). 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, 1162-63 (Fed. Cir. 2019).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, because the
Serial No. 88427822
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‘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.’” In re
Embiid, 2021 USPQ2d 577, at *10 (TTAB 2021) (quoting Federated Foods, Inc. v. Fort
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)). Applicant does
not address the first DuPont factor in its brief, focusing instead on the second, third,
and fourth factors. 6 TTABVUE 6-9.
A. Similarity or Dissimilarity of the Marks
“Under the first DuPont factor, we consider ‘the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” Embiid, 2021 USPQ2d 577, at *11 (quoting Palm Bay Imps., Inc. v.
Veuve Clicquot Ponsarding Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1691 (Fed. Cir. 2005)). Applicant stated during prosecution that it “does not dispute
that the ‘Zombie’ mark being applied for is identical to Registrant’s,”15 and, as noted
above, Applicant does not address the first DuPont on appeal, effectively conceding
that the marks are similar. See In re Morinaga Nyugyo K.K., 120 USPQ2d 1738, 1740
(TTAB 2016) (applicant’s failure to address second and third DuPont factors in its
brief deemed an apparent concession on those factors). Accordingly, “we offer only a
brief explanation of our conclusion” under the first DuPont factor. Id.
Applicant’s mark ZOMBIE BBL, and the cited marks ZOMBIE TEETH and
ZOMBIE BRACES, are structurally identical because they consist of the unusual and
memorable word ZOMBIE followed by words that are generic for, or merely

15 July 7, 2020 Response to Office Action at TSDR 69.
Serial No. 88427822
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descriptive of, the respective services, and have been disclaimed. It is well-settled
that disclaimed, descriptive matter may have less significance in likelihood of
confusion determinations. See, e. g., In re Detroit Athletic Co., 903 F.3d 1297, 128
USPQ2d 1047, 1049 (Fed. Cir. 2018) (citing In re Dixie Rests., Inc., 105 F.3d 1405, 41
USPQ2d 1531, 1533-34 (Fed. Cir. 1997)). Consumers of the services with which the
marks are used are likely to focus on the identical and distinctive lead word ZOMBIE
in identifying the source of the services. See, e.g., id. (the marks DETROIT
ATHLETIC CO. and DETROIT ATHLETIC CLUB “reveal an identical structure and
a similar appearance, sound, connotation, and commercial impression” and these
“similarities go a long way toward causing confusion among consumers”); Palm Bay
Imps., 73 USPQ2d at 1692; Century 21 Real Estate Corp. v. Century Life of Am., 970
F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). We find that Applicant’s mark is
quite similar to the marks in both of the cited registrations in appearance, sound, and
connotation and commercial impression, and the first DuPont factor thus supports a
finding of a likelihood of confusion.
B. Similarity or Dissimilarity of the Services and Channels of
Trade
The second DuPont factor “considers [t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration,” Detroit Athletic
Co., 128 USPQ2d at 1051 (quoting DuPont, 177 USPQ at 567), while the third DuPont
factor “considers ‘[t]he similarity or dissimilarity of established, likely-to-continue
trade channels.” Id. at 1052 (quoting DuPont, 177 USPQ at 567).
Serial No. 88427822
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1. Similarity or Dissimilarity of the Services
The services identified in both of the cited registrations are “dentist services,”
while the services identified in Applicant’s application are “Surgery; Cosmetic
surgery services; Cosmetic and plastic surgery; Plastic surgery; Plastic surgery
services.” “The Examining Attorney need not prove, and we need not find, similarity
as to each [service] listed the description” in the application. In re St. Julian Wine
Co., 2020 USPQ2d 10595, at *3-4 (TTAB 2020). “‘It is sufficient for finding a likelihood
of confusion if relatedness is established for any item encompassed by the
identification of” services in the application. Id., at *4 (quoting In re Aquamar, Inc.,
115 USPQ2d 1122, 1126 n.5 (TTAB 2015) and citing Tuxedo Monopoly, Inc. v. Gen.
Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)).
The involved “services need not be identical or even competitive to find a likelihood
of confusion.” In re Country Oven, Inc., 2019 USPQ2d 443903, at *4 (TTAB 2019)
(citing 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
surrounding their marketing are such that they could give rise to the mistaken belief
that [the services] emanate from the same source.’” Id. (quoting Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(internal quotation omitted)).
Evidence of relatedness may include news articles 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
Serial No. 88427822
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manufacturer or dealer; or copies of prior use-based
registrations of the same mark for both applicant’s
[services] and the [services] listed in the cited
registration[s].
Embiid, 2021 USPQ2d 577, at *22-23 (quoting In re Ox Paperboard, LLC, 2020
USPQ2d 10878, at *5 (TTAB 2020)).
“We begin with the identifications of . . . services in the registration[s] and
application under consideration.” Country Oven, 2019 USPQ2d 443903, at *5. The
registrations cover services broadly identified as “dentist services” and the
identification of services in the application begins with services broadly identified as
“surgery.” Where, as here, “the identification of services is broad, the Board
‘presume[s] that the services encompass all services of the type identified.’” Id., at *4.
The Examining Attorney argues that the identification of “dentist services” in the
cited registrations “overlaps the Applicant’s ‘surgery’ services.” 8 TTABVUE 7.
Applicant does not address this portion of its identification, but instead focuses on
the relatedness of its “cosmetic and plastic surgery and the Registrant’s dental
services,” 6 TTABVUE 7, arguing that there is “a de minimis overlap” of those
services. Id. at 8. As discussed above, however, the Examining Attorney need not
show that “dentist services” are similar to “cosmetic and plastic surgery” if “dentist
services” encompass “surgery” because dentists may perform “surgery” in the course
of rendering their services.
That dentists may perform “surgery” seems self-evident from the fact that dental
school graduates commonly receive the degree of “Doctor of Dental Surgery”
Serial No. 88427822
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(“DDS”),16 and the record confirms that “surgery” is a part of “dentist services.”
Applicant acknowledges that “[d]ental services encompass a wide range of services
and specialties related to the care of teeth, gums, and mouth,” 6 TTABVUE 7,
including the dental “specialty called ‘oral and maxillofacial surgery,’” id., in which
“[o]ral and maxillofacial surgeons receive additional training after dental school,” and
Applicant states that the “number of maxillofacial surgeries performed as part of
dental services is approximately 17 million, roughly 3% of all dental services.”
Id. at 7-8 (emphasis added).17 Applicant also made of record pages from WebMD
discussing, under the heading “Oral and Maxillofacial Surgeon,” the “types of
surgeries an oral surgeon may perform,” including “simple tooth extractions, complex
extractions involving removal of soft tissue or overlying bone or remaining roots,
impacted teeth (especially wisdom teeth) removal, soft tissue biopsies, removal of
tumors in the oral cavity implant positioning, complex jaw realignment surgeries
involving facial or bite discrepancies, fractured cheek or jaw bone repair and soft
tissue (cleft palate or lip) repair.”18
Internet evidence made of record by both Applicant and the Examining Attorney
confirms that dentists perform various types of surgery in the course of rendering
their services.19 Applicant made of record pages from the Registrant’s website that

16 July 7, 2020 Response to Office Action at TSDR 3.
17 Id. at TSDR 8-14.
18 Id. at TSDR 4.
19 Applicant argues that “the use of ‘Internet evidence’ by the Examining Attorney to
determine relatedness was given undue consideration” because “[u]nder the standard stated
in In re St. Helena Hosp. [774 F.3d 747, 113 USPQ2d 1082 (Fed. Cir. 2014)] ‘[a]dvertising on
the Internet is ubiquitous and proves little, if anything, about the likelihood that consumers
Serial No. 88427822
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list its numerous services, including “Oral Surgery & Dental Implants.”20 Applicant
also made of record an article entitled “Dentist vs. Doctor,”21 which states that
“[d]entists are doctors who specialize in oral health,” and that “[s]ome dentists
perform surgery on the teeth, bones and soft tissue of the mouth.”22 The article also
notes that oral surgery is a specialty area within dentistry “which can require four to
six years of additional study” beyond dental school.23 Finally, Applicant made of
record pie charts showing the percentages of various dentist services in 1999 and
2009 out of all procedures.24 “Oral surgery” was listed as one such procedure, and the
text accompanying the charts discussed the number of “surgical” procedures
performed by dentists with respect to various demographic groups.

will confuse similar marks used in such goods and services.’” 6 TTABVUE 7 (quoting St.
Helena Hosp., 113 USPQ2d at 1087). Applicant’s citation of St. Helena Hosp. is misleading
at best. The quoted language in the decision was preceded by the court’s statement that in
refusing registration of the applicant’s mark, the USPTO went “too far . . . in claiming that
because both St. Helena’s services and the registrant’s goods are promoted through websites,
the channels of trade are similar.” St. Helena Hosp., 113 USPQ2d at 1087. The Board has
long recognized the principle that “the mere fact that goods and services may both be
advertised and offered through the Internet is not a sufficient basis to find that they are sold
through the same channels of trade,” Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734,
1743 (TTAB 2014), but the Internet evidence here is offered to show that the involved services
may be provided under the same mark. When used for that purpose, Internet evidence is a
recognized source of proof of relatedness. See, e.g., In re Integrated Embedded, 120 USPQ2d
1504, 1514-15 (TTAB 2016) (websites made of record by examining attorney “demonstrate[d]
that services of the type offered by both Applicant . . . and Registrant are marketed and sold
together online under the same marks” and “[s]uch evidence is sufficient to find that the
services at issue are related.”).
20 December 6, 2019 Response to Office Action at TSDR 15.
21 Id. at TSDR 26.
22 Id.
23 Id. at TSDR 27.
24 July 7, 2020 Response to Office Action at TSDR 8-14.
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The Examining Attorney made of record pages from the websites of various
medical professionals who offer “surgery” as part of their “dentist services.” The
website of Atlanta Oral & Facial Surgery offers a variety of “Dental Treatments,”
including “Wisdom Teeth, “Dental Implants,” and “Bone Grafting,” as well as what it
describes as “Non[-]Surgical Services.”25 The website of Alamo Maxillofacial Surgical
Associates lists multiple dentists holding the DDS degree who offer a variety of oral
surgical procedures, including dental implants, wisdom teeth, bone grafting, and
tooth extraction.26 The website of McLain Surgical Arts offers “Oral Maxillofacial
Surgery,” including “Dental Surgery” involving wisdom teeth and dental implants.27
The website of NorthWest Valley Oral Maxillofacial & Facial Cosmetic Surgery, PC
offers dental implants and wisdom teeth removal.28
The Examining Attorney also made of record six use-based, third-party
registrations of marks for both “dentist services” (or its equivalent “dentistry
services”), and “oral surgery and dental implant services,”29 “oral surgery and dental
implant services and dental services, namely, performing restorative and cosmetic
procedures,”30 or “oral surgery services.”31

25 July 24, 2019 Office Action at TSDR 42.
26 July 30, 2020 Final Office Action at TSDR 66-76.
27 February 16, 2021 Denial of Request for Reconsideration at TSDR 2-3
28 Id. at TSDR 19-27.
29 January 8, 2020 Office Action at TSDR 2-4 (Registration No. 3893883); 8-9 (Registration
No. 4465697), 16-18 (Registration No. 5507032).
30 Id. at TSDR 5-7 (Registration No. 4170480).
31 Id. at TSDR 10-12 (Registration No. 4830000), 19-21 (Registration No. 5742891).
Serial No. 88427822
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The record as a whole shows that dentists perform “surgery” and that “surgery”
services are thus encompassed within “dentist services.” “Applicant’s services . . . thus
are subsumed by Registrant’s services, and [are] legally identical thereto.” Integrated
Embedded, 120 USPQ2d at 1514.
Although the legal identity of the services in part is sufficient to show that the
second DuPont factor supports a finding of a likelihood of confusion, the record also
shows that “dentist services” and “cosmetic surgery services” may be offered by the
same providers under the same marks. Applicant concedes a “limited overlap between
the Applicant’s cosmetic and plastic surgery services and the Registrant’s dental
services” in the field of maxillofacial surgery, 6 TTABVUE 7,32 and the Examining

32 As noted above, Applicant claims that in 1999 and 2009, procedures described as “Oral
Surgery” accounted for “roughly 3% of all dental services” or approximately 17 million
procedures, while “the number of maxillofacial surgeries performed by plastic and cosmetic
surgeons” was “approximately 204,000 annually.” 6 TTABVUE 7-8. Applicant cites Elec.
Design & Sales, Inc. v. Elec. Data Sys. Corp., 954 F.2d 713, 21 USPQ2d 1388 (Fed. Cir. 1992),
for the proposition that “any overlap in customers is too small to be significant much less
dispositive.” Id. at 8 (quoting Elec. Design & Sales, 21 USPQ2d at 1392). Applicant’s reliance
on Elec. Design & Sales is misplaced. In that case, the Board had found that computer
services, and power suppliers and battery chargers, were related because they would be
encountered by some of the same large corporations. The Federal Circuit reversed the Board’s
likelihood of confusion conclusion based on that finding because there was no evidence that
the relevant human purchasers within those corporations who bought computer services, and
power suppliers and battery chargers, were the same. As the court put it, the record did “not
establish that the actual and potential purchasers from each party would be the same, due
to specialization among their corporate customers’ departments.” Elec. Design & Sales, 21
USPQ2d at 1391. The court’s statement that “any overlap in customers is too small to be
significant much less dispositive,” id. at 1392, was made against the backdrop of the court’s
holding that the Board erred because it “only considered corporate customers as a whole
rather than determining the ‘relevant persons’ within,” such that the number of opposer’s
customers who came into contact with applicant’s goods “would involve at most only a de
minimis number of sophisticated purchasers.” Id. Here, the “relevant persons” who purchase
dentist services, and cosmetic surgery services, are natural persons in need of health care.
The record shows that they may encounter both sets of services sold under the same mark.
Serial No. 88427822
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Attorney made of record webpages of a number of entities that offer both dentist
services and cosmetic surgery services under the same marks.
In addition to the four websites discussed above, other websites in the record
confirm that dentist services and cosmetic surgery services may emanate from the
same source.
 The website of Greater Charlotte Oral and Facial Surgery offers “several
oral and cosmetic surgery procedures,” including wisdom teeth removal,
dental implants, general extractions, bone grafting, multiple teeth
replacement, facelift surgery, and laser facial skin resurfacing services.33
 The website of Capital Center for Oral and Maxillofacial Surgery and for
Cosmetic Surgery, which is a practice of three dentists holding the DDS
degree, offers cosmetic surgery, including tummy tucks, facelifts, and
Brazilian butt lifts, and oral dental surgery, including bone grafting and
dental implants.34
 The website of Deme at demecosmetic.com, which describes itself as a
“dental ● medical collaborative,” offers dental care as well as plastic
surgery.35
 The website of Hedden & Gunn Plastic Surgery offers “Cosmetic Surgery,
Dentistry and More” at the Greystone Cosmetic Center.”36

33 July 24, 2019 Office Action at TSDR 21-28.
34 Id. at TSDR 29-34; July 30, 2020 Final Office Action at TSDR 24-51.
35 July 24, 2019 Office Action at TSDR 43.
36 July 30, 2020 Final Office Action at TSDR 2-15.
Serial No. 88427822
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 The website of Premiere Surgical Arts, which describes oral and
maxillofacial surgery as “the bridge between medicine and dentistry,” offers
dental implants, wisdom teeth removal, bone grafting, and cosmetic
surgery.37
 The website of Cosmetic & Laser Dental Studio offers dental services and
cosmetic surgery.38
In addition, each of the third-party registrations in the record covers “dentist
services” (or its equivalent “dentistry services”) and some form of cosmetic surgery.39
The involved services are identical in part and otherwise related. The second
DuPont factor supports a finding of a likelihood of confusion.
2. Similarity or Dissimilarity of the Channels of Trade
“Because the services are identical [in part], we must presume that the channels
of trade and classes of purchasers are the same.” In re Am. Cruise Lines, Inc., 128
USPQ2d 1157, 1158 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012)). See also Primrose Retirement Cmtys., LLC v.
Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (“Given the
identity of the services, at least in part, and the lack of restrictions on trade channels
and classes of consumers in the recitations of services, we presume that these services
travel through the same channels of trade . . . .”). With respect to services in the
application other than “surgery,” the record shows that “dentist services” and

37 Id. at TSDR 16-23.
38 Id. at 52-58.
39 January 8, 2020 Office Action at TSDR 2-21.
Serial No. 88427822
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“cosmetic surgery” may be delivered through health care practices that offer both sets
of services to persons in need of these particular forms of treatment. The third DuPont
factor supports a finding of a likelihood of confusion.
C. Purchase Conditions and Purchaser Care
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 argues that “[h]ighly trained specialists in very
controlled environments provide” the involved services, 6 TTABVUE 8, and that
confusion is unlikely because
In order for a consumer to purchase these services they
must consult with a medical professional. In making the
determination that a likelihood of confusions exists the
Examiner failed to identify the involvement of these
medical professionals in the purchasing process. The
medical professional decides the course of treatment and
makes recommendations for products or services. The
consumer will not and cannot purchase services without
approval from the medical professional. This means that
the relevant purchaser is not just a consumer seeking the
service but also the medical professional that the patient is
conferring with for any service. This also means that the
medical professional is an “influencer” on purchasing
decisions by the patient.
Id.
Applicant further argues that
In determining the likelihood of confusion the Examiner
failed to account for the sophistication of the purchaser.
The pricing of the dental services and cosmetic and plastic
surgery services vary greatly. Dental services can range
from $20 to $80,000 depending on the type of service . . .
Cosmetic and plastic surgery procedures start at around
$6,500 and go up and [are] provided by cosmetic and plastic
Serial No. 88427822
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surgeons. The price of these services indicates that these
are not impulse purchases but require a purchaser to
engage in careful consideration. In addition, all of the
services require consultation with a professional in these
very specialized areas. To select a professional a person
seeking these services goes [sic] conducts extensive
research.
Id. at 9.
The Examining Attorney effectively concedes some degree of greater purchaser
care in purchasing dental and surgery services by arguing that “the fact that
purchasers are sophisticated or knowledgeable in a particular field does not
necessarily mean that they are sophisticated or knowledgeable in the field of
trademarks or immune from source confusion.” 8 TTABVUE 13. He concludes,
however, that “the marks have a high degree of similarity and the services are highly
related,” and that “[c]onsumers, regardless of their sophistication, would therefore be
likely to mistake the sources of the parties’ overlapping services.” Id.
We find that purchasers of dentist services and surgery services, including
cosmetic surgery services, would not be uniformly sophisticated, but would likely
exercise more than ordinary care in purchasing the services. The record shows that
dentist services, and surgery services, including cosmetic surgery services, are offered
to “people in all walks of life, at all levels of education and income.” Primrose
Retirement Cmtys., 122 USPQ2d at 1039. “We must therefore presume that [the]
services are offered to both sophisticated and unsophisticated consumers,” and
“[a]ccordingly, the applicable standard of care for the likelihood of confusion analysis
is that of the least sophisticated consumer.” Id. (citing Stone Lion Capital Partners,
L.P. v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014)).
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At the same time, however, the facts that the services all involve the consumer’s
personal health, well-being, and appearance, and that some of the services may be
quite costly, suggest that even the least sophisticated potential purchaser will
exercise more than ordinary care in selecting the source of the services. See id. (“even
in the case of the least sophisticated purchaser, a decision as important as choosing
a senior living community will be made with some thought and research, even when
made hastily.”). We find that the fourth DuPont factor supports a finding that
confusion is not likely.
D. Balancing the DuPont Factors
The first, second, and third DuPont factors support a finding of a likelihood of
confusion because the marks are quite similar, and the services, channels of trade,
and classes of consumers are identical in part and otherwise similar. The fourth
DuPont factor supports a contrary finding because of the nature of the involved
services and the fact that some may be quite costly. But even assuming “that
purchases of Applicant’s and Registrant’s services would involve a deliberative
decision, this does not mean that the purchasers are immune from confusion as to the
origin of the respective services, especially where, as here, the services are legally
identical in part and otherwise related, and offered under” similar marks. Integrated
Embedded, 120 USPQ2d at 1515-16. “In this case, the legal identity or similarity of
the services and similarity of the marks outweigh any sophisticated purchasing
decision.” Id. at 1516 (citing HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819
(TTAB 1989), aff’d, 902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990)). Applicant’s
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ZOMBIE BBL mark could readily be viewed as denoting an extension of the
Registrant’s “dentist services” offered under the ZOMBIE TEETH and ZOMBIE
BRACES mark into “surgery” or “cosmetic surgery” of the sort that the record shows
often results in both sets of services being offered by the same health care provider
under the same mark. See, e.g., Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d
377409, at *7 (TTAB 2019) (“ROAD WARRIOR look, sounds, and conveys the
impression of being a line extension of WARRIOR.”). “Even those purchasers who are
fully aware of the specific differences between the marks may well believe, because
of the similarities between them, that the two marks are simply variants of one
another, used by a single [provider] to identify and distinguish companion lines of
[services].” In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985). We
“find that Applicant’s mark, as used in association with the [“surgery” and “cosmetic
surgery”] services identified in the application, is likely to cause confusion with the
registered mark[s] used in connection with the [“dentist] services[”] recited in the
registration[s].” Integrated Embedded, 120 USPQ2d at 1516.
Decision: The refusal to register is affirmed.