Focus Property Group, LLC Ltd.

Trademark Trial and Appeal Board

Mar 17, 2008

No. 76567880 (T.T.A.B. Mar. 17, 2008)

Mailed: March 17, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

Trademark Trial and Appeal Board
___________

In re Focus Property Group, LLC Ltd.
___________

Serial No. 76567880
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Lauri S. Thompson of Greenberg Traurig for Focus Property
Group, LLC Ltd.

Vivian Micznik First, Trademark Examining Attorney, Law
Office 114 (K. Margaret Le, Managing Attorney).
____________

Before Seeherman, Walters and Holtzman, Administrative
Trademark Judges.

Opinion by Walters, Administrative Trademark Judge:

Focus Property Group, LLC Ltd. has filed an application
to register the standard character mark FOCUS PROPERTY GROUP
on the Principal Register for “real estate listings, leasing
and brokerage services,” in International Class 36.1 The
application includes a disclaimer of PROPERTY GROUP apart
from the mark as a whole.

1 Serial No. 76567880, filed December 31, 2003, based on use of the mark
in commerce, alleging first use and use in commerce as of June 10, 2002.

THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 76567880

2
The examining attorney has issued a final refusal to
register under Section 2(d) of the Trademark Act, 15 U.S.C.
1052(d), on the ground that applicant’s mark so resembles
the mark FOCUS DEVELOPMENT, previously registered for the
services listed below, that, if used on or in connection
with applicant’s services, it would be likely to cause
confusion or mistake or to deceive.
Registration No. 2359956 [registered June 20,
2000; Sections 8 and 15 affidavits accepted and
acknowledged, respectively]:
• “real estate management and real estate
brokerage,” in International Class 36.
• “real estate development, construction,
residential and commercial building and
general contracting,” in International Class
37
• The registration includes a disclaimer
of DEVELOPMENT apart from the mark as a
whole.

Applicant has appealed. Both applicant and the
examining attorney have filed briefs.2 We affirm the
refusal to register.
As a preliminary matter, we note applicant’s objections
in its reply brief to evidence submitted by the examining
attorney with her brief. In her brief, the examining
attorney included, for the first time, a definition of
“focus”; and, attached to her brief, she included

2 In its appeal brief, applicant requested that its application be
amended to seek concurrent use with the cited registrant. After remand
to, and communication with, the examining attorney, applicant withdrew
this request and filed a supplemental brief. The examining attorney
filed her brief and applicant filed a reply brief. All briefs have been
considered.
Serial No. 76567880

3
definitions of “property” and “group.” This is appropriate
subject matter for judicial notice by the Board. However,
we find it unnecessary to exercise our discretion and take
judicial notice of these definitions. Therefore, this
evidence has not been considered.
Our determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on the likelihood of
confusion issue. See In re E. I. du Pont de Nemours and
Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also Palm
Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In
re Majestic Distilling Company, Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).
In considering the evidence of record on these factors,
we keep in mind that “[t]he fundamental inquiry mandated by
Section 2(d) goes to the cumulative effect of differences in
the essential characteristics of the goods and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); and In re
Azteca Restaurant Enterprises, Inc., 50 USPQ2d 1209 (TTAB
1999) and the cases cited therein.

Serial No. 76567880

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Considering, first, the services, we note that both the
application and the cited registration include, in
International Class 36, identical real estate brokerage
services and the remaining services in this class in the
registration and the application are closely related
services that are likely to be offered in connection with
real estate brokerage services. Therefore, there is no need
to further consider the services in registrant’s
identification of goods in International Class 37. This du
Pont factor weighs strongly against applicant.
Moreover, inasmuch as the International Class 36
identifications of services in both the involved application
and the cited registration are not limited to any specific
channels of trade, we presume that the services would be
offered in all ordinary trade channels for these services
and to all normal classes of purchasers. See In re Linkvest
S.A., 24 USPQ2d 1716 (TTAB 1992). Thus, because both the
application and the registration include the identical “real
estate brokerage services,” the trade channels and classes
of purchasers for these services are the same.
Applicant describes itself as “a real estate
development company working with a variety of builders to
create master planned residential communities and commercial
properties in the retail, business and gaming industries”;
and argues that its services are “expensive” (brief, p. 2)
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5
and purchased by discriminating purchasers exercising a high
degree of care.
The examining attorney contends that the record fails
to establish that the services are “expensive”; and that
real estate brokerage services “are presumed to be offered
to a wide range of consumers, many of whom are not likely to
be sophisticated in the real estate field” (brief,
unnumbered p. 4). The examining attorney submitted, in
support of this position, excerpts from four Internet
websites pertaining to real estate services and referring to
first-time and/or inexperienced homebuyers and/or real
estate investors.
We remind applicant that the question of likelihood of
confusion must be determined based on an analysis of the
goods or services recited in applicant’s application vis-à-
vis the goods or services recited in the registration,
rather than what the evidence shows the goods or services
actually are. Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987). See
also, Octocom Systems, Inc. v. Houston Computer Services,
Inc., 918 F.2d 937, 16 USPQ2d 1783 (Fed. Cir. 1992); and The
Chicago Corp. v. North American Chicago Corp., 20 USPQ2d
1715 (TTAB 1991). In this case, neither the application nor
the cited registration contains any limitations as to trade
channels or classes of purchasers of the identified real
Serial No. 76567880

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estate brokerage services. Therefore, applicant’s arguments
regarding the specific nature of its services and the
sophistication of its purchasers are unavailing. “Real
estate brokerage services” encompasses all types of real
estate brokerage transactions as well as all types of
purchasers.
In view of the expense involved in buying or selling a
home, we agree with applicant that even ordinary purchasers
or sellers of a home are going to exercise some degree of
care in choosing a real estate broker. However, because of
the close similarity in the marks, as discussed below, even
consumers who exercise a degree of care are likely to
mistakenly believe that these identical services emanate
from the same source.
Turning, now, to consider the marks, we note that the
test is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of their overall
commercial impressions that confusion as to the source of
the goods or services offered under the respective marks is
likely to result. The focus is on the recollection of the
average purchaser, who normally retains a general rather
than a specific impression of trademarks. See Sealed Air
Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
Furthermore, although the marks at issue must be considered
Serial No. 76567880

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in their entireties, it is well settled that one feature of
a mark may be more significant than another, and it is not
improper to give more weight to this dominant feature in
determining the commercial impression created by the mark.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749
(Fed. Cir. 1985).
The examining attorney contends that FOCUS is the
dominant portion of both marks because it is the first term
in each mark, it is an arbitrary term in connection with the
identified services, and the remaining terms in each mark
are merely descriptive.
Applicant contends that, “even accepting that the
dominant portion of each mark is the term FOCUS” (reply
brief, p. 6), the marks are multi-word marks that,
considered in their entireties, are sufficiently different
in sight, sound, meaning and commercial impression.
Applicant notes that “property group” and “development” have
different meanings and are not “indicative of services
somehow associated with real estate” (brief, p. 6).
Again, applicant’s arguments are not well taken.
First, we agree with the examining attorney, and as
apparently admitted by applicant, that FOCUS is the dominant
portion of each mark. Not only is it the first term in each
mark, but it appears to be arbitrary in connection with the
identified services and the additional wording in each mark,
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while different from each other, is clearly merely
descriptive. When we consider the marks in their
entireties, we consider them to be more similar than
dissimilar, in fact, they are substantially similar.
Therefore, this factor also weighs against applicant.
Applicant contends that applicant and registrant have
coexisted for more than five years without actual confusion.
However, the absence of actual confusion is of little
probative value where we have little evidence pertaining to
the nature and extent of the use by applicant and
registrant. Moreover, the test under Section 2(d) is not
actual confusion but likelihood of confusion. See In re
Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed.
Cir. 2003)(“uncorroborated statements of no known instances
of actual confusion are of little evidentiary value.”). See
also, In re Kangaroos U.S.A., 223 USPQ 1025 (TTAB 1984); and
In re General Motors Corp., 23 USPQ2d 1465 (TTAB 1992).
When we consider the record and the relevant likelihood
of confusion factors, and all of applicant's arguments
relating thereto, including those arguments not specifically
addressed herein, we conclude that in view of the
substantial similarity in the commercial impressions of
applicant’s mark, FOCUS PROPERTY GROUP, and registrant’s
mark, FOCUS DEVELOPMENT, their contemporaneous use on the
same and closely related services involved in this case is
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likely to cause confusion as to the source or sponsorship of
such services.
Decision: The refusal under Section 2(d) of the Act is
affirmed.