Grane Healthcare Co.

Trademark Trial and Appeal Board

Jan 5, 2001

No. 75407280 (T.T.A.B. Jan. 5, 2001)

HEARING: August 8, 2000
Paper No. 11
DEB
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Grane Healthcare Co.
________
Serial No. 75/407,280
_______
Raymond J. Harmuth of Deopken Keevican & Weiss, P.C. for Grane
Healthcare Co.
Angela Bishop Wilson, Trademark Examining Attorney, Law Office
111 (Craig Taylor, Managing Attorney).
_______
Before Hairston, Wendel and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
An application has been filed by Grane Healthcare Co. to
register the mark “AMBER WOODS” for use in connection with
“assisted living care centers” in International Class 42.1
Registration has been finally refused under Section 2(d)
of the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when applied to the identified services, so
resembles the mark “AMBERCARE” which is registered for “home
health care services,” also in International Class 42,2 as to
be likely to cause confusion, to cause mistake or to deceive.
1 Ser. No. 75/407,280, filed on December 12, 1997, which alleges
dates of first use of July 1, 1997.
2 Registration No. 2,034,357, issued January 28, 1997.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
1/5/01
Serial No. 75/407,280
2
Applicant has appealed. Briefs have been filed, and at
applicant’s request, an oral hearing was held on August 8,
2000.
We affirm the refusal to register.
We turn first to a consideration of the services herein.
Applicant asserts that assisted living centers are markedly
different from home health care services. In urging reversal
of the refusal to register, applicant maintains that the
Trademark Examining Attorney’s submission of third-party
registrations allegedly demonstrating that entities provide
both services is irrelevant because these registrations do not
show that the services are marketed together. Moreover,
applicant argues that the Trademark Examining Attorney has
misinterpreted evidence from the Internet by giving too broad
a definition to “assisted living” by including “home health
care” therein.
It is well settled that services need not be identical or
even competitive in nature in order to support a finding of
likelihood of confusion. Instead, it is sufficient that the
services are related in some manner and/or that the
circumstances surrounding their marketing are such that they
would be likely to be encountered by the same persons under
circumstances that would give rise, because of the marks used
in connection therewith, to the mistaken belief that they
Serial No. 75/407,280
3
originate from or are in some way associated with the same
producer or provider. See Monsanto Co. v Enviro-Chem Corp.,
199 USPQ 590, 595-96 (TTAB 1978); and In re International
Telephone & Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
The Trademark Examining Attorney argues as follows:
The applicant provides assisted living care
centers. The registrant provides home health
care services. These services are often
marketed to the same class of purchasers,
namely, elderly persons or disabled persons.
Residents of assisted living care facilities
are helped with daily living tasks and provided
medical care. Similarly, persons who require
home health care services are assisted with
daily tasks and provided health care. The
distinction between the two services is that in
one instance the consumer is residing at home,
and in the other instance the consumer is
living in a facility … (brief, pp. 3-4).
Accordingly, even if we were to accept the applicant’s
position that “assisted living care centers” is not broad
enough to include “home health care services,” that is not the
end of the inquiry. The proper question is whether these two
types of services are “related in some manner” such that
consumers would mistakenly believe that they are in some way
associated with the same provider? These services are
generally offered to aged, ill or injured persons who have
gotten to the place that they need assistance with living.
Applicant and registrant, in their respective promotional
fliers both emphasize a caring approach, compassion and
Serial No. 75/407,280
4
understanding, maximizing the client’s independence, and the
availability of professionals 24-hours a day, etc. Both
strive to provide personalized supportive services and health
care designed to meet the needs of those who need help with
activities of daily living. The primary difference: only one
provides housing.
The Trademark Examining Attorney also makes the argument
that applicant’s assisted living services may well be seen as
being within registrant’s natural zone of expansion:
It is not uncommon for persons [who] initially
utilize home health care services to later move
to an assisted living care center. For a
person [who values her] independence, assisted
living care centers are an attractive
alternative to a long care center, when home
health care is no longer an option due to a
change in circumstances … (Trademark Examining
Attorney’s appeal brief, p. 5).
A senior citizen having the provision of home health care
through an independent living residence or in her own home,
for example, may be compelled by health problems to move to an
assisted living center or even seek nursing home care. Each
represents a distinct link along a continuum of long-term care
options. In fact, the third-party registrations made part of
this record demonstrate that some entities do indeed apply the
same service mark to several points along this continuum.
Applicant argues that registrant’s home health care
services are marketed to physicians while its services are
Serial No. 75/407,280
5
promoted directly to potential consumers and their family
members. We note, however, that the literature of both
parties focuses on the important role of family caregivers,
and we have to assume that a significant portion of
registrant’s business also comes from direct patient inquiries
as well as the queries of the family members of such patients.
Certainly, as the Trademark Examining Attorney points out,
neither recital herein has any limitations on the respective
parties’ channels of trade.
Furthermore, physicians are inevitably a critical part of
the care-giving team for any senior citizen or injured
individual. Hence, it stands to reason that a portion of
registrant’s home health care business and applicant’s
assisted living center business would result from physician
referrals. Finally, there is nothing in the record to suggest
that physicians without direct experience with home health
care providers or assisted living centers have the expertise
readily to differentiate among similarly-named, long-term care
providers. Accordingly, although the purchase of these long-
term care services is not normally an impulsive decision, we
believe that even relatively sophisticated professionals and
referring institutions are likely to be confused because of
the similarities of the marks.
Serial No. 75/407,280
6
While we agree with applicant that “… the costs
associated with assisted living care centers and home health
care services are relatively [high]…” and hence prospective
purchasers would be more discerning than is the case with a
routine transaction, by the same token we are not convinced
that most consumers seeking out long-term care could
necessarily be deemed “sophisticated.”
Applicant points out that the Pittsburgh/Allegheny County
classified directory uses separate headings for “assisted
living and elder care centers” and for “home health care
services.” As noted above, we acknowledge they are not
identical inasmuch as one category offers a residential
component while the other does not. However, to the extent
that we deem these to be alternative approaches to long-term
care, how they are handled in the world of classified
directories is irrelevant to our likelihood of confusion
analysis.
With respect to the marks, it is well settled that marks
must be compared in their entireties. Nevertheless, in
articulating reasons for reaching a conclusion on the issue of
likelihood 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
Serial No. 75/407,280
7
entireties.” In re National Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985). For instance, “that a
particular feature is descriptive or generic with respect to
the involved goods or services is one commonly accepted
rationale for giving less weight to a portion of a mark. …”
224 USPQ at 751.
Here, the dominant element of registrant’s AMBERCARE mark
is the arbitrary term AMBER inasmuch as the word CARE is
highly descriptive of health care services. The word AMBER is
also the dominant element of applicant’s mark, AMBER WOODS.
Again, AMBER appears to be totally arbitrary, while the word
WOODS is at least suggestive – “Amber Woods sits on 13 wooded
acres in northern Allegheny County…” (from applicant’s
brochure, emphasis supplied).
In view thereof, while differences admittedly exist
between the marks when viewed on the basis of a side-by-side
comparison,3 when considered in their entireties, applicant’s
AMBER WOODS mark is substantially similar to registrant’s
3 Such a comparison, however, is not the proper test to be used in
determining the issue of likelihood of confusion inasmuch as it is
not the ordinary way that customers will be exposed to the marks.
Instead, it is the similarity of the general overall commercial
impression engendered by the marks that must determine, due to
fallibility of memory, whether confusion as to source or sponsorship
is likely. The proper emphasis is on the average purchaser who
normally retains a general rather than a specific impression of
marks. See, e.g., Envirotech Corp. v. Solaron Corp., 211 USPQ 724,
733 (TTAB 1981).
Serial No. 75/407,280
8
AMBERCARE mark. The first two syllables of these three
syllable marks look and sound the same. Moreover, even if
consumers were to notice the differences in the second word
(or third syllable) in each of the respective marks, they may
well believe that due to the shared term AMBER, the
residential care offered by applicant under its AMBER WOODS
mark represents an expanded service from the same source as
the company which offers home health care under the AMBERCARE
mark.
Decision: The refusal to register is affirmed.