Jenkins Chiropractic, Ltd.

Trademark Trial and Appeal Board

Mar 4, 2008

No. 78710701 (T.T.A.B. Mar. 4, 2008)

Mailed:
March 4, 2008
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Jenkins Chiropractic, Ltd.
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Serial No. 78710701
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Cheryl Fernandez for Jenkins Chiropractic, Ltd.

Pamela Y. Willis, Trademark Examining Attorney, Law Office
106 (Mary I. Sparrow, Managing Attorney).
_______

Before Quinn, Bucher and Bergsman, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Jenkins Chiropractic, Ltd. seeks registration on the
Principal Register of the mark CORE4TRAINING (in
standard character format) for services recited in the
application, as amended, as follows:
“video recordings featuring instruction of
postural techniques for the improvement of
posture and promotion of safety and
efficiency in movement, by a chiropractor or
an instructor certified in training such
postural techniques” in International Class
9;
and
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78710701
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“instruction of postural techniques for the
improvement of posture and promotion of
safety and efficiency in movement, namely
seminar and one-on-one education,
consultation, training and therapy, by a
chiropractor or an instructor certified in
training such postural techniques” in
International Class 41.1
This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this designation based upon Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d). The Trademark
Examining Attorney has found that applicant’s mark, when
used in connection with the identified goods, so resembles
the mark CORE 4 (in standard character format) registered in
connection with “physical fitness consultation services;
physical fitness instruction and training services” in
International Class 41, as to be likely to cause confusion,
to cause mistake or to deceive.
The Trademark Examining Attorney and applicant have
briefed the substantive issues of the case. We reverse the
refusal to register.

1 Application Serial No. 78710701 was filed on September 12,
2005 based upon applicant’s allegation of first use anywhere in
connection with the goods in class 9 at least as early as March
9, 2005 and first use in commerce at least as early as March 14,
2005, and applicant’s allegation of first use anywhere and first
use in commerce at least as early as June 16, 2004 in connection
with the services in class 41.
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In arguing for registrability, applicant contends that
there is no likelihood of confusion because the respective
goods and services are so very different and that they will
be moving through different channels of trade to different
classes of sophisticated purchasers.
By contrast, the Trademark Examining Attorney contends
that registrant’s broadly-defined physical fitness services
could encompass applicant’s more narrowly defined services,
and it is possible that physical fitness providers could be
the source of video recordings of the kind marketed by
applicant.
LIKELIHOOD OF CONFUSION
Our determination under Section 2(d) is based upon an
analysis of all of the probative facts in evidence that are
relevant to the factors bearing on this issue. In re E. I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the relationship of the goods and/or services. Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976).
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The marks
We turn first to the du Pont factor that focuses on
the similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1692 (Fed. Cir. 2005).
In making this determination, our focus should be
placed on the recollection of the average consumer who
normally retains a general rather than a specific
impression of trademarks. Sealed Air Corp. v. Scott Paper
Co., 190 USPQ 106 (TTAB 1975).
While we must consider the marks in their entireties,
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. See In
re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed.
Cir. 1985) [CASH MANAGEMENT ACCOUNT found confusingly similar
to THE CASH MANAGEMENT EXCHANGE].
The Trademark Examining Attorney has taken the
position that applicant’s CORE4TRAINING and registrant’s
CORE 4 both lead with the word “Core” followed by the number
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“4.” As to a difference in appearance, the absence of a
space within applicant’s mark is of no significance for
purposes of our likelihood of confusion determination.
When spoken, the first two syllables of applicant’s mark
are identical to registrant’s mark in its entirety.
As to connotation, the Trademark Examining Attorney
points out that applicant has appropriated registrant’s
mark in its entirety, and has simply added as a suffix
thereto the generic name of its goods and services,
“training.” While there are situations where the addition
of a new term to a registered mark does obviate the
similarity between the marks such that it can overcome a
likelihood of confusion under Section 2(d), generally this
is not the case with the addition of a generic term.
The word “Core” followed immediately by the identical
numeral “4” creates the commercial impression for both of
these marks. There is no evidence or discussion in the
record about the strength or weakness of the word “Core”
for these services and goods. However, as noted by the
Trademark Examining Attorney, at the time of preparing its
brief, applicant did not even discuss the dissimilarities
of the marks.
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Accordingly, we find these marks are quite similar as
to appearance, sound, connotation and commercial
impression, and this du Pont factor favors a finding of
likelihood of confusion.
The goods and services
As seen above, the services in the cited registrations
are recited as “physical fitness consultation services;
physical fitness instruction and training services.”
Applicant’s goods and services involve chiropractic
instruction in postural techniques, and the video
recordings of the same.
While applicant claims that its goods and services are
totally different from registrant’s, the Trademark
Examining Attorney contends that they are similar in that
“all are related to some sort of physical activity.”
Although applicant’s specimens of record refer to “Core
Fitness Classes,” we are faced with applicant having
severely narrowed its goods and services after the initial
refusal to register. The Trademark Examining Attorney
argues in her brief that “there is no information firmly
stating that [applicant’s] goods/services cannot be
performed in conjunction with the registrant’s services”
and there is “nothing in applicant’s identification of
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goods to indicate that physical fitness providers could not
at the same time provide applicant’s video recordings.”
Even if we suspected that the Trademark Examining
Attorney may be right about the relationship between
instruction in physical fitness and chiropractic
instruction in postural techniques, we find no evidence in
this sparse record on which to base such a conclusion. At
the time of the final refusal to register and the response
to the request for reconsideration, applicant’s services
were limited to chiropractic instruction in postural
techniques. Yet the Trademark Examining Attorney provided
no evidence that these services are related. We are
certainly not permitted to resort to our own personal
experiences to find a relationship. In the absence of any
probative evidence in the record, applicant’s original,
much broader identification of goods/recitation of services
is insufficient to support the Trademark Examining
Attorney’s contention that physical fitness services of the
type offered by registrant would encompass applicant’s
chiropractic instruction in postural techniques. While it
is a fact that applicant has offered very little for this
record other than advocacy in the form of conclusory
opinions, it is the burden of the Trademark Examining
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Attorney to make a prima facie case of the relatedness of
the services herein, and we find that she has failed to do
so on this record.
Decision: The refusal to register under Section 2(d)
of the Act is hereby reversed.