Kid’s Choice Dental, Inc.

Trademark Trial and Appeal Board

May 1, 2007

No. 78717522 (T.T.A.B. May. 1, 2007)

Mailed:
May 1, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Kid’s Choice Dental, Inc.
________

Serial No. 78717522
_______

Paul Adams of The Adams Law Firm for Kid’s Choice Dental,
Inc.

S. David Sterkin, Trademark Examining Attorney, Law Office
110 (Chris A. F. Pedersen, Managing Attorney).
_______

Before Hairston, Walsh and Bergsman, Administrative
Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Kid’s Choice Dental, Inc. filed an intent-to-use
application to register the mark shown below for
“dentistry.”1 During the prosecution of the application,
applicant filed an amendment to allege use claiming
November 1, 2004 as the date of first use anywhere and
first use in commerce.

1 Application Serial No. 78717522, filed September 21, 2005.
Applicant disclaimed the exclusive right to use “Kid’s” and
“Dental.”
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 78717522
2

Registration No. 2,497,011 for the mark KIDCHOICE for
“health care services” was cited as a bar to registration.2
Registration was refused under Section 2(d) of the Lanham
Act, 15 U.S.C. §1052(d). When the refusal was made final,
applicant appealed. The refusal has been fully briefed.
We affirm.
The record
The examining attorney submitted the following
relevant evidence to prove likelihood of confusion:
1. Twenty (20) registrations of marks owned by
fourteen (14) third parties for both health care
services and dentistry;

2. Excerpts from the web pages of Aetna (aetna.com),
U.S. Department of Health and Human Services
(http://ask.hrsa.gov/pc/), Cigna (cigna.com),
University of Medicine & Dentistry of New Jersey
(umdnj.edu) evidencing that these entities treat
or cover both health care services and dental
services;3

2 Registration No. 2,497,011, issued October 9, 2001.

3 The Denplan web page is from a company in the United Kingdom
(denplan.co.uk), and the CHP web page is from an organization in
Canada (htpp://chp-pcs.gs.ca), and therefore, they have not been
given any consideration in our analysis.

We also note that the examining attorney submitted the Aetna and
Cigna web pages three times, including twice in response to the
applicant’s request for reconsideration (perhaps for different
reasons, but it is hard to tell because the exhibits are not
labeled or discussed in detail).
Serial No. 78717522
3
3. An excerpt from the Medline Plus web page
(nlm.nih.gov/directories.html) showing that this
directory of health professionals categorizes
dentists as a subsection of health professionals;
and,

4. “Choosing and Using a Health Plan” from the
www.ahrq.gov/consumer/hlthpln1.htm website. The
discussion of health plans distinguishes between
basic medical coverage and dental services.
Nevertheless, the author acknowledges that dental
plans may be part of a comprehensive health plan.

In responding to the likelihood of confusion refusal,
applicant submitted the declaration of Susie Newman,
litigation paralegal for applicant’s counsel,
authenticating Internet searches she conducted on behalf of
applicant. Applicant submitted the following searches
through Ms. Newman’s declaration:
1. A “Google” search for “define: Health Care”;

2. A “Google” search for “define: Health Care
Services”;

3. A “Google” search for “define: Dentistry”;

4. A “Google” search for “Health Care Dental”;

5. A “Google” search for “Health Care Services”;
and,

6. A “Google” search for “Dentistry”.

Evidentiary Matters
At the outset, a discussion of the evidence is
necessary. With respect to applicant’s “Google” search
results for “Health Care Dental,” “Health Care Services,”
Serial No. 78717522
4
and “Dentistry,” applicant submitted only the “hit list” of
results and not relevant excerpts from the underlying
websites.4 In this instance, the “hit list” is of no
probative value because there is insufficient content to
prove the point for which the search was conducted (i.e.,
that health care services and dentistry are distinct
fields).5 See In Remacle, 66 UPSQ2d 1222, 1223 n.2 (TTAB
2002); In re Fitch IBCA Inc., 64 UPSQ2d 1058, 1060 (TTAB
2002).
The examining attorney submitted third-party
registrations as part of his evidentiary showing three
times during the course of the prosecution of this
application: (i) with the initial refusal; (ii) with the
final refusal; and, (iii) with the response to the request
for reconsideration. In addition, the examining attorney
submitted duplicate and triplicate copies of those
registrations. For example, the following registrations
were submitted three different times during the prosecution
of the application for the same purpose (i.e., to show that
health care services and dentistry emanate from the same
source):
1. Registration No. 2,943,814 for a design mark;

4 Ms. Newman summarized the content of the underlying websites.
5 The “Google” search results that provided definitions of
“health care” and “dentistry” were relevant because they provided
sufficient text to determine the nature of the information.
Serial No. 78717522
5
2. Registration No. 2,904,357 for the mark MAYO
CLINIC and Design; and,

3. Registration No. 2,885,588 for the mark WELLSPAN
HEALTH and Design.

Four (4) other registrations were submitted twice.
Finally, some of the registrations submitted by the
examining attorney were not relevant to show that health
care services and dentistry emanate from the same source.
For example, Registration No. 2,904,810 for a design mark
is registered for “charitable and eleemosynary services for
children, namely, to solicit and provide nutritional
counseling, dental care, health care, medicine,
psychological evaluation and family counseling for
orphaned, disadvantaged, neglected and abandoned children
(in other words, charitable fundraising services, not
dental or health care services); and Registration No.
2,906,656 for the mark AFFILIATED MONITORS, LLC INTEGRITY
THROUGH COMPLIANCE for “compliance monitoring services,
namely, reviewing standards and practices to assure
compliance with laws and regulations in the fields of . . .
medicine . . . dentistry . . . home health care” (in other
words, monitoring services, not dental or health care
services).

Serial No. 78717522
6
Suffice it to say that the better practice would have
been for the examining attorney to have submitted a truly
representative sample of the third-party registrations with
his initial refusal, and not to add cumulative
registrations with each additional office action. In
addition, the examining attorney should have reviewed his
evidentiary showing to ensure relevancy and to eliminate
redundancy.
Likelihood of confusion
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. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 UPSQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods and/or services. Han Beauty Inc. v. Alberto-
Culver Co., 236 F.3d 1333, 57 UPSQ2d 1557, 1559 (Fed. Cir.
2001); Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).

Serial No. 78717522
7
A. The similarity or dissimilarity of the marks.
With respect to the marks, we must determine whether
applicant’s mark and registrant’s mark, when compared in
their entireties, are similar or dissimilar in terms of
sound, appearance, connotation and commercial impression.
In re E.I. du Pont de Nemours & Co., supra. While marks
must be compared in their entireties, it is not improper to
accord more or less weight to a particular feature of a
mark. In re National Data Corp., 753 F.2d 1056, 224 UPSQ
749, 751 (Fed. Cir. 1983). That a particular feature of a
mark is descriptive with respect to the goods and services
at issue (i.e., the word “Dental” in connection with
dentistry) is one reason for giving less weight to that
portion of the mark. Id.
Furthermore, 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 commercial impression that confusion as to
source of the goods and 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, 108
(TTAB 1975); Winnebago Industries, Inc. v. Oliver &
Serial No. 78717522
8
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980). In this
regard, it is not unusual for consumers to shorten or
abbreviate marks. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 219 (CCPA 1978)(Rich, J.,
concurring)(“the users of language have a universal habit
of shortening full name – from haste or laziness or just
economy of words”); Marshall Field & Co. v. Mrs. Fields
Cookies, 12 UPSQ2d 1321, 1333 (TTAB 1992) (“companies are
frequently called by shortened names, such as Penney’s for
J.C. Penney’s, Sears for Sears and Roebuck (even before it
officially changed its name to Sears alone), Ward’s for
Montgomery Ward’s, and Bloomies for Bloomingdale’s). We
regard it as inevitable that applicant’s patients and
prospective patients will refer to KID’S CHOICE DENTAL as
“Kid’s Choice.”
With respect to the design portion of applicant’s
mark, in analyzing a composite mark comprising words and a
design, the word portion of the mark (i.e., KID’S CHOICE
DENTAL) is usually considered the dominant part of a mark
because it is more easily remembered and used in
communications. Consumers will not reference the
toothpaste tube when asking for or discussing applicant’s
dental services. CBS Inc. v. Morrow, 708 F.2d 157 9, 218
Serial No. 78717522
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USPQ 198, 200 (Fed. Cir. 1983); In re Appetito Provisions
Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987).
In view of the foregoing, we find that applicant’s
mark KID’S CHOICE DENTAL and Design and the registrant’s
mark KIDSCHOICE are highly similar. Although there are
clearly some visual differences in the marks, including the
design portion of applicant’s mark, the dominant portion of
the marks KID’S CHOICE and KIDSCHOICE are virtually
identical. Thus, the overall similarities in appearance
outweigh any the dissimilarities.
As for the sound of the marks, clients or patients
will refer to both marks as “Kid’s Choice, therefore the
overall sound of the marks will be the same.
Both marks have the same connotation. “Kid’s Choice”
means that children prefer either applicant or registrant.
As a result, both marks engender the same commercial
impression: children will choose applicant and registrant.
We find, therefore, that the marks are similar.
B. The similarity or dissimilarity of the services.
In analyzing the similarity or dissimilarity of the
services, we start with the well-settled proposition that
it is not necessary that the services of the parties be
identical or even competitive to support a finding of
likelihood of confusion. Likelihood of confusion may be
Serial No. 78717522
10
found if the respective services are related in some manner
and/or if the circumstances surrounding their marketing are
such that they would be likely to be encountered by the
same persons under conditions that could give rise to the
mistaken belief that they emanate from the same source. In
re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1469 (TTAB 1988);
Monsanto Co. v. Enviro-Chem Corp., 199 USPQ 590, 595-596
(TTAB 1978).
As discussed previously, the examining attorney has
made of record a number of use-based third-party
registrations that show that various entities have adopted
a single mark for services that are identified in both
applicant’s application and the cited registration. Third-
party registrations which individually cover a number of
different items and which are based on use in commerce may
serve to suggest that the listed goods or services are of a
type that may emanate from a single source. In re Mucky
Duck Mustard Co., supra at 1470 n.6; In re Albert Trostel &
Sons Co., 29 UPSQ2d 1783, 1786 (TTAB 1993). See for
example:
1. Registration No. 2,943,814 for a design mark for
inter alia dentistry, wellness and home health
care services, and medical services, namely,
treating and managing illness;

2. Registration No. 2,838,475 for the mark DKH for
inter alia comprehensive health care services,
Serial No. 78717522
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namely inpatient, outpatient, and emergency
medical services; physician services and
physician managed health care services; and
”dental medicine services”; and,

3. Registration No. 2,723,499 for the mark HEALTH IS
OUR MIDDLE NAME for inter alia health care
services and dental health care services.

In addition, there were a number of third-party
registrations where dental services were treated as a
subsection of health care services. See for example:
1. Registration No. 2,904,357 for the mark MAYO
CLINIC and Design for “medical and health care
services, namely, clinical services, physician
services, dentistry services, medical testing
services, and nursing care services”;

2. Registration No. 3,028,333 for the mark DEDICATED
DENTAL THE DEDICATED DIFFERENCE! For “dentistry
and health care services in the nature of dental
health maintenance organizations”;

3. Registration No. 2,690,049 for a design mark for
“healthcare services, namely, hospital care,
nursing services . . . providing medical
information and medical counseling in the fields
of wellness and healthy lifestyles . . .
dentistry . . . home health care.”

The foregoing evidence demonstrates the existence of
at least a viable relationship between the services at
issue.
Contrary to the examining attorney’s contention that
registrant’s “health care services” encompass applicant’s
“dentistry,” there is no evidence that “health care” and
“dentistry” are synonymous or that dentistry is encompassed
Serial No. 78717522
12
by the term “health care.”6 However, the web pages from the
insurance companies evidence that the insurance companies
cover both general health care and dentistry. Although
general health care and dentistry are treated separately,
the fact that the same companies will insure both
specialties under the rubric of “health insurance,” lends
some support to the contention that the general public will
perceive health care and dentistry as related enough to
cause confusion as to the source of the services.
We conclude the similarity or dissimilarity of the
services is a factor that favors finding that there is a
likelihood of confusion.
C. Channels of trade.
Applicant is seeking to register its mark for
“dentistry,” and registrant’s mark is registered for
“health care services.” There are no limitations or
restrictions in either description of services. Our
determination of likelihood of confusion is based on the
description of services as they are recited in the
application and registration, and we do not read

6 None of the definitions for “health care” submitted by either
applicant or the examining attorney reference or mention
dentistry, and none of the definitions for dentistry mention
health care. We note that there are some references to dental
health care, but those references are directed specifically to
oral health, and not to health care in general. In other words,
dentistry is treated as a separate and distinct field.
Serial No. 78717522
13
limitations into those descriptions. If there are no
limitations to the nature of the services, channels of
trade, or classes of purchasers in the registration or
application, we must presume that the services described
therein move in all channels of trade normal for the
services, and that they are readily available to all
classes of purchasers. Octocom Systems Inc. v. Houston
Computer Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1987); CBS Inc. v. Morrow, 780 F.2d 1579, 218
UPSQ 198, 199 (Fed. Cir. 1983); In re Elbaum, 211 USPQ 639,
640 (TTAB 1981). Thus, for purposes of our analysis,
registrant’s health care services and applicant’s dentistry
services are rendered to all consumers, including ordinary
consumers. Since the third-party registrations serve to
suggest that health care services and dentistry services
may emanate from the same source, they also serve to
suggest that those services move in the same channels of
trade (i.e., the services are rendered by the same sources
and they are offered to ordinary consumers). After
considering all the evidence, we conclude that the channels
of trade are a factor that favors finding that there is a
likelihood of confusion.

Serial No. 78717522
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D. The degree of consumer care.

Applicant contends that degree of consumer care is a
factor that favors finding no likelihood of confusion
because medical and dental services are expensive and
consumers exercise a high degree of care in choosing health
care professionals.
Even though we can make certain suppositions about the
degree of care consumers exercise when selecting health
care and dental providers, as with the other du Pont
factors, the degree of care cannot be “supposed,” it must
be supported by evidence. The issue of care includes the
degree to which consumers consider the marks and the
process by which consumers select health care providers.
Unfortunately, there is no such evidence, and consequently,
there is no evidence regarding the degree of care exercised
by relevant consumers.
As we indicated previously, since there are no
limitations on either the registrant’s services or the
applicant’s services, these services are rendered to all
consumers, including ordinary consumers. That means that
there are both careful, discerning consumers and consumers
who are not so careful and discerning.
Nevertheless, we agree with applicant that in view of
the cost and importance of health care and dental care,
Serial No. 78717522
15
consumers will exercise a relatively high degree of care in
selecting their health care and dental provider.
E. Balancing the factors.
The close similarity of the marks, the services, and
the channels of trade far outweigh the degree of care in
which consumers may choose their health care and dental
providers. Because the marks are substantially similar, we
believe that consumers may believe that KID’S CHOICE DENTAL
services are related to, sponsored by, or affiliated with
KIDSCHOICE health care services. In view thereof, KID’S
CHOICE DENTAL and Design used in connection with
“dentistry” so closely resembles KIDSCHOICE for “health
care services” as to be likely to cause confusion.
Decision: The refusal to register is affirmed.