88449477 (T.T.A.B. Sep. 27, 2021)

LGI Homes, Inc.

Trademark Trial and Appeal BoardSep 27, 2021

88449477 (T.T.A.B. Sep. 27, 2021)

This Opinion is not a Precedent of the TTAB Mailed: September 27, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re LGI Homes, Inc. _____ Serial Nos. 88449446 and 884494771 _____ John C. Cain of Fleckman & McGlynn, PLLC, for LGI Homes, Inc. Jeanine Gagliardi, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Kuhlke, Shaw and Larkin, Administrative Trademark Judges. Opinion by Shaw, Administrative Trademark Judge: LGI Homes, Inc. (“Applicant”) seeks registration on the Principal Register of the marks COMPLETEHOME and COMPLETEHOME PLUS, in standard characters, 1 Because the appeals involve the same issues and nearly identical records, we hereby consolidate them and issue a single opinion for both appeals. Citations to the record are to Serial No. 88449446, unless otherwise noted, and refer to the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system’s online database, by page number, in the downloadable .pdf format. Serial Nos. 88449446 and 88449477 - 2 - for “New residential interior building construction services,” in International Class 37.2 The Trademark Examining Attorney refused registration of Applicant’s marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of likelihood of confusion with the mark COMPLETEHOME, in typed form, registered for the following services: Real estate agents, the purchase, sale and rental of real estate via websites on global computer networks, in International Class 36, Providing information in the field of home repair and remodeling services and products via websites on global computer networks, in International Class 37, and Providing information in the fields of home decorating products and services via websites on global computer networks, in International Class 42.3 When the refusals were made final, Applicant appealed and requested reconsideration. The Examining Attorney denied the requests for reconsideration, and the appeals resumed. Both Applicant and the Examining Attorney filed briefs. We affirm the refusals to register. 2 Application Serial Nos. 88449446 (“the ’446 application”) and 88449477 (“the ’477 application”), both filed on May 28, 2019, based upon Applicant’s allegation of a bona fide intention to use the marks in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). 3 Registration No. 2678512, issued January 21, 2003; renewed. A mark in typed form is the legal equivalent of a standard character mark. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 n.2 (“[U]ntil 2003, ‘standard character’ marks formerly were known as ‘typed’ marks”). Serial Nos. 88449446 and 88449477 - 3 - Likelihood of Confusion Our determination of the issue of likelihood of confusion is based on an analysis of all the probative facts in evidence relevant to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973) (“DuPont”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We must consider each DuPont factor for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations are the similarities between services and the similarities between the marks. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”). A. The number and nature of similar marks for similar services Before reaching the degree of similarity of the marks, we address Applicant’s evidence and argument under the sixth DuPont factor, “[t]he number and nature of similar marks in use on similar goods [or services],” DuPont, 177 USPQ at 567, as this may impact the scope of protection accorded the cited registration. The Federal Circuit has held that evidence of the extensive registration and use of similar marks by others in the field can be powerful evidence of a mark’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015). Serial Nos. 88449446 and 88449477 - 4 - Of course, because Registrant’s mark is registered, it is presumptively valid and distinctive for the identified services. Trademark Act Sections 7(b) and 33(a), 15 U.S.C. §§ 1057(b) and 1115(a); In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007). Nonetheless, we may acknowledge the weakness of a registered mark in the course of a DuPont analysis. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1517-18 (TTAB 2016). Applicant argues that “[b]ecause of the widespread third-party use of both COMPLETE and HOME formatives in International Class 37 with respect to building and construction services generally, marks including those terms are entitled to a narrow scope of protection, and can coexist on the register.”4 In support, Applicant submitted twenty-six registrations for marks including the words COMPLETE or HOME, and covering real estate development, as well as various home construction and repair services. The following are the most relevant:5  COMPLETE BUILDING SERVICES (registered under Section 2(f), BUILDING SERVICES disclaimed)  COMPLETE FLOOR SOLUTIONS (FLOOR disclaimed)  SERVICE COMPLETE  McLENDON COMPLETE HARDWARE and design (COMPLETE HARDWARE disclaimed) 4 Applicant’s Br., p. 5, 7 TTABVUE 6. 5 August 17, 2020 Response to Office Action, TSDR pp. 12-49. Serial Nos. 88449446 and 88449477 - 5 -  COMPLETE DOCUMENTATION TOTAL ASSET VISIBILITY (COMPLETE DOCUMENTATION disclaimed)  DESIGNING THE COMPLETE ENVIRONMENT  THE DAY HUSBAND COMPLETE YOUR HONEY DO LIST!  FROM CLAIM TO COMPLETE NO ONE CAN COMPETE  U.S. HOME (registered under Section 2(f))  PROHOME  KBHOME and design  E-HOME  A-HOME  FOREVER HOME  SUITEHOME  HOME PRO (registered under Section 2(f))  ONEHOME and Design  HEROES AT HOME  STREET TO HOME  HOUSE TO HOME  BOZZUTO BRINGS YOU HOME  HOMESAVIORS  HOMEMAX  HOMESMART Serial Nos. 88449446 and 88449477 - 6 -  @HOME REAL ESTATE LOUNGE AND DESIGN CENTER and design (REAL ESTATE LOUNGE AND DESIGN CENTER disclaimed) Because Applicant did not provide evidence of any third-party use of marks consisting of or comprised of the terms COMPLETE or HOME, we have no evidence of commercial weakness. See Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005) (“Evidence of third-party use of similar marks on similar goods [or services] is relevant to show that a mark is relatively weak and entitled to only a narrow scope of protection.”). Third-party registrations alone may be relevant, in the manner of dictionary definitions, “to prove that some segment of the [marks] has a normally understood and well recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, 115 USPQ2d at 1675 (internal quotation marks omitted). See also Jack Wolfskin, 116 USPQ2d at 1136. The foregoing registrations therefore impact the conceptual strength of COMPLETE or HOME formative marks. The fact that a number of COMPLETE or HOME formative marks have been registered for use in connection with real estate development, and various home construction and repair services indicates that COMPLETE or HOME in this context suggest the services are thorough, or involve homes, respectively. Thus, we agree with Applicant that COMPLETE or HOME formative marks have some conceptual Serial Nos. 88449446 and 88449477 - 7 - weakness in association with real estate development, and various home construction and repair services. None of the cited third-party registrations, however, consist of the terms COMPLETE and HOME together. That is, these marks include only a portion of the marks at issue. In addition, all of the marks listed by Applicant have other matter besides COMPLETE or HOME to distinguish them from each other and from the involved marks. Only Applicant’s and Registrant’s marks include both COMPLETE and HOME. These third-party registrations do not establish that COMPLETEHOME as a whole is entitled to a narrower scope of protection. See In re Merck & Co., Inc. 189 USPQ 355, 356 (TTAB 1975) (third-party registrations showing frequent adoption of the letter “M” as a portion of composite mark do not establish that registrant’s mark M-VAC as a whole is weak and entitled to limited protection). Based upon the totality of the record evidence, we find that the registered mark is only somewhat suggestive and inherently distinctive as applied to the identified services. The mark in the cited registration is entitled to an ordinary scope of protection to be afforded an inherently distinctive mark. King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109-10 (CCPA 1974); Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1347 (TTAB 2017) (“[A] mark on the Principal Register without a claim of acquired distinctiveness and not shown to be weak or strong receives “the normal scope of protection to which inherently distinctive marks are entitled.”). Serial Nos. 88449446 and 88449477 - 8 - Applicant’s third-party evidence thus fails to undermine the strength of Registrant’s mark, either commercially or conceptually, and the sixth DuPont factor is neutral. B. The similarity or dissimilarity of the marks in their entireties in terms of appearance, sound, connotation and commercial impression. We next consider the DuPont factor relating to the similarity of the marks. In comparing the marks in their entireties we must consider their appearance, sound, connotation and commercial impression. Palm Bay, 73 USPQ2d at 1692. Similarity as to any one of these factors may be sufficient to support a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988). Applicant’s marks are COMPLETEHOME and COMPLETEHOME PLUS in standard characters, whereas Registrant’s mark is COMPLETEHOME, in typed form. Applicant’s COMPLETEHOME mark in the ’446 application is identical to the cited mark. Applicant does not argue otherwise. Applicant’s COMPLETEHOME PLUS mark in the ’477 application is in part identical to the cited mark, differing only by the addition of the term PLUS. The Examining Attorney argues that “the wording COMPLETEHOME is the dominant source-indicating element in the applied-for mark.” “[I]t is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered.” Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897 (TTAB Serial Nos. 88449446 and 88449477 - 9 - 1988); see also Palm Bay, 73 USPQ2d at 1692; In re Integrated Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016). We agree with the Examining Attorney that this general principle applies to the COMPLETEHOME PLUS mark, especially because the word PLUS is laudatory and thus weak as a source identifier.6 COMPLETEHOME is the portion of Applicant’s mark that would “make an impression upon purchasers that would be remembered and relied upon to identify the goods [and services] . . . .” In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987). Again, Applicant does not argue otherwise. In terms of appearance, being in standard characters, Applicant’s mark could be presented in a format that emphasized the COMPLETEHOME portion of the mark, and which minimizes the significance of the PLUS portion. Viterra, 101 USPQ2d at 1909; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011). Similarly, COMPLETEHOME PLUS and COMPLETEHOME sound similar because, as noted above, Applicant’s mark incorporates the entirety of the cited mark, adding only PLUS at the end. See In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) (THE DELTA CAFE similar in sound to DELTA). In terms of connotation and commercial impression, both marks convey the same likely meaning as well: a home that is finished or perfect in all respects. The addition 6 The Board has long recognized the laudatory nature of the word “plus.” Plus Prods. v. Med. Modalities Assocs., Inc., 217 USPQ 464, 465 (TTAB 1983) (“[T]he word ‘PLUS’ has suggestive significance with respect to both parties’ goods, namely, something additional or extra”); Plus Prods. v. Sterling Food Co., 188 USPQ 586, 589 (TTAB 1975) (“The word “PLUS” is an ordinary dictionary word with a readily understood meaning of something better or an additional quality or quantity.”). Serial Nos. 88449446 and 88449477 - 10 - of the term PLUS does not change the connotation or commercial impression of COMPLETEHOME, rather it simply suggests a higher level of service or degree of finish. When we consider COMPLETEHOME PLUS and COMPLETEHOME in their entireties, giving greater weight in our comparison to the dominant word COMPLETEHOME, we find the marks to be similar in appearance, sound, connotation, and commercial impression. This DuPont factor favors a finding of likelihood of confusion. C. The nature and similarity or dissimilarity of the services, the established, likely-to-continue trade channels, and the classes of purchasers. We next consider the similarity of the respective services. In view of our finding that Applicant’s marks and Registrant’s mark are identical or nearly identical, a lesser degree of similarity between the Applicant’s and Registrant’s services is required to support a finding of likelihood of confusion. In re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015) (“The greater the degree of similarity between the marks, the lesser the degree of similarity between the goods [or services] necessary to support a finding of likelihood of confusion.”) (citing In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001)). See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (contemporaneous use of identical or nearly identical marks can lead to the assumption that there is a common source “even when [the] goods or services are not competitive or intrinsically related”). “[I]t is not necessary that the [services] of the parties be similar or even competitive to support a finding of likelihood of confusion” in order to find that they Serial Nos. 88449446 and 88449477 - 11 - are related for purposes of our likelihood of confusion analysis. Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (citing 7-Eleven v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). The issue is not whether consumers would confuse the services themselves, but rather whether they would be confused as to the source of the services. See In re RiseSmart Inc., 104 USPQ2d 1931, 1934 (TTAB 2012); In re Rexel, 223 USPQ 830, 831 (TTAB 1984). The Examining Attorney argues that “the services identified by Applicant and registrant are commonly provided by the same entity through the same trade channels under the same marks.”7 In support, the Examining Attorney introduced excerpts from the web pages of a number of home builders showing that they offer home building services, such as Applicant’s, as well as some of the services identified in the cited registration, particularly, real estate agency services and providing information in the field of home repair, remodeling and decorating. The following nine examples, including Applicant’s web site, are most relevant:8  The web site of M/I HOMES offering residential building construction services as well as providing information in the field of home remodeling.  The web site of LENNAR homebuilders offering residential building construction services as well as providing information in the field of home repair and renovation. 7 Examining Attorney’s Br., 9 TTABVUE 8. 8 February 19, 2020 Office Action, TSDR pp. 8-39; September 8, 2020 Office Action, TSDR pp. 2-103; March 25, 2021 Denial of Request for Reconsideration, TSDR pp. 2-23. Serial Nos. 88449446 and 88449477 - 12 -  The web site of Applicant, LGI HOMES, offering residential building construction services as well as the sale of real estate.  The web site of MAIN STREET HOMES offering residential building construction services as well as the sale of real estate and providing information in the field of home decorating.  The web site of D.R. HORTON offering residential building construction services as well as the sale of real estate.  The web site of EASTWOOD HOMES offering residential building construction services as well as providing information in the field of home decorating.  The web site of BOYD HOMES offering residential building construction services as well as real estate rental and sales.  The web site of HHHUNT HOMES offering residential building construction services as well as providing information in the field of home decorating and design trends.  The web site of PULTE HOMES offering residential building construction services as well as providing information in the field of home decorating and design trends. The Examining Attorney also made of record ten third-party registrations for marks used in connection with the same or similar services as those of both Applicant and Registrant.9 The following nine registrations are most relevant: 9 March 25, 2021 Office Action, TSDR pp. 24-55. Serial Nos. 88449446 and 88449477 - 13 -  Registration No. 5064847 for the mark REECO, used in connection with “building construction” and “real estate agency services.”  Registration No. 6019957 for the mark FORT + HOME, used in connection with “building construction, remodeling and repair services” and “real estate agency services.”  Registration No. 6030280 for the mark ORCHARD, used in connection with “development of real property, namely, repair, improvement, and new construction” and “real estate brokerage; real estate listing.”  Registration No. 6295858 for the mark NORTHLINE, used in connection with “building construction” and “real estate services, namely, listing, leasing, brokerage, . . . rental of real estate in the nature of apartments and office, commercial, entertainment, medical and retail space.”  Registration No. 6262893 for the mark BUILDBLOCK, used in connection with “construction, maintenance, and renovation of real property” and “real estate agency services.”  Registration No. 6278949 for the mark THE ART OF MODERN TOWNHOME LIVING, used in connection with “construction of residential communities, condominiums, apartments, townhomes and single family dwellings” and “leasing of real estate and real estate brokerage in residential communities, condominiums, apartments, townhomes, single family dwellings, commercial developments and retail facilities.” Serial Nos. 88449446 and 88449477 - 14 -  Registration No. 6269692 for the mark EMPIRE STATE REALTY TRUST, used in connection with “real estate development and construction of commercial, residential and hotel property” and “leasing of real estate.”  Registration No. 6251229 for a design mark, used in connection with “real estate development and construction of commercial and residential properties” and “leasing . . . and rental of apartments, condominiums, residential housing, and facilities and amenities relating thereto.”  Registration No. 6261633 for the mark GARRETT-WALKER HOMES, used in connection with “construction of residential property” and “real estate brokerage; real estate listing.” As a general proposition, although use-based third-party registrations alone are not evidence that the marks shown therein are in use or that the public is familiar with them, they nonetheless may have probative value to the extent they may serve to suggest that the services are of a kind that emanate from a single source. See In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co., Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). We find that the third-party web sites, including Applicant’s, establish that new home construction is related to real estate agency services, and this relationship is evident to the public. For example, the D.R. Horton lists move-in ready homes available for sale and tells prospective buyers that “You can now handle your closing Serial Nos. 88449446 and 88449477 - 15 - online. Finish the homebuying process by signing your documents electronically.”10 The Boyd Homes web site offers move-in ready homes and has an email contact form inviting prospective buyers to contact the builder, stating: “By submitting this form I agree to receive home buying information from a licensed Real Estate Agent for Boyd Homes through phone, text, and email.”11 The Boyd Homes website also states that “Our organization is comprised of professionals in construction, development, engineering, law, finance, sales and marketing, and mortgage lending. We are successful because of our ability to harness all of these talents to deliver better products and services to our customers.”12 Similarly, we find that the third-party web sites also show that providing information about home design, decorating, and remodeling is a common practice used by home builders to sell their homes. For example, in addition to providing information about its new homes, the M/I Homes website provides articles about home renovation such as “Getting Ready for Garage Renovation and Reorganization,” and “4 Bathroom Renovations That Add Space.”13 The Lennar web site provides articles about home design such as “5 Hot Trends in Kitchen and Bathroom Design in New Homes Across the Houston Area,” and “Prepare to be Floored with Expert Advice and Tips for Choosing the Right Rugs.”14 10 September 8, 2020 Office Action, TSDR pp. 19-22. 11 Id. at TSDR pp. 72-85. 12 March 25, 2021 Denial of Request for Reconsideration, TSDR p. 6. 13 February 19, 2020 Office Action, TSDR pp. 17-21. 14 Id. at TSDR pp. 22-23. Serial Nos. 88449446 and 88449477 - 16 - Here, the third-party web site and registration evidence demonstrates that consumers may expect to find both Applicant’s “new residential interior building construction services” and Registrant’s real estate agency services and providing information in the field of home repair, remodeling and decorating to be offered under the same mark. For instance, consumers seeking to buy or build a new home who are familiar with Registrant’s real estate and remodeling information services could think that Applicant’s building construction services were related. This is because many new home builders, such as Lennar, Main Street Homes, and Eastwood Homes, provide information about trends in remodeling and the latest home design features. Many new home builders, such as Garrett-Walker Homes, D.R. Horton, and Boyd Homes, also provide real estate brokerage, listing, and sales services to simplify the home purchasing process for prospective buyers. Indeed, Applicant’s web site suggests that Applicant itself helps prospective buyers with real estate services, stating: “In every one of our new home communities, we have assembled a team of dedicated home buying professionals who are ready to and able to walk you through the home buying process, and help you find the perfect home.”15 Collectively, the web pages and third-party registrations suggest that Applicant’s services are of the type that may emanate from the same sources as the services identified in the cited registration. Applicant argues that the differing licensing requirements for constructions firms and real estate firms make confusion unlikely: “Put plainly, consumers are not likely 15 Www.lgihomes.com, February 19, 2020 Office Action, TSDR p. 38. Serial Nos. 88449446 and 88449477 - 17 - to believe that the person performing real estate agent services or providing online remodeling or decoration information services is the person who is licensed, qualified and able to perform new building construction services.” This argument is unpersuasive. The issue is not whether the same person performs both construction and real estate services. Rather, it is sufficient that the respective services be related in some manner, or that the conditions and activities surrounding the marketing of the services are such that they would or could be encountered by the same persons under circumstances that could, because of the similarity of the marks, give rise to the mistaken belief that they originate from the same source. See In re Int’l Tel. & Tel. Corp., 197 USPQ 910, 911 (TTAB 1978). Here, the record establishes that home construction companies such as Applicant provide at least some of the same real estate and informational services provided by Registrant. Applicant argues further that the real estate services and remodeling and home design information discussed in the third-party web sites do not establish the relatedness of Applicant’s and Registrant’s services because the real estate and informational services are not the principal service of the third parties. For support, Applicant relies on TRADEMARK MANUAL OF EXAMINING PROCEDURE § 1301.01(a) Criteria for Determining What Constitutes a Service, quoting that “the activity must be sufficiently separate and qualitatively different from [the mark owner’s] principal activity, i.e., it cannot be an activity that is merely incidental or necessary to [the mark owner’s] larger business.” Applicant submitted the declaration of Rachel Eaton, Applicant’s Chief Marketing Officer, who states that new home builders “do not Serial Nos. 88449446 and 88449477 - 18 - generally engage or otherwise interact with real estate agents, provide website information about real estate, or provide information about home decorating products and services, unless they are provided in connection with efforts to market and sell new homes that they specifically develop or construct.”16 According to Applicant: Although these new home builders may refer to real estate agents on their website, may provide information about selecting interior upgrades, or may reference home decoration, all such references are merely made in the context of selling new homes that they build. These companies are not providing real estate agent services or providing information about repair, remodeling, or home decorating products and services that can be purchased separately from the construction of a new home. This argument is unpersuasive as well. As noted above, the issue is whether consumers would think that Applicant’s new home construction services and Registrant’s real estate agency services and providing information in the field of home repair, remodeling, and decorating originate from the same source. It is not necessary that the real estate agency services and the provision of information be separate from the new home construction services. In other words, the fact that the Registrant’s services, when provided by new home builders, may be secondary to the new home building process does not suggest that consumers would think that the respective services do not originate from the same source, particularly where, as here, the evidence shows that the services are commonly offered by new home builders. Moreover, whether the third-party home-builder web page excerpts would satisfy the USPTO’s criteria for determining what constitutes a service for purposes of 16 Eaton Dec., p. 2, February 28, 2021 Response to Office Action, TSDR p. 3. Serial Nos. 88449446 and 88449477 - 19 - registration is not the issue. The web sites are directed to prospective home buyers and some web sites clearly offer real estate agency services. Some of the web sites also clearly provide information about home design, decorating, and remodeling. Applicant’s argument is further rebutted by the third-party registrations reciting both construction services and real estate agency services which suggests that these combined services do meet the criteria for registration. Given the third-party web site and registration evidence showing that the respective services are offered side by side by the same companies, often on the same web sites, it is not unreasonable to conclude that prospective consumers would think that Applicant’s and Registrant’s services originate from the same source when offered under similar marks. Considering the channels of trade, because the services are related and the identifications of services in the application and registration contain no limitations, it is presumed that the services identified therein move in all channels of trade normal for those services, and that they are available to all classes of purchasers. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014). See also Coach Services, 101 USPQ2d at 1723 (absent limitation “goods [or services] are presumed to travel in all normal channels . . . for the relevant goods [or services].”). Given the foregoing evidence of third-party commercial web sites and third-party registrations for companies offering the types of services identified in the applications and registration, we find the channels of trade and classes of purchasers for new home construction services to be the same as Serial Nos. 88449446 and 88449477 - 20 - or similar to real estate agency services as well as providing information in the field of home repair, remodeling and decorating. Id. Lastly, Applicant argues that the respective services are different because “Registrant’s services offered under the COMPLETEHOME mark are really just a catalog/coupon/membership savings service.”17 The argument is unavailing. We evaluate the relatedness of the respective services based on the identifications in the subject application and cited registration. Stone Lion, 110 USPQ2d at 1162. The cited registration does not identify a “catalog/coupon/membership savings service” and we cannot and will not read the registration to include one. To the extent Applicant is arguing that Registrant does not provide the services identified in its registration, this argument is an impermissible collateral attack on the validity of the registration, which we cannot entertain in the absence of a petition to cancel. See, e.g., Fiesta Palms, 85 USPQ2d at 1363. The DuPont factors regarding the similarity of the services, channels of trade, and classes of purchasers favor a finding of a likelihood of confusion. D. Conditions of sale The fourth DuPont factor involves “[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 the likelihood of confusion is reduced 17 Applicant’s Br., p. 10, 7 TTABVUE 11. Serial Nos. 88449446 and 88449477 - 21 - because its services “tend to be expensive, and are not subject to ‘impulse’ purchases.”18 According to Applicant: Not only are building construction services relatively expensive, often representing the single largest purchase that most people will make during their lifetime, but building construction often requires long timeframes to plan and coordinate, and often face regulatory considerations such as finding a licensed contractor, as well as submitting and obtaining required permits.19 The Examining Attorney argues that the similarity of the marks outweighs the cost of Applicant’s services and the care exercised by consumers: “[e]ven if the compared services are expensive and not utilized on impulse, this does not result in immunity from source confusion, ‘especially in cases such as the present one involving identical marks and related goods [and/or services].’”20. Inasmuch as the web site excerpts show that some new home builders have move- in ready homes for sale, we find that not every new home sold “requires long timeframes to plan and coordinate,” as Applicant alleges. Nevertheless, we agree with Applicant that the construction and purchase of a new home is a significant investment, suggesting that consumers are likely to engage in a higher than ordinary degree of care in purchasing Applicant’s services. This DuPont factor weighs against likely confusion. 18 Id. at 10, 7 TTABVUE 11. 19 Id. at 11, 7 TTABVUE 12. 20 Examining Attorney’s Br., 9 TTABVUE 13 (citation omitted). Serial Nos. 88449446 and 88449477 - 22 - E. Conclusion The similarity of the marks for related services, which move in the same channels of trade to the same classes of customers, renders confusion likely. The first, second, and third DuPont factors thus support a finding of likelihood of confusion. The sixth DuPont factor regarding the strength of the cited mark is neutral. The fourth DuPont factor regarding conditions of sale counters a finding that confusion is likely because purchasers of Applicant’s services would exercise a higher degree of care in purchasing. The fact “[t]hat the relevant class of buyers may exercise care does not necessarily impose on that class the responsibility of distinguishing between similar trademarks for similar goods [or services]. ‘Human memories even of discriminating purchasers . . . are not infallible.’” In re Research and Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (quoting Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)). The “[s]ophistication of buyers and purchaser care are relevant considerations but are not controlling on this factual record.” Id. We find the record establishes that consumers familiar with the services offered under Registrant’s COMPLETEHOME mark who encounter the services under Applicant’s COMPLETEHOME and COMPLETEHOME PLUS marks are likely to believe that the services emanate from a single source. Decision: The refusals to register under Section 2(d) are affirmed.