Pride Health Care, Inc.

Trademark Trial and Appeal Board

Jun 13, 2001

No. 75377494 (T.T.A.B. Jun. 13, 2001)

06/13/01 Paper No. 12
EJS
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Pride Health Care, Inc.
________
Serial No. 75/377,494
_______
Charles N. Quinn of Saul Ewing, LLP for Pride Health Care,
Inc.
Barney L. Charlon, Trademark Examining Attorney, Law Office
105 (Thomas G. Howell, Managing Attorney).
_______
Before Cissel, Seeherman and Hohein, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Pride Health Care, Inc. has appealed from the final
refusal of registration of the mark HOW A POWER CHAIR
SHOULD FEEL for “powered wheelchairs and powered wheelchair
bases for use principally by elderly, infirm or disabled
persons.”1 Registration has been refused pursuant to
1 Application Serial No. 75/377,494, filed October 22, 1997,
based on an asserted bona fide intention to use the mark in
commerce. Applicant amended its identification of goods to that
stated above in its response filed October 12, 1999. That
amendment contains a typographical error, in which “bases” was
incorrectly written as “basis.” The identification, however, has
been corrected in the Office records.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/377,494
2
Section 2(d) of the Trademark Act, 15 U.S.C. 1052(d), on
the ground that applicant’s mark so resembles the mark
POWERCHAIR, previously registered for “collapsible
electrically operated wheelchair,”2 that, if used on
applicant’s identified goods, it would be likely to cause
confusion or mistake or to deceive.
Applicant and the Examining Attorney have filed
briefs. An oral hearing was not requested.
Our determination is based on an analysis of all of
the probative facts in evidence that are 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). In any likelihood
of confusion analysis, two key considerations are the
similarities between the marks and the similarities between
the goods. Federated Foods, Inc. v. Fort Howard Paper Co.,
544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
In this case, the goods are, in part, legally
identical, and otherwise closely related. As identified,
applicant’s powered wheelchairs for use principally by
elderly, infirm or disabled persons are encompassed within
the collapsible electrically operated wheelchairs
identified in the cited registration. The respective
2 Registration No. 2,084,661, issued July 29, 1997.
Ser. No. 75/377,494
3
goods, being identical, would be sold within the same
channels of trade to the same classes of customers, which
would include those members of the general public who would
purchase a wheelchair for their own use or that of a family
member.
This brings us to a consideration of the marks,
including the gneral principle that, “when marks would
appear on virtually identical goods or services, the degree
of similarity necessary to support a conclusion of likely
confusion declines.” Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992).
Applicant contends that its mark is sufficiently
different in sound, appearance and commercial connotation
so as to distinguish it from POWERCHAIR. Applicant points
particularly to the fact that its mark consists of six
words, while the cited mark is one word. Applicant also
asserts that its mark “provides a distinctive impression
regarding both the high quality of goods provided by
Applicant and the effect of use of those goods on
consumers.”
Obviously, there are differences between the marks, in
that applicant’s mark begins with the words HOW A and ends
Ser. No. 75/377,494
4
with SHOULD FEEL, which are words not present in the cited
mark. However, a determination of likelihood of confusion
is not made on a purely mechanical basis, counting the
number of words, or even letters, that are similar or
different. It is well established that 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 a consideration of the marks
in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749 (Fed. Cir. 1985).
We agree with the Examining Attorney that POWER CHAIR
is the dominant portion of applicant’s mark, and that the
other words relate to this central portion, which is the
focus of the phrase. Moreover, we find that consumers
familiar with the registrant’s mark POWERCHAIR for
electrical wheelchairs are likely to assume, upon seeing
the phrase HOW A POWER CHAIR SHOULD FEEL for the same
goods, that the wheelchairs emanate from the same source,
and that HOW A POWER CHAIR SHOULD FEEL is a slogan mark
adopted and used by the entity which sells the POWERCHAIR
wheelchairs.
Ser. No. 75/377,494
5
In reaching this conclusion, we have considered
applicant’s argument that the cited mark POWERCHAIR is
descriptive, and is entitled to less protection than an
arbitrary or fanciful mark. To the extent that applicant
seeks to collaterally attack the cited registration, that
is clearly not permissible.3 However, even if we treat
applicant’s argument as asserting that POWERCHAIR is highly
suggestive of, rather than descriptive for, electrically
operated wheelchairs, the additional words in applicant’s
mark are not sufficient to distinguish it from the
registrant’s. The differences in applicant’s mark do not
change the impact of the word POWER CHAIR; rather, as
stated above, consumers would regard applicant’s mark as a
variant of the registrant’s mark, a slogan mark used by the
same entity which provides POWERCHAIR wheelchairs.
Decision: The refusal of registration is affirmed.
3 We would also point out that the cited mark is registered on
the Principal Register, without resort to Section 2(f).