88605198 (T.T.A.B. Aug. 20, 2021)

Sheffield Pharmaceuticals, LLC

Trademark Trial and Appeal BoardAug 20, 2021

88605198 (T.T.A.B. Aug. 20, 2021)

Mailed: August 20, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ——— In re Sheffield Pharmaceuticals, LLC. ——— Serial Nos. 88605180; 88605198; and 886055631 ——— Peter J. Davis of Whiteford Taylor & Preston for Sheffield Pharmaceuticals, LLC. Sharon A. Meier, Trademark Examining Attorney, Law Office 112, Renee Servance, Managing Attorney. ——— Before Kuhlke, Cataldo and Greenbaum, Administrative Trademark Judges. Opinion by Cataldo, Administrative Trademark Judge: On September 5, 2019, Applicant, Sheffield Pharmaceuticals, LLC, applied to reg- ister on the Principal Register the following three marks under Section 1(b) of the Trademark Act, based upon its allegation of a bona fide intent to use the marks in 1 In a paralegal order issued on May 11, 2021, (7 TTABVUE) the Board granted the Examin- ing Attorney’s May 10, 2021 motion to consolidate these appeals. (6 TTABVUE) In this deci- sion, we will refer to the briefs and evidentiary record in application Serial No. 88605180 unless otherwise noted. Page references to the application record are to the downloadable .pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket system. This Opinion is not a Precedent of the TTAB Serial Nos. 88605180; 88605198; and 88605563 - 2 - commerce in connection with both classes of goods: ;2 CAREGIVER (in standard characters);3 and 4 all identifying the following goods: Shampoo; body wash for humans; body lotion; face lotion; body cream; facial cream; skin care products, namely, cosmetic creams for skin care, body creams for skin care in International Class 3; and Antifungal creams for medical use; mouth sprays, namely, medicinal preparations for the mouth and as sprays; pain relief medication in the form of sprays; pain relief medication in the form of creams; itch relief creams, namely, anti-itch creams; therapeutic skin care products, namely, medicinal creams for skin care in International Class 5. Applicant appeals from the Examining Attorney’s final refusal to register under 2 Application Serial No. 88605180 includes the following description and color statements: “The mark consists of a graphic of a person over the c in the word care, over the word giver.” “Color is not claimed as a feature of the mark.” 3 Application Serial No. 88605198. 4 Application Serial No. 88605563 includes the following description and color statements: “The mark consists of a graphic of a person over the c in the word caregiver.” “Color is not claimed as a feature of the mark.” Serial Nos. 88605180; 88605198; and 88605563 - 3 - Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s marks are likely to cause confusion in view of the registered mark displayed below: (“THE CAREGIVER PARTNERSHIP” disclaimed), identifying the following services: On-line retail store services and mail-order catalog services, both fea- turing home health-care products for caregivers, including incontinence products such as diapers, pads, sheets and garments; skin-care products such as creams and lotions; skin masks; disposable wipes; walkers, canes and chair raisers; nutritional supplements; and home diagnostic products such as diabetic monitors and blood-pressure cuffs in Interna- tional Class 35.5 Likelihood of Confusion Our determination under Trademark Act Section 2(d) is based on an analysis of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. See In re E.I. du Pont de Nemours & Co. (“DuPont”), 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). We consider the DuPont factors for which there are arguments and evidence. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1164 (Fed. Cir. 2019). In considering the evidence, we keep in mind that “[t]he 5 Registration No. 3136345 issued on August 29, 2006 on the Principal Register with the following color claim and color location statement: “The colors black, white and gray are claimed as features of the mark.” “The wording ‘The CareGiver’ is white on a black back- ground, the word ‘Partnership’ and the line underneath it are black, the figure in back is black, and the figure in front is gray.” This statement also suffices to describe the mark. First Renewal. Serial Nos. 88605180; 88605198; and 88605563 - 4 - fundamental inquiry mandated by Section 2(d) goes to the cumulative effect of differ- ences in the essential characteristics of the goods and differences in the marks.” Fed- erated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999). Evidence In support of the refusal to register, the Examining Attorney introduced into the record the results of searches of YourDictionary.com (July 21, 2020 final Office Action at 41-44) defining “PARTNERSHIP” as “a relationship between two or more individ- uals” and AHDictionary.com (Id. at 45-46) defining “PARTNERSHIP” as “a business entity in which two or more co-owners contribute resources, share in profits and losses, and are individually liable for the entity’s action.” The Examining Attorney further introduced into the record pages downloaded from the following third-party Internet websites, (December 21, 2019 first Office Ac- tion at 34-58; July 21, 2020 final Office Action at 47-91) showing Applicant’s goods and the services identified in the cited registration, offered under the same marks: CVS (CVS.com) features online retail store services for beauty, health, medi- cine and personal care products including creams, lotions, antifungal creams, pain relievers, medicated creams, shampoo, under the brand name CVS; Walgreens (Walgreens.com) features online retail store services with Walgreens brand shampoos, lotions, itch relief creams, and related products; Willing Beauty (WillingBeauty.com) features a variety of skin care products, including anti-acne and therapeutic moisturizing creams, offered under the same mark as its online retail store services; Serial Nos. 88605180; 88605198; and 88605563 - 5 - Glo Skin Beauty (GloSkinBeauty.com) features online retail store services for Glo Skin Beauty brand makeup and skincare products including skin creams and lotions; Keihl’s (Kiehls.com) features online retail store featuring creams and moistur- izers, including therapeutic moisturizing creams for skin, under the same mark as its retail store services; Clinique (Clinique.com) features an online retail store offering its own brand of cosmetics and personal care products including lotions, creams, and related products; Dermalogica (Dermalogica.com) featuring online retail store services under the same brand as the medicated and non-medicated skin care products offered on the site; and Obagi website (Obagi.com) featuring online retail store services for skin care products under the brand name Obagi.  The Examining Attorney also submitted approximately fifteen use-based, third- party registrations for marks identifying the goods identified in the involved applica- tions and the services identified in the cited registration. (December 21, 2019 first Office Action at 10-33; July 21, 2020 final Office Action at 7-46). The following exam- ples are illustrative. All marks are in standard characters unless otherwise noted: Reg. No. 3636961 for the mark C.O. BIGELOW identifying, inter alia, body creams, body lotions, shampoo, anti-itch cream, online retail store services fea- turing medicated personal care products, personal care products, cosmetics; Reg. No. 5447680 for the mark SOBOTANICAL identifying, inter alia, body lotion, body wash, medicated first aid and pain ointment, online retail store services featuring natural cosmetics, fragrances, essential oils for personal use and personal care products; and Reg. No. 4918787 for the mark ETIOLOGY identifying, inter alia, non-medi- cated skin creams, lotions, shampoos, medicated skin creams, lotions, and re- tail store services featuring medicated and non-medicated skin care prepara- tions. Serial Nos. 88605180; 88605198; and 88605563 - 6 - Analysis A. Similarity or dissimilarity and nature of the goods and services The second DuPont factor concerns the “similarity or dissimilarity and nature of the goods or services as described in an application or registration.” Stone Lion Cap- ital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159 (Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). A proper comparison of the goods and services considers whether “the consuming public may perceive [the respective goods and services of the parties] as related enough to cause confusion about the source or origin of the goods or services.” Hewlett Packard, 62 USPQ2d at 1004. Therefore, to support a finding of likelihood of confu- sion, it is not necessary that the goods and services be identical or even competitive. It is sufficient that the goods and services are related in some manner, or that the circumstances surrounding their marketing are such that they would be encountered by the same persons in situations that would give rise, because of the similarity of the marks, to a mistaken belief that they originate from the same source or that there is an association or connection between the sources of the goods and services. In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009). Finally, it is well recognized that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 1307 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (“[W]e have held that confusion is likely where Serial Nos. 88605180; 88605198; and 88605563 - 7 - one party engages in retail services that sell goods of the type produced by the other party . . . .”); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (holding BIGG’S (stylized) for retail grocery and general merchandise store services and BIGGS and design for furniture likely to cause confusion). When the goods and services in question are well known or otherwise generally recognized as having a common source of origin, the burden of establishing relatedness is easier to satisfy. In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082 (Fed. Cir. 2014). The Examining Attorney’s website evidence demonstrates that the above-listed third parties offer medicated and non-medicated skin care products identified in the applications and on-line retail store services featuring medicated and non-medicated skin care products identified in the cited registration, under the same mark. We thus find that consumers would readily expect these goods and services could emanate from the same sources. Internet material is competent evidence of trademark regis- trability in ex parte appeals. See In re Bayer AG, 488 F.3d 960, 966, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007); In re Reed Elsevier Props., Inc., 482 F.3d 1376, 1380, 82 USPQ2d 1378, 1381 (Fed. Cir. 2007). In this case, the website evidence introduced by the Examining Attorney shows on its face that third parties offer on their websites certain of Applicant’s products under the same mark as their retail brand names. See, e.g., Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1427-28 (TTAB 2014). With regard to the Examining Attorney’s third-party registration evidence, as a Serial Nos. 88605180; 88605198; and 88605563 - 8 - general proposition, although use-based, third-party registrations alone are not evi- dence that the marks shown therein are in use or that the public is familiar with them, they nonetheless may have some probative value to the extent they may serve to suggest that the goods and services at issue are of a kind that emanate from a single source. See In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018); In re Infin- ity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). In this case, the Examining Attorney’s registration evidence serves to buttress the website evidence showing use of a com- mon mark by third parties to identify the goods and services at issue herein. Applicant argues: the Examining attorney has made a crucial assumption without a basis in Appellant’s application, the cited registration or the extrinsic evi- dence of record, that goods sold through the online services of the cited registration are their own branded goods. That is, the customers of THE CAREGIVER PARTNERSHIP are not consumers but companies that use the services recited in the cited registration to sell their own branded home healthcare products for caregivers. Accordingly, there is no reason supported by evidence to believe that the owner of THE CAREGIVER PARTNERSHIP will expand from the recited use of its mark into the branding of goods. Moreover, there is no evidence that persons looking to purchase online retail store services from THE CAREGIVER PART- NERSHIP are likely to buy Appellant’s goods labeled with CAREGIVER and Appellant’s design thinking that they are associated with THE CAREGIVER PARTNERSHIP.6 Applicant’s argument, unsupported by evidence, is based upon an assumption that the customers of the services identified in the cited registration are “companies” who will sell products to care givers and not individual care givers themselves. Applicant’s 6 Applicant’s brief; 4 TTABVUE 7-8. Serial Nos. 88605180; 88605198; and 88605563 - 9 - “assertions are unsupported by sworn statements or other evidence, and ‘attorney argument is no substitute for evidence.’” In re OEP Enters., Inc., 2019 USPQ2d 309323, *14 (TTAB 2019) (quoting Cai v. Diamond Hong, Inc., 901 F.3d 1367 , 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (internal quotation omitted)). Nothing in the recitation of services limits the cited registrant’s services to corporate or institutional clients. More importantly, the Examining Attorney’s website evidence establishes that eight third parties offer some of the products identified in both classes of the involved applications under the same trademark, trade name or brand name as their online retail store services. The products offered on these websites are available to anyone, including private individuals and institutions. Second, there is no need for the Examining Attorney to establish that the owner of the cited registration will “expand” into branding of goods because that is not the relevant inquiry. See, e.g., Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 184 USPQ 351 (CCPA 1975) (“the confusion found to be likely is not as to the products but as to their source”); In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012). The respective goods and services need only be “related in some manner and/or if the cir- cumstances surrounding their marketing [be] such that they could give rise to the mistaken belief that [the goods and/or services] emanate from the same source.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 Serial Nos. 88605180; 88605198; and 88605563 - 10 - USPQ 1289 (Fed. Cir. 1984). The Examining Attorney’s evidence supports a finding that consumers who encounter Applicant’s goods may believe they emanate from the same source as the services in the cited registration. We further reject Applicant’s argument in its reply brief (9 TTABVUE 3) that the Examining Attorney’s website evidence constitutes prohibited “extrinsic evidence of actual use.” Likelihood of confusion is determined on the basis of the goods or services as they are identified in the applications and registration at issue. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); In re William Hodges & Co., Inc., 190 USPQ 47, 48 (TTAB 1976). See also Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“The authority is legion that the ques- tion of registrability of an applicant’s mark must be decided on the basis of the iden- tification of goods set forth in the application regardless of what the record may reveal as to the particular nature of an applicant’s goods, the particular channels of trade or the class of purchasers to which the sales of goods are directed”). Applicant points to no authority for its apparent contention that the Examining Attorney is precluded from introducing evidence of third-party use and registration of marks for the goods and services identified in the involved applications and registration to support the refusal of registration, and we find none. Contrary to Applicant’s arguments, the Examining Attorney’s evidence estab- lishes that consumers may encounter Applicant’s goods and the services in the cited registration offered by the same third parties and subject to registration by third par- ties. This evidence establishes the relatedness of the goods and services. Further, it Serial Nos. 88605180; 88605198; and 88605563 - 11 - is not necessary for the Examining Attorney to prove likelihood of confusion with respect to each of the goods identified in applicant’s dual-class application; if there is likelihood of confusion with respect to any of Applicant’s identified goods in each class, the refusal of registration must be affirmed. “Likelihood of confusion must be found as to the entire class [of goods or services identified] … if there is likely to be confusion with respect to any [good or] service that comes within the recitation of [goods or] services in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)). We find that the second DuPont factor weighs in favor of likelihood of confusion. B. The similarity or dissimilarity of established, likely-to-continue trade channels The third DuPont factor concerns “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161 (quoting DuPont, 177 USPQ at 567). Because there are no limitations as to channels of trade or classes of purchasers in the recitation of goods in the involved applications, we must presume that both classes of goods move in all channels of trade normal for such goods and are available to all potential classes of ordinary consumers thereof. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). As noted above, the Examining Attorney has introduced evidence that both classes Serial Nos. 88605180; 88605198; and 88605563 - 12 - of goods are offered for sale on websites that offer home healthcare products. Because these websites are accessible by anyone, including the general public, professionals and institutions, they must be presumed to offer home healthcare products, including those offered by Applicant, to the care givers who are consumers of the services iden- tified in the cited registration. This evidence supports a finding that Applicant’s goods and the services recited in the cited registration are offered in at least one common channel of trade, i.e., third-party websites, to overlapping purchasers. We recognize that the cited registration is limited to the extent it is designed for and targets a particular consumer group, i.e., caregivers. However, this limited class of purchaser includes professionals and members of the general public providing home care. Even with this limitation the trade channels and classes of consumers overlap. We find that the third DuPont weighs in favor of likelihood of confusion. C. Similarity or dissimilarity of the marks and strength of the cited mark In a likelihood of confusion analysis, we compare the marks in their entireties for similarities and dissimilarities in appearance, sound, connotation, and commercial impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). The mark in the cited registration is with “THE CARE- GIVER PARTNERSHIP” disclaimed. Serial Nos. 88605180; 88605198; and 88605563 - 13 - 1. Comparison of the marks The mark in the cited registration is . Although a dis- claimer may serve to show a term is weak and may not be the dominant element in a mark relative to other terms, the disclaimer of THE CAREGIVER PARTNERSHIP does not serve to avoid confusion here. As the wording of the disclaimer indicates (i.e., “no claim is made to the exclusive use of … apart from the mark as shown” – emphasis added), the disclaimed matter is accorded significance as an integral part of the com- posite mark. See American Dietaids Company, Inc. et. al. v. Plus Products, 191 USPQ 146 (DCNY 1976). The disclaimer of matter in a mark does not have the effect of removing the matter from the mark. Bordon, Inc. v. W.R. Grace & Co., 180 USPQ 157 (TTAB 1973). It is well established that a disclaimer is of no legal significance in determining likelihood of confusion; rather, the disclaimed matter must be considered. See Kellogg Co. v. Pack “Em Enterprises Inc., 14 USPQ 2d 1545 (TTAB 1990); Glamorene Products Corporation v. Boyle-Midway, Inc., et. al., 188 USPQ 145 (SDNY 1975). Moreover, the public viewing the mark is unaware of what, if any, portions of a mark may be dis- claimed in a federal registration. See In re National Data Corp., 224 USPQ 749 (Fed. Cir. 1985). All of the wording in the Registrant’s mark is conceptually weak, including Serial Nos. 88605180; 88605198; and 88605563 - 14 - the term CAREGIVER which describes the consumer of the services.7 However, as discussed below, we find the word CAREGIVER to carry the most significant source- identifying significance in Registrant’s mark. Thus, although disclaimed, the com- mercial impression it imbues in the mark as a whole is significant. a) Applicant’s CAREGIVER mark Applicant’s CAREGIVER mark in standard characters consists in its entirety of the most significant wording in the registered mark. The registered mark also includes the leading term “THE” which is devoid of source-iden- tifying significance. See, e.g., In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009) (finding WAVE and THE WAVE “virtually identical” marks; “[t]he addition of the word ‘The’ at the beginning of the registered mark does not have any trademark significance.”). The registered mark further includes the term “PARTNERSHIP” sug- gesting a relationship between caregivers or a business entity for or involving care- givers. The term “PARTNERSHIP” therefore reinforces and draws attention to the term “CAREGIVER” in the registered mark. Applicant’s CAREGIVER mark is wholly subsumed by the registered mark. The former connotes products for caregivers and the latter connotes a partnership for purposes of supplying products for or with care- givers. 7 There is no evidence in the record regarding the number and nature of similar marks in use for similar goods or services by which we may further assess the strength or weakness of the wording in the cited mark, aside from the above-noted dictionary definitions of the term “PARTNERSHIP.” As is typical in an ex parte appeal, there is no evidence regarding the cited mark’s commercial strength. Serial Nos. 88605180; 88605198; and 88605563 - 15 - The registered mark also includes the design of an out- line of two stylized human figures and a geometric carrier in the shape of an incom- plete oval. The two figures, in silhouette with no human features, appear to point to the wording in the mark, drawing additional attention thereto. We thus find that the word portion of the mark is the most significant for purposes of our determination. In fact, it is settled that where, as here, marks are comprised of both words and a design, the words are normally accorded greater weight, in part because consumers are likely to remember and use the words to request the goods. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012) (“the verbal portion of a word and design mark likely will be the dominant portion”); In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554 (TTAB 1987) (holding that “if one of the marks comprises both a word and a design, then the word is normally accorded greater weight because it would be used by purchasers to request the goods or services” and “because appli- cant’s mark shares with registrant’s mark that element responsible for creating its overall commercial impression, the marks are confusingly similar”). We acknowledge that the presence of “THE” and “PARTNERSHIP” and the styl- ized design in the registered mark differentiates it visually and aurally from Appli- cant’s mark. This point of distinction, however, does not significantly diminish the strong similarities in connotation and overall commercial impression engendered by these two marks. Based upon the above analysis, we find that CAREGIVER is more Serial Nos. 88605180; 88605198; and 88605563 - 16 - similar to the mark than dissimilar in terms of appear- ance, sound, connotation, and commercial impression. b) Applicant’s mark We incorporate by reference the above discussion of Applicant’s CAREGIVER mark. As discussed above, the wording CARE GIVER in Applicant’s mark is wholly subsumed by the most significant wording in the registered mark. The presence or absence of a space between the two words “CARE” and “GIVER” is an inconsequential difference that even if consumers noticed or remembered would not serve to distin- guish these marks. In re Iolo Technologies, LLC, 95 USPQ2d 1498, 1499 (TTAB 2010) (finding ACTIVECARE and ACTIVE CARE are similar); Giersch v. Scripps Networks Inc., 90 USPQ2d 1020, 1025 (TTAB 2009) (“the spaces that respondent places be- tween the words do not create a distinct commercial impression from petitioner's presentation of his mark as one word.”). The design of a highly stylized “person” in the top left of Applicant’s mark, while shaped somewhat differently from the stylized figures in the registered mark, none- theless is evocative thereof. Applicant’s mark thus consists of the wording CARE GIVER and a stylized person and the registered mark consists of the wording THE CAREGIVER PARTNERSHIP and the design of two stylized persons. For the reasons Serial Nos. 88605180; 88605198; and 88605563 - 17 - discussed above, the wording in the mark is more significant than the design in cre- ating the overall commercial impression of the marks. Applicant’s mark is more similar to the registered mark than dissim- ilar in appearance, sound, connotation and commercial impression. c) Applicant’s mark We incorporate by reference the above discussion of Applicant’s CAREGIVER and marks. The wording CAREGIVER in Applicant’s mark is wholly subsumed by the most significant wording in the registered mark. The design of a highly stylized “person” in the top left of Applicant’s mark, while shaped somewhat differently from the stylized figures in the registered mark, none- theless is evocative of the figures on the left side thereof. Applicant’s mark thus con- sists of the wording CAREGIVER and a stylized person and the registered mark con- sists of the wording THE CAREGIVER PARTNERSHIP and the design of two styl- ized persons. For the reasons discussed above, the wording in the mark is more sig- nificant than the design in creating the overall commercial impression of the marks. Serial Nos. 88605180; 88605198; and 88605563 - 18 - Applicant’s mark is more similar to the registered mark than dissimilar in appearance, sound, connotation and commercial impression. Applicant argues “its mark[s] and the cited mark are not the same and are imme- diately distinguishable.” (4 TTABVUE 3.) Even if true, Applicant’s argument misap- prehends the test for determining the similarity of the marks. “The proper test is not a side-by-side comparison of the marks, but instead whether the marks are suffi- ciently similar in terms of their commercial impression such that persons who en- counter the marks would be likely to assume a connection between the parties.” Coach Servs., 101 USPQ2d at 1721 (citation and internal quotation marks omitted). Consumers may not necessarily encounter the marks in close proximity and must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6 USPQ2d 1467, 1468 (TTAB 1988). Applicant further argues that The immediate and undeniable connotation to consumers of Appellant’s mark is that of a person who provides care in a caregiver relationship. The immediate connotation of the cited mark, as to the services it re- cites, is that the proprietor of the cited mark desires to create a “part- nership” with the person or company desirous of using its services, which are not “caregiving” as with Appellant’s goods, but are what the cited registrations states, on-line services. (4 TTABVUE 4; emphasis supplied by Applicant.) However, even if Applicant is correct, the connotations of a person who provides care Serial Nos. 88605180; 88605198; and 88605563 - 19 - in a caregiver relationship and a partnership with a caregiver or caregivers are closely related, and do not stand “[i]n sharp contrast” as Applicant claims.8 (4 TTABVUE 4.) d) Comparison of the marks – summary We recognize the points of distinction between the registered mark and Appli- cant’s marks. Nonetheless, we find that, when viewed as a whole, Applicant’s marks are more similar to the registered mark than dissimilar in appearance, sound, and particularly in connotation and overall commercial impression. As a result, consum- ers encountering Applicant’s marks could mistakenly believe they present a variation on the registered mark used to identify goods as a subset of Registrant’s services, but nonetheless emanating from a common source. See In re Bay State Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (citing In re Abcor Dev. 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 names—from haste or laziness or just economy of words”)). Similarity in any one of the elements of sound, appearance, meaning, or commer- cial impression is sufficient to support a determination of likelihood of confusion. See 8 Applicant also relies upon a non-precedential decision by the Federal Circuit, arguing that its facts are analogous to the facts in these appeals. Although parties may cite to non-prece- dential decisions, the Board does not encourage the practice. Corporacion Habanos SA v. Rodriguez, 99 USPQ2d 1873, 1875 n.5 (TTAB 2011); see also In re Luxuria s.r.o., 100 USPQ2d 1146, 1151 n.7 (TTAB 2011) (parties may cite to non-precedential decisions, but they are not binding on the Board and because they have no precedential effect, the Board generally will not discuss them in other decisions). For this reason, and further because the marks at issue therein wholly differ from the marks under consideration in these appeals, we give this non- precedential decision no further consideration. Serial Nos. 88605180; 88605198; and 88605563 - 20 - 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) (“In appropri- ate cases, a finding of similarity as to any one factor (sight, sound or meaning) alone ‘may be sufficient to support a holding that the marks are confusingly similar’”) (ci- tations omitted)). Therefore, even if the marks are somewhat different in appearance and sound, it would not necessarily mean there was no likelihood of confusion given the similarities in connotation and commercial impression. We find that the similar- ities in connotation and commercial impression outweigh the dissimilarities in ap- pearance and sound. This DuPont factor supports a finding that confusion is likely. Conclusion Having considered all of the evidence and argument of record, we conclude on this record that Applicant’s goods are related to the services in the cited registration, and that there is sufficient evidence that the goods and services travel in a common chan- nel of trade to overlapping purchasers. The registered mark and Applicant’s marks are more similar than dissimilar, particularly in connotation and overall commercial impression, and as result, despite the somewhat conceptually weak nature of the com- mon term, confusion is likely. Decision: The refusal to register under Trademark Act § 2(d) is affirmed as to both classes in all three applications.