Tower Health

Trademark Trial and Appeal Board

Feb 8, 2021

87596225 (T.T.A.B. Feb. 8, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: February 8, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Tower Health
_____

Serial No. 87596225
_____

Elliott J. Stein of Stevens & Lee P.C.
for Tower Health.
Danythe Johnson, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Taylor, Heasley, and English,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Applicant, Tower Health, seeks to register the standard character mark TOWER
HEALTH MEDICINE (with “HEALTH MEDICINE” disclaimed) on the Principal
Register for “Educational services, namely, conducting seminars, lectures, meetings,
rounds and symposia in the fields of medicine and health care and teaching-hospital
training” in International Class 41.1

1 Application Serial No. 87596225 was filed on Sept. 5, 2017, based on a declared intention to
use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).

Serial No. 87596225
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered mark TOWER SURGICAL PARTNERS (in
standard characters, with “SURGICAL PARTNERS” disclaimed) for inter alia
“education services, namely, providing course of instruction and training services in
the field of medical and surgical techniques” in International Class 41.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal proceeded. We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). We base our determination of likelihood of confusion under Section 2(d) on
an analysis of all of the probative facts of record. See In re E. I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”).
In making our determination, we have considered each DuPont factor for which
there is evidence or argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d
1160, 1161-62 (Fed. Cir. 2019). Applicant argues that “[a]ll thirteen (13) factors

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 are to the
Board’s TTABVUE docket system.
2 Registration No. 5530943 issued on the Principal Register on July 31, 2018.
Serial No. 87596225
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should be weighed.”3 But as the United States Court of Appeals for the Federal
Circuit, has made clear “[n]ot all of the DuPont factors are relevant to every case, and
only factors of significance to the particular mark need be considered.” Zheng Cai v.
Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)).
“In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods and services.”
In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004), cited
in Ricardo Media Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, *5 (TTAB
2019).
A. Comparison of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
Again, Applicant’s mark is TOWER HEALTH MEDICINE (in standard

3 Applicant’s brief, 7 TTABVUE 11.
Serial No. 87596225
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characters, with “HEALTH MEDICINE” disclaimed) and the cited registered mark
is TOWER SURGICAL PARTNERS (in standard characters, with “SURGICAL
PARTNERS” disclaimed). The Examining Attorney notes that TOWER creates the
same commercial impression in both marks: it is the first word in each mark, and it
is arbitrary for the services, making it the dominant, distinctive part of each mark.
The remaining two words in each mark are disclaimed as descriptive or generic.4
Applicant argues that the disclaimed words should not be disregarded: “Though the
Mark shares the common element ‘TOWER’, the presence of two (2) different words
in each service mark presents a different sight, sound and commercial impression [in]
each of the two (2) trademarks.”5 (Citing In re Hearst, 982 F.2d 493, 25 USPQ2d 1238
(Fed. Cir. 1992) (VARGA GIRL differs from VARGAS)).
We agree with the Examining Attorney that the marks, taken in their entireties,
are more similar than dissimilar. Even though marks are compared in their
entireties, one shared feature may be more dominant than others in creating their
commercial impression. In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047,
1050 (Fed. Cir. 2018). Here, each mark places the arbitrary word TOWER at its
forefront, where it is most likely to be noticed and remembered. Id. at 1049. And each
mark disclaims the last two words—“health medicine” in one and “surgical partners”
in the other—which, due to their descriptive or generic nature, are less likely to be
noticed and remembered. Id. at 1049-50. Although the disclaimed words are still part
of each mark, and cannot be completely discounted, Ricardo Media v. Inventive

4 Examining Attorney’s brief, 9 TTABVUE 5.
5 Applicant’s brief, 7 TTABVUE 14.
Serial No. 87596225
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Software, 2019 USPQ2d 311355, at *5-6, they are commonplace terms in the health
care field, and decidedly less distinctive than TOWER, the prominent, dominant part
of each mark. See In re Society of Health and Physical Educators, 127 USPQ2d 1584,
1587 (TTAB 2018). That distinguishes this case from Hearst, on which Applicant
relies. There, the word “GIRL” in VARGA GIRL was neither disclaimed nor
descriptive, the Court found, stating: “When GIRL is given fair weight, along with
VARGA, confusion with VARGAS becomes less likely.” In re Hearst, 25 USPQ2d at
1239.
Moreover here, unlike Hearst, the disclaimed words enhance the marks’
similarity, as they both relate to the healthcare field.6 So “[e]ven those purchasers
who are fully aware of the specific differences between the marks may well believe,
because of the similarities between them, that the two marks are simply variants of
one another, used by a single producer to identify and distinguish companion lines of
[services].” In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985).
For these reasons, we find that the marks are more similar than dissimilar, and
the first DuPont factor weighs in favor of finding a likelihood of confusion.
B. Comparison of the Services and Channels of Trade

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-

6 Examining Attorney’s brief, 9 TTABVUE 9.
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continue trade channels.” DuPont, 177 USPQ at 567; Stone Lion Capital v. Lion
Capital, 110 USPQ2d at 1161.
Applicant’s identified services, once again, are “Educational services, namely,
conducting seminars, lectures, meetings, rounds and symposia in the fields of
medicine and health care and teaching-hospital training” in Class 41. And
Registrant’s identified services are “education services, namely, providing course of
instruction and training services in the field of medical and surgical techniques” in
International Class 41.
Applicant argues that Registrant provides training to personnel in ambulatory
surgical centers, and that the educational services described in the subject
application are “unlikely to be confused with the services offered by the Registrant to
surgical specialists in the [ambulatory surgical centers].”7 Applicant continues:
The Registrant offers training services while the Applicant offers
educational services as teaching hospitals. These are completely different
services: Training refers to an act of inculcating specific skills in a person.
Education is all about gaining theoretical knowledge in the classroom or
any institution. Training is a way to develop specific practical skills,
whereas education is a typical system of learning. Training prepares a
person for the present job.8

Applicant concludes that “Where the goods bearing the senior and junior
trademarks do not compete, there can be no likelihood of confusion.”9
The issue, however, is not whether the services are likely to be confused; it is
“whether ‘the consuming public may perceive [the respective goods or services of the

7 Applicant’s brief, 7 TTABVUE 9.
8 Applicant’s brief, 7 TTABVUE 14.
9 Applicant’s brief, 7 TTABVUE 15.
Serial No. 87596225
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parties] as related enough to cause confusion about the source or origin of the goods
and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086
(emphasis added) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004 (Fed. Cir. 2002)). As the Board has repeatedly emphasized:
It is not necessary that the parties’ respective goods and services be
competitive, or even that they move in the same channels of trade to
support a holding of likelihood of confusion. It is sufficient that the
respective goods and services are related in some manner, or that the
conditions and activities surrounding the marketing of the goods and
services are such that they would or could be encountered by the same
persons under circumstances that could give rise to the mistaken belief
that they originate from the same source.

DeVivo v. Ortiz, 2020 USPQ2d 10153, *11 (TTAB 2020) (citing Coach Servs., Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir.
2012)).

Applicant’s attempt to restrict Registrant’s services to ambulatory surgical
centers is unavailing, for we look to the services identified in the application and
registration. Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1161; In re
Information Builders Inc., 2020 USPQ2d 10444, *2 (TTAB 2020). Applicant may not
restrict the scope of those services by argument or extrinsic evidence. In re I-Coat Co.,
126 USPQ2d 1730, 1739 (TTAB 2018).
Applicant’s attempt to distinguish between theoretical education and practical
training is similarly unavailing. Both identifications describe “educational services,”
and both offer “training.” Neither is more theoretical than the other, and neither is
more practical than the other. Applicant’s educational services are in the fields of
“medicine and health care,” which include Registrant’s “medical and surgical
techniques.” See Southwestern Mgmt., Inc. v. Ocinomled, Ltd, 115 USPQ2d 1007,
1025 (TTAB 2015) (With a broad identification of services, “we must presume that
Serial No. 87596225
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the services encompass all services of the type identified.”). Registrant offers a “course
of instruction and training services,” which encompass Applicant’s “seminars,
lectures, meetings, rounds and symposia.” The two identifications of services on their
face thus substantially overlap and encompass one another. See In re Detroit Athletic,
128 USPQ2d at 1051.
To corroborate the relatedness of the services, the Examining Attorney submits
printouts from various websites showing that the same entity commonly provides
services of the types identified in both the application and cited registration under
the same mark.10 For example:
 Stanford Medicine — offers clinical health care opportunities for
students to gain hands-on experience and early patient exposure;
provides courses of instruction and training in the fields of medical and
surgical techniques such as cardiac and thoracic anesthesia and adult
cardiac surgery; conducts seminars, lectures, and symposia in the fields
of medicine and health care such as the “Stanford Facial Nerve
Symposium.”11

 Emory University — School of medicine requires all third-year students
to rotate through a variety of outpatient experiences, including outpatient
pediatrics, surgical sub-specialties, and outpatient general medicine;
conducts seminars, lectures, and meetings in the fields of medicine and
health care such as geriatric medicine and acute stroke treatment.12

 Johns Hopkins Medicine — provides courses of instruction and
training in the fields of medical and surgical techniques such as
orthopedic surgery, pediatric surgery, neurological surgery, plastic
surgery-integrated and independent, and thoracic surgery and conducts

10 Aug. 22, 2018 Office Action TSDR 10-81; March 17, 2019 Office Action TSDR 8-127.
11 Med.Stanford.edu, March 17, 2019 Office Action at 77-127.
12 Medicine.Emory.edu, Aug. 22, 2018 Office Action at 10-20.
Serial No. 87596225
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seminars, lectures, and meetings in the fields of medicine and health care
and teaching-hospital training.13

 Mayo Clinic — offers a blend of clinical and didactic experiences,
providing opportunities to use clinical problems to study pathophysiology
and revisit the sciences basic to medicine; the school of continuous
professional development offers continuing medical education courses in
the form of conferences, a microvascular surgery skills training course
focused on skill development in the use of microvascular surgical
techniques, or annual selected topics in internal medicine. 14

 CAE Health Care—Offers courses, webinars, and educational content,
as well as video tutorials and hands-on simulations to help health care
providers enhance patient care and receive accreditation and
certification.15

 Philips Healthcare Education — Provides clinical education
symposiums in practice areas such as ultrasound, electrocardiogram
arrhythmia diagnosis, hematology fundamentals.16

These websites demonstrate that services of the type offered by both Applicant
and Registrant are marketed and provided under the same marks, in teaching
hospitals and in other health care settings. See Hewlett-Packard Co. v. Packard Press,
62 USPQ2d at 1004 (evidence that “a single company sells the goods and services of
both parties, if presented, is relevant to the relatedness analysis”). We find that
consumers would readily perceive these types of services as being sufficiently related
to be offered by a single business. See In re Integrated Embedded, 120 USPQ2d 1504,
1514-15 (TTAB 2016).

13 HopkinsMedicine.org, Aug. 22, 2018 Office Action at 21-58.
14 Mayo.edu, Aug. 22, 2018 Office Action at 59-81.
15 CAEHealthcare.com, March 17, 2019 Office Action at 8-31.
16 USA.Philips.com, LearningConnection.Philips.com, March 17, 2019 Office Action at 32-53.

Serial No. 87596225
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Applicant, clinging to its erstwhile distinction between the services, argues that
the respective channels of trade differ, as it does not offer its educational services to
surgical specialists in ambulatory surgical centers, and Registrant does not offer its
educational services to medical students and doctors in a teaching hospital.17
As we have observed, however, the subject Application and Registration are not
so restricted, and “[i]t is well established that the Board may not read limitations into
an unrestricted registration or application.” In re Country Oven, Inc., 2019 USPQ2d
443903, *5 (TTAB 2019) (quoting In re i.am.symbolic, LLC, 866 F.3d 1315, 123
USPQ2d 1744, 1748 (Fed. Cir. 2017). “Given the in-part identical and in-part related
nature of the parties’ [services], and the lack of any restrictions in the identifications
thereof as to trade channels and purchasers, these … [services] could be offered and
sold to the same classes of purchasers through the same channels of trade.” Genesco
Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003) quoted in In re FabFitFun, Inc.,
127 USPQ2d 1670, 1672 (TTAB 2018).
Accordingly, the second and third DuPont factors weigh in favor of a likelihood of
confusion.
C. Sophistication of Purchasers

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567.

17 Applicant’s brief, 7 TTABVUE 16-17.
Serial No. 87596225
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Applicant argues that “The very nature of those services provided ample evidence
of the sophistication of their purchasers. If the goods or services to which the
trademarks in question relate are of a sort purchased by sophisticated purchasers,
the likelihood of confusion is reduced or eliminated.”18 The Examining Attorney
counters that Applicant has offered no evidence of purchaser sophistication. She
argues, that Applicant’s and Registrant’s identified educational services “encompass
all varieties of medical techniques, medicine, and health care such as CPR and basic
first aid. Therefore, applicant’s and registrant’s consumers can include the general
public,” for whom the standard of care is the least sophisticated potential purchaser.
See In re FCA US LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (citing Stone Lion
Capital v. Lion Capital, 110 USPQ2d at 1163).
In view of the nature of the services, as well as the comparable third-party
evidence, we find that Applicant’s and Registrant’s services are directed to
professional health care providers, who would tend to be sophisticated purchasers.
See Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399, 1413 (TTAB
2010). But even sophisticated purchasers are not immune from source confusion,
especially in cases where, as here, the marks are similar and the services overlap. In
re Information Builders, 2020 USPQ2d 10444, at *4. As noted, potential purchasers
may very well view the similar marks and services as variations, their differences
denoting variant lines emanating from a single source. “[W]ith identical or similar
marks used on such [services], even a careful, sophisticated consumer of these

18 Applicant’s brief, 7 TTABVUE 17-18.
Serial No. 87596225
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[services] is likely to believe that the [services] emanate from a common source.
Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846. In other words, even careful
purchasers who do notice the difference in the marks will not ascribe it to differences
in the source of the [services], but will see the marks as variations of each other,
pointing to a single source.” In re I-Coat Co., 126 USPQ2d at 1739.
For these reasons, the fourth DuPont factor weighs slightly against likelihood of
confusion, but is outweighed by the other factors.
D. Strength of the Cited Registered Mark

Under the fifth and sixth DuPont factors, we consider the strength of the cited
registered mark, and the extent to which that strength may be attenuated by “[t]he
number and nature of similar marks in use on similar … [services].” DuPont, 177
USPQ at 567. Likelihood of confusion strength varies along a spectrum from very
strong to very weak. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857
F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017). We consider both inherent
strength, based on the nature of the mark itself, and commercial strength (also known
as “fame”). Coach/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458,
1476 (TTAB 2014); In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681,
1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).”).
Commercial strength or fame of the registered mark is not normally a factor in ex
parte proceedings, as the owner of the cited registration is not a party to the ex parte
appeal, and the Examining Attorney is under no obligation to demonstrate the fame
of the cited registered mark. In re Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006).
Serial No. 87596225
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So the “fame of the mark” factor generally is treated as neutral in an ex parte context.
See In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1086-88 (TTAB 2016). The registered
mark is treated as valid and entitled to the statutory presumptions afforded by
Section 7(b). 15 U.S.C. § 1057(b); In re Fat Boys Water Sports LLC, 118 USPQ2d 1511,
1517 (TTAB 2016).
Under the sixth DuPont factor, Applicant argues that Registrant’s cited mark “is
a weak trademark insofar as there are other Registered Trademarks that include the
word ‘TOWER’ in service marks for medically related services.”19 In support, it points
to two registered marks that the Examining Attorney initially cited—then
withdrew—as a bar to registering Applicant’s mark:
Registration
No.
Mark Pertinent Services
3079527 TOWER IMAGING Medical imaging services.
Cl. 44.
3698000

Physician services
Cl. 44
“Evidence of third-party use of similar marks on similar goods or services ‘is
relevant to show that the mark is relatively weak and entitled to only a narrow scope
of protection,’” Applicant contends (citing Palm Bay Imps., 73 USPQ2d at 1693).20
Additionally, Applicant points to its five registered marks consisting of or
containing “TOWER HEALTH”:

19 Applicant’s brief, 7 TTABVUE 19.
20 Applicant’s brief, 7 TTABVUE 19.
Serial No. 87596225
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Registration
No.
Mark Pertinent Services
5493553 TOWER HEALTH Healthcare
Cl. 44
5477075 TOWER HEALTH
PARTNERS
Healthcare services provided by a network of
providers through an integrated, coordinated
model of care delivery that is focused on
providing enhanced quality and better value
to individuals, employers and insurers, with
communication of best practices among the
network, and the sharing of quality metrics
with participants in the network. Cl. 44
5649379

Healthcare services
Cl. 44
5847010 TOWER HEALTH AT HOME Home health care and hospice services
Cl. 44
5847018 TOWER HEALTH URGENT
CARE
Health care services provided at urgent care
facilities
Cl. 44
Applicant also points to its “child application,” divided from its present
application,21 which was published, and which received a notice of allowance:
Application
No.
Mark Pertinent Services
87978797 TOWER HEALTH
MEDICINE

(“HEALTH MEDICINE”
disclaimed)

Charitable fund raising services, namely,
fund raising in the fields of medicine and
health care
Cl. 36
Medical research services
Cl. 42
Medical Services
Cl. 44
Applicant argues that its marks “constitute a family of trademarks closely
associated with the services offered by the Applicant, Tower Health.”22
Applicant’s third-party registration evidence does not prove that Registrant’s
mark is commercially weak. “[C]itation of third-party registrations as evidence of

21 Aug. 23, 2018 request to divide; Oct. 11, 2018 Office Action, notice of divisional request
completed.
22 Applicant’s brief, 7 TTABVUE 8-9.
Serial No. 87596225
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market weakness is unavailing because third-party registrations standing alone, are
not evidence that the registered marks are in use on a commercial scale, let alone
that consumers have become so accustomed to seeing them in the marketplace that
they have learned to distinguish among them by minor differences.” In re Morinaga
Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016). “We have
frequently said that little weight is to be given such [third party] registrations in
evaluating whether there is likelihood of confusion. The ‘existence of [third-party]
registrations is not evidence of what happens in the market place or that customers
are familiar with them….’” AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177
USPQ 268, 269 (CCPA 1973) quoted in part in In re Inn at St. John’s, 126 USPQ2d
at 1746, aff’d 777 Fed. Appx. 516 (Fed. Cir. 2019).
“However, third-party registrations are relevant evidence of the inherent or
conceptual strength of a mark or term because they are probative of how terms are
used in connection with the goods or services identified in the registrations.” In re
Morinaga, 120 USPQ2d at 1745-46. Even where the record lacks proof of actual third-
party use, third-party registration evidence may show that a term carries a
descriptive or highly suggestive connotation in the relevant industry and therefore
may be considered conceptually weak. Institut National Des Appellations D’Origine
v. Vintners Int’l Co., 958 F.2d 1574, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992).
In this case, as noted above, “TOWER,” the dominant part of the cited registered
mark, is arbitrary with respect to educational services in the health care field, and is
thus conceptually strong. Palm Bay Imps., 73 USPQ2d at 1692. Applicant’s third-
party registration evidence does nothing to undermine that conceptual strength. As
Serial No. 87596225
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the Examining Attorney correctly observes, none of those registrations identifies
educational services of the sort identified in Registrant’s registration and Applicant’s
application. See In re i.am.symbolic, 123 USPQ2d at 1751 (disregarding third-party
registrations for other types of goods where the proffering party had neither proven
nor explained that they were related to the goods in the cited registration); see also
Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d
1686, 1694 (Fed. Cir. 2018) (“the controlling inquiry is the extent of third-party marks
in use on ‘similar’ goods or services.”).
As for Applicant’s family-of-marks argument, “a family-of-marks argument is not
available to an applicant seeking to overcome a likelihood-of-confusion refusal.” In re
Cynosure, Inc., 90 USPQ2d 1644, 1645-46 (TTAB 2009). See In re Ald, Inc., 148 USPQ
520, 521 (TTAB 1965) (“[I]n view of the specific prohibition of Section 2(d) . . ., the
fact that applicant may possess a ‘family’ of marks … is of no particular significance
herein if the mark for which applicant now seeks registration . . . is confusingly
similar to the previously registered mark . . . .”); TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 1207.01(d)(xi) (Oct. 2018).
Moreover, even if the family-of-marks argument were available, Applicant has not
established that it owns a family. “The mere existence of similar registrations does
not establish a family, but rather there must be recognition by the public that the
shared characteristic (or ‘family surname’) is indicative of a common origin.” In re
Hitachi High-Technologies Corp., 109 USPQ2d 1769, 1772 (TTAB 2014). That
requires proof of the use and advertisement of the marks in the marketplace, and an
assessment of the contribution of the common feature to the recognition of the marks
Serial No. 87596225
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as of common origin. J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460,
18 USPQ2d 1889, 1891-92 (Fed. Cir. 1991), cited in In re LC Trademarks, Inc., 121
USPQ2d 1197, 1203 (TTAB 2016). Applicant has not proven the promotion or
recognition of TOWER HEALTH.
Thus, under the fifth and sixth DuPont factors, Registrant’s mark is entitled to
the presumption of validity accorded it by Section 7(b) of the Trademark Act, 15
U.S.C. § 1057(b), and Applicant’s third-party and “family of marks” evidence does not
diminish its conceptual or commercial strength.
II. Conclusion

When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s and the Examining Attorney’s arguments relating thereto, we
conclude that consumers familiar with Registrant’s services offered under its mark
would be likely to believe, upon encountering services offered under Applicant’s mark,
that the services originated with or are associated with or sponsored by the same
entity. There is therefore a likelihood of confusion under Section 2(d) of the Trademark
Act. 15 U.S.C. § 1052(d).
Decision: The refusal to register Applicant’s mark is affirmed.