Advocat Inc.

Trademark Trial and Appeal Board

Jan 29, 1998

No. 74515132 (T.T.A.B. Jan. 29, 1998)

Paper No. 14
ejs
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JAN 28, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Advocat Inc.
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Serial No. 74/515,132
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Lauren W. Anderson of Harwell Howard Hyne Gabbert & Manner
for Advocat Inc.
Kevin D. Else, Trademark Examining Attorney, Law Office 103
(Michael A. Szoke, Managing Attorney)
_______
Before Simms, Seeherman and Quinn, Administrative Trademark
Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Advocat, Inc. has appealed from the Trademark Examining
Attorney’s refusal to register ADVOCAT ANCILLARY SERVICES,
with the words “Ancillary Services” disclaimed, for the
following services:
health care services in support of nursing homes and
retirement center services for inpatient care,
specifically institutional pharmaceuticals services,
nutritional counseling, infusion and respiratory
therapy services, rehabilitative services, psychiatric
Ser No. 74/515,132
2
counseling, psychological counseling, medical
laboratory services.1
Registration has been refused pursuant to Section 2(d) of
the Trademark Act, 15 U.S.C. 1052(d), on the ground that
applicant’s mark so resembles the mark ADVOCATE HOME CARE,
with the words “Home Care” disclaimed, and registered for
“home and outpatient health care services”,2 that if used on
applicant’s identified services, it would be likely to cause
confusion or mistake or to deceive.
Both applicant and the Examining Attorney filed briefs
on the case; an oral hearing was not requested.
After considering all du Pont factors appropriate to
this case, see In re E. I. du Pont de Nemours & Co., 476
F.2d 1357, 177 USPQ 563 (CCPA 1973), we affirm the refusal
of registration.
We turn first to a consideration of the services.
Applicant argues that its services and those identified in
the cited registration differ because applicant’s services
“are administered only to ‘in-house patients of nursing
homes and retirement centers’” while the registrant’s mark
“is used in connection with ‘home and outpatient health care
services.’” Brief, p. 2. As a result, applicant asserts
that applicant and registrant are not head-to-head

1 Application Serial No. 74/515,132, filed April 22, 1994, based
on a bona fide intention to use the mark in commerce.
2 Registration No. 1,829,052, issued March 29, 1994.
Ser No. 74/515,132
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competitors in the health care services market, and that
their services would not normally be marketed in the same
manner.
It is well-established that the services of the parties
need not be similar or competitive, or even that they move
in the same channels of trade, in order to support a finding
of likelihood of confusion. It is sufficient that the
respective services of the parties are related in some
manner, and/or that the conditions and activities
surrounding the marketing of the goods 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 producer. See In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978).
Although applicant’s health care services are rendered
to patients within nursing homes and retirement centers, and
the registrant’s services are home and outpatient health
care services, the same consumers may be the recipients of
both parties’ services. For example, a patient may, after a
temporary stay in a nursing home, require home health care
services when he or she is released. Or a patient who is
receiving home health care services may, on occasion, need
care in a nursing home. There is no question that, apart
from the venue, the health care services rendered by the
Ser No. 74/515,132
4
parties must be deemed, at least in part, legally identical,
in that many of the health care services enumerated in
applicant’s identification could be performed as part of
home or outpatient health care.
Further, the Examining Attorney has made of record
several third-party registrations which show that a single
mark has been registered for inpatient and outpatient health
care services. We note, in particular, registrations for,
inter alia, inpatient nursing home services and providing
health care services to senior citizens in their homes;3
inpatient, outpatient and home health services;4 health care
services, namely, inpatient and outpatient hospital
services, home health care services, physical medicine,
rehabilitation and therapy services, and long and short term
nursing home services;5 and inpatient and outpatient
[hospital] services, nursing home services, convalescent
home services, retirement home services, and home health
care services.6 These registrations, while not evidence
that the marks shown therein are in commercial use, do serve
to suggest that the listed services are of a type which may
emanate from a single source. See In re Albert Trostel &
Sons Co., 29 USPQ2d 1783 (TTAB 1993).

3 Registration No. 1,950,440.
4 Registration No. 1,907,721.
5 Registration No. 1,809,509.
6 Registration No. 1,731,918.
Ser No. 74/515,132
5
We recognize that applicant’s services are identified
as health care services in support of nursing homes and
retirement center services, and that applicant describes its
services as being marketed to “nursing home and retirement
home administrators, case managers and physicians.”
Nonetheless, by the very nature of its identification,
applicant’s health care services must be deemed to be
encountered by patients. It is obvious from the
identification that applicant is not providing respiratory
therapy services, rehabilitative services, psychiatric
counseling and the like to the nursing home administrators,
case managers and physicians, but to the patients who are
staying in the nursing and retirement homes. Thus, patients
and their families who encounter applicant’s services in a
nursing home environment, and who then seek home health
care, may well believe that, in view of the similarity of
the marks, applicant’s and registrant’s health care services
emanate from a single source.
Even if we were to posit that the patients to whom
applicant’s services are ultimately rendered would not be
aware of applicant’s mark, and that the mark is solely used
in the marketing of the services to nursing home
administrators, physicians, and the like, this would not
avoid the likelihood of confusion. These same physicians
might also encounter the registrant’s in-home or outpatient
Ser No. 74/515,132
6
health care services. For example, a physician familiar
with applicant’s nursing home services, and who must
recommend in-home care to a patient, might well assume that
the services emanate from the same source. Similarly, a
physician who is familiar with registrant’s in-home or
outpatient services, and learns that applicant’s services
are offered to and by a particular nursing home, may believe
there is a source connection.
Applicant argues that such physicians are sophisticated
purchasers, and therefore would be less likely to mistake
the parties’ services.7 While sophisticated purchasers are
likely to exercise greater care, in this case we do not
think the sophistication of the medical personnel is likely
to avoid confusion. It goes without saying that even
sophisticated purchasers are not immune from trademark
confusion. Here, the third-party registrations show that a
single entity may render in-home, outpatient and nursing
home services under a single mark. Thus, physicians would
not think it odd for the health care services identified in
applicant’s application to emanate from the same source as
the health care services identified in the cited
registration.

7 Applicant also argues that “the services (long-term acute
nursing home and retirement home care) are expensive and mandate
extreme care in selection.” Brief, p. 3. This statement would
indicate that it is the patients themselves, and not merely
Ser No. 74/515,132
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Nor are the differences in the parties’ marks likely to
convey to these sophisticated purchasers that the marks
indicate different sources for the services. Although
applicant’s mark is ADVOCAT ANCILLARY SERVICES and the
registered mark is ADVOCATE HOME CARE, the last two words in
both marks are descriptive of the particular services, such
that the marks are likely to be regarded by consumers as
variants of an ADVOCATE mark in which the final words merely
reflect the differences in the services. We do recognize
that the dominant word in each mark differs by one letter,
in that a final “E” appears in ADVOCATE in registrant’s
mark, and is absent in applicant’s. However, this
difference, as well, does not distinguish the marks. Even
sophisticated purchasers are not likely to notice this
difference, which does not affect the pronunciation or
commercial impression of the marks, and creates only a
minimal difference in appearance. While we realize that
health care services are not off-the-shelf items,
sophisticated purchasers, too, are subject to the
fallibility of memory.
Finally, we note applicant’s argument that the cited
mark is weak because there are numerous third-party
registrations which use the word ADVOCATE. During the
course of prosecution, applicant submitted a private

physicians and nursing home administrators, who would come in
Ser No. 74/515,132
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company’s search report in an attempt to make these
registrations of record. The Examining Attorney advised
applicant, in the following Office action, that these
registrations were not properly of record, and cited a
number of cases and articles on this point. Applicant did
not respond to this action by making a proper submission; in
its brief it has ignored the Examining Attorney’s comments.
We agree with the Examining Attorney’s objection, which
he has reiterated in his brief, and the third-party
registrations have not been considered. We would also point
out, though, that these registrations do not support
applicant’s position that ADVOCATE is a weak mark for health
care services; in fact, according to the search report, the
cited mark is the only ADVOCATE mark in this field.
Decision: The refusal of registration is affirmed.
R. L. Simms
E. J. Seeherman
T. J. Quinn
Administrative Trademark Judges
Trademark Trial and Appeal Board

contact with applicant’s mark.