Appointment Apps, LLC

Trademark Trial and Appeal Board

Apr 16, 2015

No. 86277695 (T.T.A.B. Apr. 16, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: April 16, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Appointment Apps, LLC
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Serial No. 86277695
_____

Gene Bolmarcich of Law Offices of Gene Bolmarcich,
for Appointment Apps, LLC.
Doritt Carroll, Trademark Examining Attorney, Law Office 116,
Michael W. Baird, Managing Attorney.
_____

Before Bergsman, Wellington and Greenbaum,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Appointment Apps, LLC (“Applicant”) seeks registration on the Principal
Register of the mark U UNWIND and design, shown below,

for the services set forth below:
Operating on-line marketplaces featuring massage
therapist profiles, their services and prices, and
functional ability for clients to book massages in the
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marketplace, then rate and tip the massage therapist, in
Class 35; and
Software as a service (SAAS) services featuring software
for internet and mobile phones that allows for a client to
identify a massage therapist, book their services, then
after the services are concluded, they can rate and tip
their massage therapist through the software, in Class
42.1
Applicant claimed the colors white and light green as a feature of the mark.
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark so resembles the registered mark THE
UNWIND.COMANY and design, shown below,

for “on-line retail store services featuring back care, relaxation, stress relief,
therapeutic, back-friendly furniture, mattress and massage goods,” in Class 35, as
to be likely to cause confusion.2

1 Application Serial No. 86277695 was filed on May 9, 2014, based upon Applicant’s claim
of first use anywhere since at least as early as March 1, 2012 for both classes and use in
commerce since at least as early as April 1, 2013 for both classes.
2 Registration No. 3954718, issued May 3, 2011. Registrant disclaimed the exclusive right
to use the word “company” and claimed the colors white, black and blue as features of its
mark.
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After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the
similarities between the services. 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 and differences in the marks.”). These factors, and any
other relevant du Pont factors in the proceeding now before us, will be considered in
this decision.
A. The similarity or dissimilarity and nature of the services, established, likely
to continue channels of trade, classes of consumers, and the degree of
purchaser care.

As noted above, Applicant is seeking to register its mark for the following
services:
Operating on-line marketplaces featuring massage
therapist profiles, their services and prices, and
functional ability for clients to book massages in the
marketplace, then rate and tip the massage therapist;
and
Software as a service (SAAS) services featuring software
for internet and mobile phones that allows for a client to
identify a massage therapist, book their services, then
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after the services are concluded, they can rate and tip
their massage therapist through the software.
The recitation of services for the mark in the cited registration is “on-line retail
store services featuring back care, relaxation, stress relief, therapeutic, back-
friendly furniture, mattress and massage goods.”
For purposes of understanding the services rendered by Applicant, we turn to
the explanation that Applicant set forth in its September 25, 2014 Response to an
Office Action.
Applicant provides a unique service, built on the cutting
edge electronic information and communications
technology in the form of an “app” that connects users
with massage therapists from various smart phones and
other devices. It allows users to find a massage
appointment that fits into their schedules, see massage
provider’s photos, and sort this information by rating,
price, distance, and types of services.
Applicant contends that the “respective services do not compete, are used for
completely different purposes (Applicant’s on the one hand, to locate and book a
massage, and Registrant’s on the other hand, to purchase goods), are provided
through completely different trade channels (an “app” on the one hand and an
online retail service on the other hand), are not complementary (a consumer would
wither looking for a massage or for products that can be used as ‘self help’ in lieu of
massage), and are simply different in kind (i.e., a location and reservation service
vs. retail services).”3

3 Applicant’s Brief, 4 TTABVUE 14.
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The Trademark Examining Attorney contends that the evidence she submitted
“demonstrates that consumers reasonably would expect that both online bookings
for massage services and online retail store services featuring massage goods would
be offered by a single source.”4 In this regard, we note that in analyzing the
similarity or dissimilarity and nature of the services, the issue is not whether
purchasers would confuse the services, but rather whether there is a likelihood of
confusion as to the source of these services. In re Rexel Inc., 223 USPQ 830 (TTAB
1984). The evidence referred to by the Trademark Examining Attorney comprises
excerpts from third-party websites attached to the October 29, 2014 Office Action
and it is listed below:
1. TouchWorks Massage (touchworks.net) advertises various massages and the
sale of essential oils, hot stones, and “Moor Mud,” “a natural mud harvested from
Austria.”
2. Planet Beach (planetbeach.com) advertises various massages and the sale of
a “natural, holistic … skincare line.”
3. Massage Heights (massageheights.com) advertises various massages and the
sale of “aromatherapy blends of body milks, body butters, body washes, bath salts,
linen sprays, sports balms, body scrub,” and essential oils.
4. Massage Envy Spa (massageenvy.com) advertises various massages and the
sale of essential oils.

4 6 TTABVUE 7.
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5. XpresSpa (xpresspa.com) advertises various massages and the sale of skin
care products, pillows, and candies.
6. Bliss (blissworld.com) advertises various massages and the sale of skin care
products, bath and body care products, hair care products, nutritional supplements,
and shoes and apparel.
Further, the websites for Bliss (blissworld.com), Massage Heights
(massageheights.com), Ma Belle Sante Massage (mabellesante.com), Macklin
Massage (macklinmassage.com), Bambu Organic Massage
(bambuorganicmassage.com), and Heart & Sole (heartandsolemassage.com) show
that these third parties allow consumers to book massages online.
Massage Envy Spa (massageenvy.com) advertises its “Massage Envy Spa app.”
See the example below:

Thus, Applicant is incorrect when it argues that “not one of the websites shows a
service at all similar to Applicant’s service.”5 Massage Envy Spa offers massage
services, sells essential oils with its massage services (“Massage Enhancements”)
and provides access to its services through an “app.”

5 Applicant’s Brief, 4 TTABVUE 15.
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In determining whether the services are related, it is not necessary that the
Applicant’s and Registrant’s services be similar or competitive in character to
support a holding of likelihood of confusion; it is sufficient for such purposes that
services are related in some manner and/or that conditions and activities
surrounding marketing of these services are such that they would or could be
encountered by same persons under circumstances that could, because of
similarities of marks used with them, give rise to the mistaken belief that they
originate from or are in some way associated with the same producer. Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir.
2012); Edwards Lifesciences Corp. v. VigiLanz Corp., 94 USPQ2d 1399. 1410 (TTAB
2010); Schering Corporation v. Alza Corporation, 207 USPQ 504, 507 (TTAB 1980);
Oxford Pendaflex Corporation v. Anixter Bros. Inc., 201 USPQ 851, 854 (TTAB
1978).
The evidence shows that companies that offer massages also advertise the online
sale of products related to massages and that massage services may be booked
online. In at least one instance, Massage Envy Spa allows consumers to book
massages through an “app” and also sells massage related products. And in two
other instances, Bliss and Massage Heights let consumers book massages on-line
and also sell massage related products. Thus, consumers are likely to believe that
the source of online sales of back care, relaxation, stress relief, therapeutic, back-
friendly furniture, mattress and massage goods is related to the source of a service
identifying massage therapists and booking massages.
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Since the Registrant’s services involve, in part, the online sale of massage goods
and Applicant’s services include providing information regarding massage
therapists and booking massages online, the relevant consumers are ordinary
consumers who shop online; specifically, in this case, for massage-related goods and
services. There is no evidence in the record, nor anything inherent about massage
related services, that would lead us to find that the ordinary purchasers of such
services exercise a level of care in their purchasing decisions that minimizes finding
a likelihood of confusion.
In view of the foregoing, we find that the services are related, they move in the
same channels of trade and they are offered to the same classes of consumers.
B. The strength of the registered mark.
Applicant argues that the word “Unwind” is conceptually weak when used in
connection with massage services because it “aptly conveys the feeling one gets from
a massage.”6 Applicant references the definition of the word “unwind” as “to become
released from tension .”7 On the other hand, as discussed
more fully below, the word “Unwind” is the dominant element of Applicant’s mark
which Applicant is using to identify and distinguish its services. Moreover, neither
Applicant, nor Registrant, nor the majority of the owners of the third-party websites
that were submitted by the Trademark Examining Attorney use the word “Unwind”

6 Applicant’s Brief, 4 TTABVUE 10.
7 Id. citing Merriam-Webster. Applicant purportedly attached a copy of the definition as
Exhibit A, but it was not included as part of its brief. Nevertheless, the Board may take
judicial notice of dictionary definitions. Univ. of Notre Dame du Lac v. J.C. Gourmet Food
Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
Serial No. 86277695
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in advertising their services.8 The third-party website owners generally use
“relaxation” and “relief” to tout the effects of their massage services.
For example, the Massage Envy Spa (massagenvy.com website) touts the
advantages of massage therapy as set forth below:
The Benefits of Massage Therapy
Massage therapy helps you relax, re-align and rejuvenate.
There are many positive aspect to receiving massage
therapy on an ongoing basis, and with the busy lives we
lead, we can all benefit from a little stress-management.
■ Relieves Stress
■ Encourages Relaxation
■ Improves Posture
■ Improves Circulation
■ Lowers Blood Pressure
■ Helps Manage Pain
■ And Much More
See also Ma Belle Sante Massage (mabellesante.com) (“Let our hands take away
your pain and stress.”).
Accordingly, we find that the word “Unwind” is suggestive, not descriptive.
Therefore, when “Unwind” is used as part of a trademark to identify services
related to massage, it is entitled to trademark protection. Maytag Co. v. Luskin’s,
Inc., 228 USPQ 747, 750 (TTAB 1986) (“there is nothing in our trademark law

8 Only Planet Beach (planetbeach.com) used the word “unwind.” (“Total Relaxation. Ever
need to just get away from it all? At Planet Beach automated spa, we have a variety of
options that will take tension away from your muscles, helping you unwind in just the
faction of the time of a traditional massage.”). October 29, 2014 Office Action.
Serial No. 86277695
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which prescribes any different protection for suggestive, nondescriptive marks than
that which is accorded arbitrary and fanciful marks.”). See also King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 USPQ 1400, 182 USPQ 108, 109 (CCPA 1974)
(“Confusion is confusion. The likelihood thereof is to be avoided, as much between
‘weak’ marks as between ‘strong’ marks, or as between a ‘weak’ mark a ‘strong’
mark.”).9
C. The similarity or dissimilarity of the marks
We now turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In a particular case, “two marks may
be found to be confusingly similar if there are sufficient similarities in terms of
sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v.
Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991, aff’d mem., 979 F.2d 216
(Fed. Cir. 1992) (emphasis in the original; citation omitted). See also Eveready

9 In her brief, the Trademark Examining Attorney improperly dismissed Applicant’s
argument regarding the inherent or “conceptual” strength of the mark in the cited
registration. Trademark Examining Attorney’s Brief, 6 TTABVUE 5. In determining the
strength of a mark, we consider both its inherent strength based on the nature of the mark
itself and its commercial strength, based on the marketplace recognition value of the mark.
See 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).”); Top Tobacco, L.P. v. North Atlantic
Operating Co., Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (same); Tea Board of India v.
Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006); MCCARTHY ON TRADEMARKS
AND UNFAIR COMPETITION § 11:83 (4th ed. 2015) (“The first enquiry focuses on the
inherent potential of the term at the time of its first use. The second evaluates the actual
customer recognition value of the mark at the time registration is sought or at the time the
mark is asserted in litigation to prevent another's use.”).

Serial No. 86277695
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Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009), citing Krim-
Ko Corp. v. The 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 comparing the marks, we are mindful that “[t]he proper test is not a side-by-
side comparison of the marks, but instead ‘whether the marks are sufficiently
similar in terms of their commercial impression’ such that persons who encounter
the marks would be likely to assume a connection between the parties.” Coach
Servs. Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721. See also San Fernando
Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1,
3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741
(TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992). The proper focus is
on the recollection of the average customer, who retains a general rather than
specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438
(TTAB 2012); Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335,
344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB
1975). As noted above, the relevant consumers are ordinary consumers who shop
online.
The marks are similar in appearance and sound because they share the word
“Unwind.” The word “Unwind” is the dominant element of Applicant’s mark which
is shown below:
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In the case of marks consisting of words and a design, the words are normally given
greater weight because they would be used by consumers to request the services.
Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB
2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)).
See also Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d
1793, 1798 (Fed. Cir. 1987); Giant Food, Inc. v. Nation’s Food Service, Inc., 710 F.2d
1565, 218 USPQ 390 (Fed. Cir. 1983). Consumers are going to refer to Applicant’s
services as “Unwind.”
Applicant argues that the letter “U” should be considered to be a literal part of
its mark such that consumers would pronounce it “U Unwind.”10 The letter “U” is
part of Applicant’s mark. However, the dominant portion of Applicant’s mark is the
word “Unwind.” As noted above, consumers will refer to Applicant’s services as
UNWIND because they will shorten U UNWIND, to UNWIND. “[U]sers of language
have a universal habit of shortening full names – from haste or laziness or just
economy of words. Examples are: automobile to auto; telephone to phone; necktie
to tie; gasoline service station to gas station.” In re Abcor Development Corp., 588
F.2d 511, 200 USPQ 215, 219 (CCPA 1978) (J. Rich, concurring).
[C]ompanies are frequently called by shortened names,
such as Penney’s for J.C. Penney’s, Sears for Sears and

10 Applicant’s Brief, 4 TTABVUE 2.
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Roebuck (even before it officially changed its name to
Sears alone), Ward’s for Montgomery Ward’s, and
Bloomies for Bloomingdales.
Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992).
See also Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ
390, 395 (Fed. Cir. 1983) (“Another factor weighing heavily in our decision is that
the dominant portion of both parties’ marks sounds the same when spoken.
Although the record does not indicate that applicant's business is commonly
referred to as ‘Giant’, it does indicate that people have called it by that name,
omitting the word ‘Hamburgers’. Thus, in a conversation between two consumers in
opposer's area about a place of business called ‘Giant’, there likely would be
confusion about which ‘Giant’ they were talking about. In this situation, any
differences in the design of the marks would not serve to avoid confusion.”).
Likewise, the word “Unwind” is the dominant element of the mark in the cited
registration THE UNWIND.COMPANY and design shown below:

The word “The” is without trademark significance. See 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.”); In re The Place Inc., 76 USPQ2d
Serial No. 86277695
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1467, 1468 (TTAB 2005) (“the definite article THE . . . add[s] no source-indicating
significance to the mark as a whole”); In re Narwood Prods. Inc., 223 USPQ 1034,
1034 (TTAB 1984) (finding THE MUSIC MAKERS and MUSIC-MAKERS “virtually
identical” marks; the inclusion of the definite article “the” is “insignificant in
determining likelihood of confusion”).
The word “company” is generic for the Registrant’s corporate form. Generic
words likewise are without trademark significance. See In re Bongrain Int’l (Am.)
Corp., 894 F.2d 1316, 1317 n.4, 13 USPQ2d 1727, 1728 n.4 (Fed. Cir. 1990). See also
In re Cell Therapeutics, Inc., 67 U.S.P.Q.2d 1795 (TTAB. 2003) ("Inc." has no
trademark significance); In re Patent & Trademark Services Inc., 49 U.S.P.Q.2d
1537 (TTAB 1998) (the designation “Inc.” has no trademark or service mark
significance because it merely “indicates the type of entity that performs the
services.”). Descriptive or generic matter, such as the word “company,” has less
significance in the likelihood of confusion analysis. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive
terms, this court has noted that the ‘descriptive component of a mark may be given
little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1983)); In re
Dixie Rests. Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997);
In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed
matter is often “less significant in creating the mark’s commercial impression”).
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Further, in Registrant’s mark, the word “Unwind” and the first syllable in the
word “Company” are written in blue creating the commercial impression of
UNWIND.COM. Because top level domain names (“TLDs” (e.g., .com, .org, or .net))
indicate the type of entity using a domain name, they serve no source-indicating
function. See In re 1800Mattress.com IP LLC, 586 F.3d 1359, 92 USPQ2d 1682 (Fed.
Cir. 2009) (MATTRESS.COM generic for “online retail store services in the field of
mattresses, beds, and bedding,” and applicant “presented no evidence that ".com"
evoked anything but a commercial internet domain”); In re Hotels.com, L.P., 573
F.3d 1300, 91 USPQ2d 1532 (Fed. Cir. 2009) (HOTELS.COM generic for “providing
information for others about temporary lodging; [and] travel agency services,
namely, making reservations and bookings for temporary lodging for others by
means of telephone and the global computer network”); In re Microsoft Corp., 68
USPQ2d 1195, 1203 (TTAB 2003) (“The combination of the specific term and TLD at
issue, i.e., OFFICE and .NET, does not create any double entendre, incongruity, or
any other basis upon which we can find the composite any more registrable than its
separate elements. The combination immediately informs prospective purchasers
that the software includes ‘office suite’ type software and is from an Internet
business, i.e., a ‘.net’ type business.”). Thus, consumers will perceive UNWIND and
UNWIND.COM to be visually and aurally similar.
Finally, the design element comprising the silhouette of a person relaxing or
“unwinding” in an office chair emphasizes or highlights the word “Unwind.”
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While we have identified the word “Unwind” as the dominant element of both
Applicant’s mark and the mark in the cited registration, we are aware that the
analysis of the similarity or dissimilarity of the marks may not be predicated on
dissecting the marks into their various components; that is, the decision must be
based on the entire marks, not just part of the marks. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985). On the other hand, 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., 224 USPQ at 751. Moreover, as indicated
above, the proper test is not a side-by-side comparison of the marks and we must
consider recollection of the average customer, who retains a general rather than
specific impression of the marks.
Applicant’s mark UNWIND and design and Registrant’s mark THE
UNWIND.COMPANY and design have the same meaning and engender the same
commercial impressions. As explained by Applicant in its argument regarding the
strength of the mark, the word “Unwind” means “to become released from tension.”
The marks also engender a release from tension as their commercial impression.
We find that the marks are similar in terms of appearance, sound, connotation
and commercial impression.
D. Balancing the factors.
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Because the marks are similar, the services are similar and move in the same
channels of trade and are sold to the same classes of consumers, we find that
Applicant’s mark for “operating on-line marketplaces featuring
massage therapist profiles, their services and prices, and functional ability for
clients to book massages in the marketplace, then rate and tip the massage
therapist” and providing “software as a service (SAAS) services featuring software
for internet and mobile phones that allows for a client to identify a massage
therapist, book their services, then after the services are concluded, they can rate
and tip their massage therapist through the software” so resembles the registered
mark for “on-line retail store services featuring back care,
relaxation, stress relief, therapeutic, back-friendly furniture, mattress and massage
goods” as to be likely to cause confusion.
Decision: The refusal to register Applicant’s mark is
affirmed.