91222695 (T.T.A.B. Sep. 16, 2019)

Azalea Health Innovations, Inc.v.Rural Health Care, Inc.

Trademark Trial and Appeal BoardSep 16, 2019

91222695 (T.T.A.B. Sep. 16, 2019)

This Opinion is Not a Precedent of the TTAB Mailed: September 16, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Azalea Health Innovations, Inc. v. Rural Health Care, Inc. _____ Opposition No. 91222695 _____ Daniel E. Sineway, Benjamin J. Warlick, and R. Lee Strasburger, Jr. of Morris, Manning & Martin, LLP for Azalea Health Innovations, Inc. Robert A. McNeely of Messer Caparello, P.A. for Rural Health Care, Inc. _____ Before Zervas, Kuczma and Lynch, Administrative Trademark Judges. Opinion by Lynch, Administrative Trademark Judge: Rural Health Care, Inc. (“Applicant”) seeks registration on the Principal Register of the mark AZALEA HEALTH in standard characters, with a disclaimer of HEALTH,1 and of the mark AZALEA HEALTHCARE in standard characters, with a 1 Application Serial No. 86180627 was filed on January 31, 2014 based on alleged use of the mark in commerce as of October 1, 2011 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). Opposition No. 91222695 - 2 - disclaimer of HEALTHCARE,2 both for “Retail pharmacy services” in International Class 35 and “Dental services, namely, performing restorative and cosmetic procedures; Medical services in the field of primary care; Mental health services” in International Class 44. Azalea Health Innovations, Inc. (“Opposer”) opposes registration of Applicant’s marks based on alleged likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with the following registered marks: AZALEA in standard characters for “consulting services in the fields of medical billing services and management of medical practices and medical laboratories” in Int. Class 35 and “providing a website featuring non-downloadable software for medical practice management, for management of medical laboratories, for management of data related to drug and alcohol testing, and for management of electronic healthcare records; computer hardware and software consulting services in the fields of medical billing, medical management, medical laboratories, drug and alcohol testing, and electronic healthcare records” in Int. Class 42;3 AZALEA HEALTH in standard characters, with a disclaimer of HEALTH, for “consulting services in the fields of medical billing services and management of medical practices and medical laboratories” in Int. Class 35 and “providing a website featuring non-downloadable software for medical practice management, for management of medical laboratories, for management of data related to drug and alcohol testing, and for management of electronic healthcare records; computer hardware and software consulting services in the fields of 2 Application Serial No. 86492390 was filed on December 30, 2014 based on alleged bona fide intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). 3 Registration No. 4278314 issued January 22, 2013, and has been maintained. Opposition No. 91222695 - 3 - medical billing, medical management, medical” in Int. Class 42;4 AZALEA HEALTH INNOVATIONS in standard characters, with a disclaimer of HEALTH, for “Providing a website featuring non-downloadable software for medical practice management, for management of medical laboratories, for management of data related to drug and alcohol testing, and for management of electronic healthcare records” in Int. Class 42;5 and AZALEA HEALTH INNOVATIONS in standard characters, with a disclaimer of HEALTH, for “consulting services in the fields of medical billing services and management of medical practices and medical laboratories” in Int. Class 35 and “computer hardware and software consulting services in the fields of medical billing, medical management, medical laboratories, drug and alcohol testing, and electronic healthcare records” in Int. Class 42.6 Opposer submitted a TSDR printout for each registration with its Notice of Opposition, showing each registration is subsisting and owned by Opposer.7 Opposer also claims common law use since July 1, 2007 of AZALEA, AZALEA HEALTH, and AZALEA HEALTH INNOVATIONS in connection with “providing technology solutions and services for the healthcare industry in fields such as medical billing, medical practice management (e.g., dental practices, mental health practices, general 4 Registration No. 4559388 issued July 1, 2014. The reference to “medical” at the end of the identification is unclear, and may refer to the medical field or may constitute a typographical error of some kind. 5 Registration No. 4098207 issued February 14, 2012, and has been maintained. 6 Registration No. 4098208 issued February 14, 2012, and has been maintained. 7 1 TTABVUE 17-27 (Notice of Opposition). Citations refer to TTABVUE, the Board’s online docketing system. Opposition No. 91222695 - 4 - practices, etc.), medical laboratory management, pharmacy management, and hospital management.”8 In its Answer, Applicant denies the salient allegations in the Notice of Opposition. The opposition is fully briefed. I. Evidentiary Record The record includes the pleadings and pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b), the files of the opposed applications. The parties have agreed that the evidentiary record consists of the following:9 1. Opposer’s Trial Declaration of Baha Zeidan, Opposer’s Chief Executive Officer, executed February 6, 2017, with Exhibits 1–11. 27 TTABVUE and 43 TTABVUE. 2. Opposer’s Trial Declaration of Kelly Hagin, a software support specialist employed by Opposer, executed February 2, 2017, with Exhibit 1. 23 TTABVUE. 3. Opposer’s Trial Declaration of Heather Ivey, Opposer’s employee who works in customer engagement, executed February 3, 2017, with Exhibit 1. 19 TTABVUE and 42 TTABVUE. 4. Opposer’s Trial Declaration of Marty Nall, a software support specialist employed by Opposer, executed February 3, 2017, with Exhibit 1. 25 TTABVUE. 5. Opposer’s Trial Declaration of Lance Bennett, a software support specialist employed by Opposer, executed February 2, 2017, with Exhibit 1. 20 TTABVUE. 6. Opposer’s Trial Declaration of Julee Lincoln, Opposer’s director of client relations, executed February 2, 2017, with Exhibit 1. 29 TTABVUE. 8 1 TTABVUE 9. 9 66 TTABVUE 6 (Applicant’s Brief, stating “Appellant accepts Opposer’s description of the record”). Opposition No. 91222695 - 5 - 7. Opposer’s Trial Declaration of Amy Taylor, Opposer’s business office specialist, executed February 3, 2017. 26 TTABVUE. 8. Opposer’s Trial Declaration of Victoria Burke, a software implementation specialist employed by Opposer, executed February 3, 2017. 21 TTABVUE. 9. Opposer’s Trial Declaration of Julie Harper, Opposer’s Enterprise Account Manager, executed February 2, 2017. 24 TTABVUE. 10. Opposer’s Trial Declaration of Jason Faulk, a software developer employed by Opposer, executed February 3, 2017, with Exhibit 1. 22 TTABVUE. 11. Opposer’s Trial Declaration of Christie Youssef, a physician employed by Applicant, executed February 6, 2017, with Exhibit 1. 30 TTABVUE and 59 TTABVUE. 12. Opposer’s Trial Declaration of Shonda Waller, a pharmacist employed by Applicant, executed February 6, 2017, with Exhibit 1. 28 TTABVUE and 58 TTABVUE. 13. Opposer’s First Notice of Reliance, 15 TTABVUE and 44 TTABVUE.on: a. Exhibit A, Applicant’s 30(b)(6) Discovery Deposition, taken October 26, 2016; and b. Exhibit B, Applicant’s Supplemental Responses to the 30(b)(6) Discovery Deposition and the associated correspondence regarding the same. 14. Opposer’s Second Notice of Reliance, 16 TTABVUE and 45 TTABVUE,on: a. Exhibit C, Applicant’s Answers to Opposer’s First Set of Interrogatories; b. Exhibit D, Applicant’s Responses to Opposer’s First Set of Requests for Admissions; c. Exhibit E, Applicant’s Responses to Opposer’s First Set of Requests for Production of Documents and Things; Opposition No. 91222695 - 6 - d. Exhibit F, Applicant’s Initial Responses and Objections to Opposer’s Second Set of Interrogatories; e. Exhibit G, Applicant’s Verified Responses and Objections to Opposer’s Second Set of Interrogatories; and f. Exhibit H, Applicant’s Amended Verified Answers to Opposer’s Second Set of Interrogatories. 15. Opposer’s Third Notice of Reliance, 17 TTABVUE, on: a. Exhibit I, TSDR Registration No. 5023396; b. Exhibit J, TSDR Registration No. 4444430; c. Exhibit K, TSDR Registration No. 4390544; d. Exhibit L, TSDR Registration No. 4933193; e. Exhibit M, TSDR Registration No. 4923617; f. Exhibit N, TSDR Registration No. 5082937; g. Exhibit O, TSDR Registration No. 4925032; h. Exhibit P, TSDR Application Serial No. 86829608; i. Exhibit Q, TSDR Application Serial No. 85960653; and j. Exhibit R, TSDR Registration No. 5112975. 16. Opposer’s Fourth Notice of Reliance, 18 TTABVUE, on: a. Exhibit S, screenshots of Piedmont Health’s website; b. Exhibit T, screenshots of Tallahassee Memorial Healthcare’s website; c. Exhibit U, screenshots of Florida Hospital Orlando’s website; d. Exhibit V, screenshots of Mayo Clinic Jacksonville’s website; e. Exhibit W, screenshots of University of Florida Health’s website; Opposition No. 91222695 - 7 - f. Exhibit X, screenshots of Coliseum Health System’s website; and g. Exhibit Y, screenshots of HealthIT.gov. 17. Opposer’s Fifth Notice of Reliance, 57 TTABVUE, on: a. Exhibit Z, screenshots of LinkedIn website; b. Exhibit AA, screenshots of Glassdoor website; and c. Exhibit BB, screenshots of Broadway World website. 18. Exhibit A to Opposer’s Notice of Opposition, TSDR Registration No. 4278324, for the mark AZALEA. 1 TTABVUE. 19. Exhibit B to Opposer’s Notice of Opposition, TSDR Registration No. 4559388, for the mark AZALEA HEALTH. 1 TTABVUE. 20. Exhibit C to Opposer’s Notice of Opposition, TSDR Registration No. 4098207, for the mark AZALEA HEALTH INNOVATIONS. 1 TTABVUE. 21. Exhibit D to Opposer’s Notice of Opposition, TSDR Registration No. 4098208, for the mark AZALEA HEALTH INNOVATIONS. 1 TTABVUE. 22. Applicant’s Trial Declaration of Laura Spencer, executed April 6, 2017, with Exhibits A–U. 36 TTABVUE and 46 TTABVUE. 23. Applicant’s Oral Cross Examination and Opposer’s Redirect Examination of Julie Harper, taken February 2, 2018, with Exhibits 1 and 2. 60 TTABVUE and 62 TTABVUE. 24. Applicant’s Oral Cross Examination and Opposer’s Redirect Examination of Amy Taylor, taken February 7, 2018, with Exhibits 1 – 6. 60 TTABVUE and 62 TTABVUE. 25. Applicant’s Oral Cross Examination and Opposer’s Redirect Examination of Lance Bennett, taken February 7, 2018, with Exhibits 1 and 2. 60 TTABVUE and 62 TTABVUE. Opposition No. 91222695 - 8 - 26. Applicant’s Oral Cross Examination and Opposer’s Redirect Examination of Jason Faulk, taken February 2, 2018, with Exhibit 1. 60 TTABVUE and 62 TTABVUE. 27. Applicant’s Oral Cross Examination and Opposer’s Redirect Examination of Kelly Hagin, taken February 7, 2018, with Exhibits 1 and 2. 60 TTABVUE and 62 TTABVUE. 28. Applicant’s Oral Cross Examination of Heather Ivey, taken February 2, 2018, with Exhibits 1 and 2. 60 TTABVUE and 62 TTABVUE. 29. Applicant’s Oral Cross Examination of Marty Nall, taken February 7, 2018, with Exhibit 1. 60 TTABVUE and 62 TTABVUE. 30. Applicant’s Trial Declaration of Christie Youssef, executed April 5, 2017. 34 TTABVUE. 31. Applicant’s Trial Declaration of Shonda Waller, executed April 5, 2017, with Exhibit A. 35 TTABVUE. 32. Applicant’s First Notice of Reliance, 31 TTABVUE and 47 TTABVUE, on: a. Exhibit H, Discovery Deposition of Julee Lincoln, taken on October 20, 2016 (31 TTABVUE 311-32); and b. Exhibit N, Discovery Deposition of Baha Zeidan, taken on November 2, 2016 (47 TTABVUE 267-400). 33. Applicant Second Notice of Reliance, 32 TTABVUE and 48 TTABVUE, on: a. Exhibit O, Opposer’s Responses to Applicant’s First Set of Interrogatories; b. Exhibit P, Opposer’s Supplemental Responses to Applicant’s First Set of Interrogatories; and c. Exhibit Q, Opposer’s Second Supplemental Responses to Applicant’s First Set of Interrogatories. 34. Applicant’s Third Notice of Reliance on: Exhibit R, Securities and Exchange Commission (SEC) filing, identified as an SEC official record. 33 TTABVUE. Opposition No. 91222695 - 9 - The record includes materials designated as confidential by the parties, which are discussed only in general terms. The Board previously granted Opposer’s motion to strike certain discovery depositions offered by Applicant at 31 and 32 TTABVUE, so those materials are not part of the record and have not been considered. The original filings were improperly designated entirely confidential, so Applicant resubmitted redacted versions of the discovery depositions, pursuant to a Board order regarding the over-designation. 41 TTABVUE 3. However, in the same order, the discovery depositions were stricken from the record. 41 TTABVUE 10. Therefore, the redacted versions of these depositions at 47 TTABVUE are non-confidential versions of the stricken evidence. While the parties agree on the contents of the record, Applicant lodged objections to portions of the evidence.10 We overrule Applicant’s hearsay objections to declaration and deposition testimony regarding instances when the declarants (Opposer’s employees) received or observed third-party communications constituting alleged actual confusion. To the extent that “[t]he [third-party] statements are not offered for the truth of the statements but rather simply for the fact that they were made,” they are not hearsay. Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1552 (TTAB 2012); see also Fin. Co. of Am. v. Bank-America Corp., 205 USPQ 1016, 1035 (TTAB 1979, as amended 1980) (employees’ testimony regarding receipt of misdirected mail or telephone calls not hearsay), aff’d in non-precedential opinion, Appeal No. 80-558 (CCPA 1981); 4 10 66 TTABVUE 40-42 (Applicant’s Brief, Appendix). Opposition No. 91222695 - 10 - McCarthy on Trademarks and Unfair Competition § 23:15 (5th ed.) (consistent with “the majority of courts,” “[i]n my view, it is clear that testimony from the plaintiff- trademark owner’s employees or others about what customers have told them about their mistaken beliefs should not be excluded from evidence as ‘hearsay.’”). Nonetheless, in considering such employee testimony and any inferences we are asked to draw therefrom, we bear in mind that we do not have direct testimony from the consumers who have experienced the alleged confusion. See Couch/Braunsdorf Affinity v. 12 Interactive, LLC, 110 USPQ2d 1458, 1480 (TTAB 2014) (“probative value is diminished by the fact that the prospective or actual customer was not called as a witness to testify and be subject to cross-examination”). We also overrule Applicant’s objection to portions of its own submissions, (which Applicant submitted with its First Notice of Reliance (47 & 49 [supplement] TTABVUE) and Second Notice of Reliance (32 [confidential] and 48 [public] TTABVUE) on Opposer’s discovery responses. See 37 C.F.R. § 2.120(k)(7) (“When … an answer to an interrogatory… has been made of record by one party in accordance with the provisions of paragraph (k)(3) of this section, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence”). Applicant objects to some of its own evidentiary submissions, consisting of the trial cross-examination depositions of Opposer’s employees and declaration testimony concerning alleged actual confusion.11 Applicant objects to the testimony or to 11 In objecting to certain trial deposition testimony of Opposer’s employees, Applicant may have intended to cite 60 TTABVUE and 62 TTABVUE. Opposition No. 91222695 - 11 - exhibits as beyond the scope of cross-examination, an improper attempt to introduce documents after the discovery cut-off, lack of authentication, lack of foundation, and consisting of speculation. Applicant offered these materials for admission into evidence, and we overrule its objections to its own evidentiary offerings. These depositions and the objected-to portions consist principally of Applicant’s cross- examination of Opposer’s witnesses following their declaration testimony, and thus we find no basis for the “beyond the scope” objection. Moreover, some of Applicant’s objections were not preserved during the deposition testimony. See Pass & Seymour, Inc. v. Syrelec, 224 USPQ 845, 847 (TTAB 1984) (“It is our view that all of respondent’s objections [including authentication and foundation] are of the type that could have been remedied or obviated had they been made during the taking of the deposition. See Trademark Rule 2.123(k) and [FRCP] 32(d)(3)(A).”). And as to the documents attached to the depositions as exhibits, we agree with Opposer that it appropriately supplemented its discovery responses with these materials, and overrule the objection that they came after the discovery deadline. We also overrule Applicant’s objections to the declaration testimony of Baha Zeidan, as we do not agree that the testimony and exhibits lack proper foundation or authentication, or consist of improper speculation. We overrule Applicant’s objection to Opposer’s First Notice of Reliance, 44 TTABVUE, “Applicant’s Supplemental Responses to 30(b)(6) Deposition and Associated Correspondence” email communication, as improper subject matter for a notice of reliance. 37 C.F.R. § 2.122(g) (setting forth what types of evidence are Opposition No. 91222695 - 12 - acceptable under a notice of reliance). Opposer correctly notes that this material should be admissible as a supplement to a deposition based on the parties’ counsel’s agreement, which is apparent from their email communication regarding supplementation of the deposition of Applicant’s Rule 30(b)(6) witness subsequent to the deposition. See 44 TTABVUE 159-167. II. Standing Opposer must prove standing by showing a real interest in the outcome of the proceeding and a reasonable basis for believing that it would suffer damage if the mark is registered. See 15 U.S.C. § 1063; Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014). Opposer’s pleaded registrations, for which Opposer has proven status and title, establish its standing. See Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727- 28 (Fed. Cir. 2012); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000). III. Priority Because Opposer has made its registrations of record, which Applicant has not counterclaimed to cancel, priority is not an issue as to the marks and goods or services covered by the registrations. See Top Tobacco LP v. N. Atl. Op. Co., 101 USPQ2d 1163, 1169 (TTAB 2011) (citing King Candy, Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 82 USPQ 108 (CCPA 1974)). See also Massey Junior Coll., Inc. v. Fashion Inst. of Tech., 492 F.2d 1399, 181 USPQ 272, 275 n.6 (CCPA 1974) (“prior use need not be shown by a plaintiff relying on a registered mark unless the defendant counterclaims Opposition No. 91222695 - 13 - for cancellation”); Itel Corp. v. Ainslie, 8 USPQ2d 1168, 1169 (TTAB 1988) (“because of the existence of opposer’s valid and subsisting registration, it need not prove prior use as to the services recited therein”). Opposer also established priority as to its common law use of the same marks in connection with various services, including providing an online patient portal under the mark AZALEA HEALTH.12 Opposer’s CEO Baha Zeidan testified in his declaration: In addition to its registrations, the AZALEA, AZALEA HEALTH, and AZALEA HEALTH INNOVATIONS marks are also used by Azalea Health in connection with providing technology solutions and services for the healthcare industry in fields such as medical billing, medical practice management (e.g., mental health practices, general practices, etc.), medical laboratory management, pharmacy management, and hospital management. Azalea Health has continuously used the marks in association with the above-listed products and services since at least as early as July 1, 2007.13 IV. Likelihood of Confusion The determination under Section 2(d) involves an analysis of all of the probative evidence of record bearing on a likelihood of confusion. In re E.I. duPont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). A likelihood of confusion analysis often focuses on the similarities between the marks and the 12 Opposer’s Azalea Health Patient Portal launched in October 2011. 43 TTABVUE 4; see also id. at 11-15; 22 TTABVUE 3. 13 43 TTABVUE 7. Opposition No. 91222695 - 14 - 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.”). Opposer bears the burden of proving its claim of likelihood of confusion by a preponderance of the evidence. Cunningham, 55 USPQ2d at 1848. Opposer may establish likelihood of confusion as to a class of goods or services by showing the relatedness of its services to any item within that class of goods or services in the opposed application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Comput. v. TVNET.Net, Inc., 90 USPQ2d 1393, 1398 (TTAB 2007). In our likelihood of confusion analysis, we focus on Opposer’s common law rights in and registrations for the marks AZALEA and AZALEA HEALTH. We consider these marks and services most relevant to the likelihood of confusion analysis, and therefore need not consider the AZALEA HEALTH INNOVATIONS mark. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010). A. Similarity of the Marks With respect to the marks, we must compare them “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). The test assesses not whether the marks can be distinguished in a side-by-side comparison, but rather whether their overall commercial impressions are so similar that confusion as to the Opposition No. 91222695 - 15 - source of the goods offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at 1721; see also Edom Labs., 102 USPQ2d at 1551. Similarity in any one of the elements of sound, appearance, meaning, or commercial impression suffices to support a determination of likelihood of confusion. See 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 re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (“Similarity in any one of these elements may be sufficient to find the marks confusingly similar.”). Applicant concedes in its Brief: Applicant does not contest that both of its applied-for marks are similar to Opposer’s Marks, nor that Applicant’s AZALEA HEALTH mark is identical in appearance and sound to Opposer’s AZALEA HEALTH mark.14 Nonetheless, Applicant contends that in the context of their respective services, the marks differ sufficiently in commercial impression that likely confusion is avoided. First, Opposer’s and Applicant’s AZALEA HEALTH marks are identical. Turning to Applicant’s AZALEA HEALTHCARE mark, it is very similar in appearance and sound to Opposer’s AZALEA and AZALEA HEALTH marks. The arbitrary word AZALEA dominates all of the marks at issue. As the first word in AZALEA HEALTH and AZALEA HEALTHCARE, it “is most likely to be impressed upon the mind of a purchaser and remembered.” Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988); Palm Bay Imps., 73 USPQ2d at 14 66 TTABVUE 24-25 (Applicant’s Brief). Opposition No. 91222695 - 16 - 1692. To the extent the marks contain additional matter (HEALTH, HEALTHCARE), it merely describes the nature of the services and therefore consumers would be unlikely to rely on such wording to distinguish source. See Cunningham, 55 USPQ2d at 1846 (“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.’”); In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997) (in comparing THE DELTA CAFÉ to DELTA, the term CAFÉ lacks sufficient distinctiveness to create a different commercial impression); In re Nat’l Data Corp., 753 F.2d 1056, 1060, 224 USPQ 749, 752 (Fed. Cir. 1985). The connotations and commercial impressions of the marks are either identical or very similar. The identical words AZALEA and HEALTH create the same meaning and impression in each mark, and HEALTHCARE is sufficiently similar to HEALTH to render the same general meaning and impression. Given the similarity in appearance, sound, connotation and commercial impression of all the marks at issue, this DuPont factor weighs in favor of a finding of likely confusion. B. The Services “[L]ikelihood of confusion can be found ‘if the respective [services] are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.’” Coach Servs., 101 USPQ2d at 1722 (internal citations omitted). In fact, relatedness may be found if consumers would believe that Opposer’s and Applicant’s services are Opposition No. 91222695 - 17 - “in some way associated with the same producer” or that there is an association between the sources of the services. Hilson Research, Inc. v. Society for Human Resource Management, 27 USPQ2d 1423, 1432 (TTAB 1993). Also, given the identical and highly similar marks at issue, the necessary degree of similarity between services for confusion to be likely declines. See Orange Bang, Inc. v. Ole Mexican Foods, Inc., 116 USPQ2d 1102, 1117 (TTAB 2015). As an initial matter, we address Applicant’s citation to Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) and Octocom Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990) for the proposition that our comparison of the services must focus only on the identified services in Opposer’s registrations. In Stone Lion Capital, the court held that “[i]t was proper, however, for the Board to focus on the application and registrations rather than on real world conditions, because ‘the question of registrability of an Applicant’s mark must be decided on the basis of the identification of goods set forth in the application.’” (quoting Octocom Sys., 16 USPQ2d at 1787)). Those cases did not involve common law rights, and the identifications in the registrations and applications properly controlled the analysis. Stone Lion Capital, 110 USPQ2d at 1158-59; Octocom, 16 USPQ2d at 1785. In this case we consider both registrations and common law rights. Thus the principle that marketplace conditions may not be considered only applies with respect to our consideration of the registrations, and not the prior common law rights, which necessarily involve proof from the marketplace. Opposition No. 91222695 - 18 - As to the relatedness of Opposer’s services to Applicant’s services in International Class 44, we focus on Applicant’s recited “medical services in the field of primary care.” Opposer contends that Applicant’s broadly identified medical services encompass at least some of Opposer’s “patient-facing front-office services like on-line patient portals, telemedicine, and appointment scheduling and reminders, as well as back-office billing and management services.”15 Opposer presented evidence of common law use of its marks in connection with “back-office” services for medical practices such as medical billing, medical practice management, medical laboratory management, pharmacy management, and hospital management.16 Opposer’s patient-facing “front-office” services with the marks include an online patient portal, mobile app, a video-conferencing platform for telemedicine, appointment management, and telephone answering service.17 Opposer’s identified services in its AZALEA and AZALEA HEALTH registrations also include “providing a website featuring non-downloadable software … for management of electronic healthcare records,” which, as is apparent from the discussion below, appears to be a feature of most online patient portals. We find that primary care medical services such as those identified by Applicant are at least highly related to online patient portals, which Opposer offers under its marks. The record shows that consumers are accustomed to their medical service 15 63 TTABVUE 30 (Opposer’s Brief). 16 43 TTABVUE 3 (Zeidan Declaration). 17 43 TTABVUE 4-6 (Zeidan Declaration). Opposition No. 91222695 - 19 - providers offering online patient portals under the same mark. First, Applicant itself does so, as Applicant’s CEO testified that it offers an online patient portal to patients who use Applicant’s primary care medical services.18 Second, Opposer also introduced screenshots from various third-party websites of medical service providers also offering patients an online portal under the same mark. See In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (evidence of third parties offering both types of goods under the same mark demonstrates relatedness of the goods). Among other similar examples in this record:19 • Piedmont Healthcare shows a MyChart Piedmont Healthcare login to communicate with a doctor “from the comfort of your own home.”20 • Tallahassee Memorial Healthcare offers its myTMH Patient Portal to access medical records, pay bills, and send medical information to other healthcare providers.21 • Florida Hospital Orlando offers a “patient tool for secure, convenient, 24/7 access” to pay bills, request appointments, and view medical records.22 18 44 TTABVUE 34-37; 46 TTABVUE 5. Although Applicant argues that its portal services come through a third-party provider that uses its own mark, NEXTMD, Applicant has acknowledged that patients reach the portal through Applicant’s website under the marks at issue. 15 TTABVUE 243-44. 19 18 TTABVUE 23-36. 20 18 TTABVUE 8. 21 18 TTABVUE 10-13. 22 18 TTABVUE 15-17. Opposition No. 91222695 - 20 - • The Mayo Clinic website links to its “Patient online services” to see records and test results, and manage appointments and billing.23 • The University of Florida Health website provides the MyUFHealth (MyChart) portal as well as a smartphone app allowing patients to view appointments, medications, test results, communicate with providers, and request medication refills.24 In further support of relatedness, Opposer established that in connection with its online patient portal services, it interacts directly with medical practice patients through the “live chat feature [by which patients] ask questions, for example how to set up their patient portal,”25 and through phone calls from medical patients “seeking technical assistance regarding [Opposer’s] software and other products/services, such as the [Azalea Health] patient portal.”26 See, e.g., Bonaventure Assoc. v. Westin Hotel Co., 218 USPQ 537, 546 (TTAB 1983) (finding overlap between hotel services and restaurant services because hotel customers encounter and frequent restaurants at the hotel, such that they are an “integral part” of the hotel services). Third, the record includes additional evidence in the form of several use-based third-party registrations that include services such as Opposer’s and Applicant’s under the same mark.27 For example, Registration Number 4390544 lists both 23 18 TTABVUE 19-22. 24 18 TTABVUE 24-25. 25 42 TTABVUE 3. 26 20 TTABVUE 3. 27 17 TTABVUE 7-40. The pending applications Opposer submitted are not probative, as they establish nothing more than that they were filed. Edwards Lifesciences Corp. v. VigiLanz Opposition No. 91222695 - 21 - “hosting software for use by others in database management, billing and invoicing, customer relationship management (CRM), all in the field of … medical home health care …” in International Class 35 and “medical services” in International Class 44 under the same mark.28 Similarly, Registration Number 4933193 lists both “medical services” in International Class 44 and “development and implementation of software and technology solutions for the purpose of management and quality control in the fields of healthcare, medical services, radiology, and healthcare providers” in International Class 42 under the same mark.29 “The use-based, third-party registrations . . . have probative value to the extent that they serve to suggest that the goods listed therein are of a kind which may emanate from a single source under a single mark.” Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1432 (TTAB 2013); see also In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785- 86 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). Applicant emphasizes that Opposer provides technology services, not healthcare services, and criticizes Opposer’s characterization of itself as being in the healthcare industry. Applicant points out that Opposer does not employ medical staff, have medical equipment, or provide pharmacy, dental, or mental health services. However, the issue here is not whether purchasers would confuse the services, but rather Corp., 94 USPQ2d 1399, 1403 n.4 (TTAB 2010); Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007). 28 17 TTABVUE 8-11. 29 17 TTABVUE 23-25. Opposition No. 91222695 - 22 - whether there is a likelihood of confusion as to the source or sponsorship of these services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). Even when services are not the same, where the evidence shows that consumers are used to encountering them from the same provider, they can be sufficiently related to “give rise to the mistaken belief that [the services] emanate from the same source.” See Coach Servs., Inc., 101 USPQ2d at 1722. The record in this case shows that the online patient portal services Opposer offers, which appear to equate to “providing a website featuring non-downloadable software … for management of electronic healthcare records” in Opposer’s AZALEA registration, are highly related to medical services such as Applicant’s, and the distinction Applicant attempts to draw is not persuasive. Next, turning to Applicant’s retail pharmacy services in International Class 44, although the parties focused less attention in their briefing and evidentiary record to these services, we also find them sufficiently related to Opposer’s services to support a likelihood of confusion. The third-party website evidence detailed above shows that at least some of the online portals offered by medical service providers include pharmacy services as a feature of the patient portal. For example, the Mayo Clinic’s portal offers patients the option to “Refill any Mayo Clinic prescription online thru your Mayo Clinic Pharmacy,”30 and the University of Florida Health portal and app includes the option to request medication refills.31 Applicant also has acknowledged 30 18 TTABVUE 22. 31 18 TTABVUE 24-25. Opposition No. 91222695 - 23 - that it offers an online patient portal in addition to its retail pharmacy services, which is another illustration of consumers encountering these services from the same source. And one of the use-based third-party registrations discussed above includes under the same mark both retail pharmacy services and “providing on-line information service in the field of health.”32 Opposer also submitted evidence of at least one incident where a medical patient of Applicant’s used the online chat feature on Opposer’s website to attempt to address a prescription-related payment issue he encountered with “azalea health pharmacy.”33 Thus, the evidentiary record also suggests the relatedness of Opposer’s services to Applicant’s retail pharmacy services. This factor weighs in favor of a likelihood of confusion. C. Trade Channels and Classes of Consumers Notably, Applicant acknowledges in its Brief that “there is some overlap of trade channels.”34 However, Applicant argues that because the record does not show that Applicant markets to physicians’ offices, or that Opposer markets to patients, the trade channels are “more dissimilar than similar.”35 We agree that there are overlapping trade channels, but not that other evidence makes the trade channels more dissimilar than similar. While some of the recited services in Opposer’s pleaded registrations suggest, on their face, trade channels for 32 17 TTABVUE 13-16. 33 42 TTABVUE 2-6. 34 66 TTABVUE 33 (Applicant’s Brief). 35 66 TTABUVE 34 (Applicant’s Brief). Opposition No. 91222695 - 24 - healthcare businesses and practices, other services are unrestricted. For example, Opposer’s website featuring software for management of healthcare records could be used by patients who use online patient portals to review and manage their own medical records. This class of ordinary consumers, i.e., patients, is the same as the class of consumers of Applicant’s services. The third-party website evidence discussed above reflects that the same patients using medical and pharmacy services also use online patient portals and websites with software to manage their healthcare records. Thus, services such as Applicant’s and Opposer’s are travelling in at least some of the same channels of trade, reaching the same classes of consumers. As to Opposer’s common law services in particular, while its direct paying customers are businesses – typically medical practices36 – the record makes clear that some of the end consumers of Opposer’s services are the medical practice patients, who interact directly with Opposer.37 Thus, in the marketplace for Opposer’s common law services, we also find some overlap in the classes of consumers. This factor weighs in favor of a finding of a likelihood of confusion for both of Applicant’s classes of services. D. Actual Confusion “A showing of actual confusion would of course be highly probative, if not conclusive, of a high likelihood of confusion.” In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1205 (Fed. Cir. 2003). In our proceedings, “[a]ctual confusion 36 43 TTABVUE 3. 37 E.g., 43 TTABVUE 6; 42 TTABVUE 3; 20 TTABVUE 3; 19 TTABVUE 3. Opposition No. 91222695 - 25 - is entitled to great weight but only if properly proven.” Georgia-Pacific Corp. v. Great Plains Bag Co., 614 F.2d 757, 204 USPQ 697, 701 (CCPA 1980). Properly introducing instances of actual confusion into the record and persuading the trier of fact as to the probative value of such evidence is Opposer’s burden. See Couch/Braunsdorf Affinity, 110 USPQ2d at 1479. Opposer submitted evidence it contends shows that Applicant’s use of its mark has created actual consumer confusion. In general terms, this evidence includes: • Patient posts to Opposer’s public-facing Facebook page based on alleged negative interactions with Applicant.38 • Testimony from Opposer’s employees and evidence regarding approximately 25 contacts by Applicant’s patients or other individuals seeking to reach Applicant about medical care, pharmacy issues, or business matters.39 The other evidence consists of the transcript from an online live chat between a member of Opposer’s staff and a patient allegedly suffering from source confusion,40 as well as screenshots of Applicant’s website that Opposer’s staff sometimes consulted to confirm that callers were seeking to contact 38 43 TTABVUE 8-9, 48-50. 39 19 TTABVUE 3, 5; 20 TTABVUE 4; 21 TTABVUE 3-4; 22 TTABVUE 3; 23 TTABVUE 4; 24 TTABVUE 3; 25 TTABVUE 4; 26 TTABVUE 3-4; 42 TTABVUE 3; 29 TTABVUE 4; 49 TTABVUE 12-23, 54-55. Several witnesses testified that there were numerous additional similar contacts that occurred before Opposer began documenting them in 2015. 40 E.g., 42 TTABVUE 5. Opposition No. 91222695 - 26 - Applicant.41 Some of the testimony includes additional details about reported confusion, such as callers’ statements that they were patients at office locations of Applicant’s,42 or a caller’s insistence that Opposer had a “department” of medical “providers at Azalea Health,” and his certainty that he had “the right number” for Applicant because he “indicated that he looked us [Opposer] up on the internet and was sure he had the right number.”43 • Incidents where LinkedIn and Glassdoor.com entries of Applicant’s employees mistakenly listed Opposer as the employer.44 Applicant counters that Opposer’s evidence is inadmissible, and contests Opposer’s representation that Applicant’s employees mistakenly identified Opposer as their employer on LinkedIn.com. Applicant argues, and presented some contrary testimony, that LinkedIn.com automatically populated the employees’ entries with Opposer’s logos and that it does not reflect confusion on the part of the employees. The actual confusion factor considers “confusion as to source in the form of either a potential diversion of sales, damage to goodwill, or loss of control over reputation because of the similarity of the marks.” Couch/Braunsdorf Affinity, 110 USPQ2d at 1481. Overall, while the record does not reflect diverted sales, it does show potential 41 E.g., 25 TTABVUE 3-4. For example, Opposer’s staff researched a particular geographic location or staff member of “Azalea Health” referred to by callers or visitors to confirm that the callers or visitors sought out Applicant. 42 E.g., 26 TTABUE 3; 29 TTABVUE 3. 43 21 TTABVUE 3. 44 43 TTABVUE 9, 51-55; 59 TTABVUE 5-9; 34 TTABVUE 3-4; 58 TTABVUE 5, 7-11; 35 TTABVUE 3; 62 TTABVUE 140-148, 180-83; 57 TTABVUE 6-10; 28 TTABVUE 3; 30 TTABUE 3. Opposition No. 91222695 - 27 - damage to goodwill or loss of control over reputation caused by the similarity of the marks, as well as source confusion on the part of actual consumers of some of the services at issue. While some of the evidence does not reflect the type of actual confusion considered relevant for likelihood of confusion purposes, other evidence does. Many situations went beyond a mere misdirected communication. It is particularly persuasive that in numerous situations, Applicant’s patients clearly believed that Opposer’s and Applicant’s services came from the same source, because they sought support and assistance from Opposer. We find the DuPont factor regarding actual confusion favors a finding of likelihood of confusion.45 E. Thirteenth DuPont Factor Presumably under the thirteenth “catchall” DuPont factor, Opposer argues that Applicant’s awareness of Opposer’s marks in advance of Applicant’s adoption of the marks at issue46 weighs against Applicant. Applicant counters that it took care in selecting its marks, and considered its services sufficiently different from Opposer’s that Applicant should be deemed to have acted in good faith. The record reflects that Applicant was aware of Opposer’s marks in advance of the selection of the opposed marks, but that Applicant did not have trademark counsel at that point, and relied on the judgment of a non-attorney marketing consultant to 45 Given the controversy surrounding the actual confusion evidence, we note as an aside that we would have reached the same ultimate conclusion on likelihood of confusion even if this factor were neutral. 46 46 TTABVUE 5-7; 44 TTABVUE 50-52. Opposition No. 91222695 - 28 - proceed with the opposed marks because Opposer “didn’t provide health care.”47 While Applicant’s overly narrow view of the scope of Opposer’s trademark protection and its failure to consult with trademark counsel may have been imprudent, the record does not point to bad faith. We consider this factor neutral. V. Conclusion Based on the similarity between Opposer’s and Applicant’s marks for related services that travel in some of the same channels of trade to at least some of the same classes of purchasers, resulting in instances of actual source confusion, we conclude that a likelihood of confusion exists. Decision: The opposition is sustained as to both applied-for marks for the services in both International Classes 35 and 44. 47 44 TTABVUE 53.