Central Florida Family Health Center, Inc. DBA True Health

Trademark Trial and Appeal Board

Jun 6, 2018

No. 87055363 (T.T.A.B. Jun. 6, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 6, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Central Florida Family Health Center, Inc.
DBA True Health
_____

Serial No. 87055363
Serial No. 87055475
_____

Renee L. Duff of Nolte Intellectual Property Law Group,
for Central Florida Family Health Center, Inc.
Saima Makhdoom, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Shaw, Greenbaum and Lynch,
Administrative Trademark Judges

Opinion by Greenbaum, Administrative Trademark Judge:
Central Florida Family Health Center, Inc. DBA True Health (“Applicant”) filed
two applications seeking registration on the Principal Register of the marks
1. TRUE HEALTH and design and
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2. TRUE HEALTH EXPRESS and design

both for
Medical Referrals; Retail pharmacy services in
International Class 35.1
In each application, 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 that Applicant’s mark, when used in connection with Applicant’s services,
so resembles the previously registered mark TRUHEALTH (in standard characters)
for “Behavioral health services for the elderly; psychiatric services for the elderly;
comprehensive post-acute rehabilitation services for the elderly, namely, psychiatric
services, behavioral health services, and nursing care” in International Class 44 as
to be likely to cause confusion, mistake or deception.2

1 Application Serial Nos. 87055363 and 87055475, respectively. The former was filed on May
31, 2016 based upon Applicant’s claim of first use anywhere and use in commerce since at
least as early as January 30, 2015, and includes the following description of the mark: “The
mark consists of four ribbons in the form of a square cross above the words ‘true health’ in
stylized font.” The word HEALTH is disclaimed. Color is not claimed as a feature of the mark.
The latter was filed on May 31, 2016 based upon Applicant’s claim of use anywhere and use
in commerce since at least as early as November 23, 2015, and includes the following
description of the mark: “The mark consists of four ribbons in the form of a square cross to
the right of which are the words ‘true health’ in stylized font, below which are four lines to
the left of the word ‘express’ in stylized font.” The words HEALTH EXPRESS are disclaimed.
Color is not claimed as a feature of the mark.
2 Registration No. 4629068 issued on October 28, 2014.
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When the refusal was made final in each application, Applicant appealed and
requested reconsideration. After the Examining Attorney denied the requests for
reconsideration, the appeals were resumed. We consolidate the appeals and decide
them in a single opinion because they involve common issues of law and fact and
largely identical records. See In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012)
(Board sua sponte consolidated two appeals); In re Bacardi & Co. Ltd., 48 USPQ2d
1031, 1033 (TTAB 1997) (Board sua sponte considered appeals in five applications
together and rendered single opinion).3
We affirm the refusal to register in each application.
I. Applicable Law – Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in 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., 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 goods or services. See In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d
1944, 1945-46 (Fed. Cir. 2004); 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

3 Unless otherwise noted, all references to TTABVUE are to the appeal in Application Serial
No. 87055363 for the mark TRUE HEALTH and design, and all references to the Trademark
Status & Document Retrieval database (“TSDR”) are to the prosecution history of that same
application, in .pdf format.
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the goods and differences in the marks.”). We discuss below these and other relevant
factors. See M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944,
1947 (Fed. Cir. 2006) (even within du Pont list, only factors that are “relevant and of
record” need be considered). See also In re i.am.symbolic, llc, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers
all DuPont factors for which there is record evidence but ‘may focus … on dispositive
factors, such as similarity of the marks and relatedness of the goods’”) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002)).
A. Number and Nature of Similar Marks in Use in Connection With
Similar Services
Because the strength of the cited mark under the sixth du Pont factor helps inform
our comparison of the marks, we first address Applicant’s claim under this factor that
“TRUE HEALTH” is a weak term entitled to a narrow scope of protection or
exclusivity of use in view of third-party registered marks that include the term TRUE
HEALTH or variations thereof for medical and health care related services, all of
which registered after the cited registration.4 Evidence of third-party use and
registration of a term in the relevant industry is considered in the likelihood of
confusion analysis. Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1674-75 (Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen
GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d

4 App. Br., 19 TTABVUE 7-8.
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1129, 1135-36 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982 (2016) (citing Juice
Generation, 115 USPQ2d at 1674). In this case, however, Applicant submitted no
evidence of actual third-party use, and instead relies exclusively on third-party
registration evidence. The record thus does not demonstrate commercial weakness
from third-party use, and fails to show that consumers actually are conditioned to
distinguish among marks that include TRUE HEALTH (or variations thereof). See In
re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016)
(“Applicant’s citation of third-party registrations as evidence of 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 Midwest Gaming & Entm’t
LLC, 106 USPQ2d 1163, 1167 n.5 (TTAB 2013) (“[T]he mere existence of third-party
registrations is not evidence that the registered marks are actually in use or that the
public is familiar with them.”).
Applicant emphasizes three registrations in International Class 44 for the
following marks and services:
1. TRUE. HEALTH. CARE. for “Health care services, namely, wellness
programs; Health care services, namely, chiropractics; Wellness and health-
related consulting services”;
2. TRUE HEALTH AND FITNESS for “Acupuncture; Chiropractic services”; and
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3. TRUE HEALTH DIAGNOSTICS for “Medical testing services for the
diagnosis, management and prevention of progression of a variety of diseases,
conditions and disorders provided to health care providers.”5
According to Applicant, if these marks can coexist with the cited registration for
TRUHEALTH, then the registration of its marks also should be permitted. We do not
find this argument persuasive.
Although “extensive evidence of third-party use and registrations is ‘powerful on
its face,’ even where the specific extent and impact of the usage has not been
established,” Jack Wolfskin, 116 USPQ2d at 1136 (citing Juice Generation, 115
USPQ2d at 1674), we have no such showing in this case. Applicant has presented, at
most, three such uses, well short of the volume of evidence found convincing in Jack
Wolfskin and Juice Generation. See also Primrose Ret. Cmtys., LLC v. Edward Rose
Senior Living, LLC, 122 USPQ2d 1030 (TTAB 2016) (weakness found based on at
least 85 actual uses of ROSE-formative marks for similar services, eight similar
third-party registrations, expert testimony and other evidence regarding the common
nature of ROSE-formative marks in the industry, and testimony by opposer that it
did not vigorously enforce its mark). We find, therefore, that the mark in the cited
registration, TRUHEALTH, is entitled to a normal scope of protection.

5 Reg. Nos. 5014476, 4719126, and 5107816, respectively.
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B. The similarity or dissimilarity of the marks
We next compare Registrant’s standard character mark TRUHEALTH and
Applicant’s marks TRUE HEALTH and design and TRUE HEALTH
EXPRESS and design “in their entireties as to appearance,
sound, connotation and commercial impression.” In re Viterra, 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting du Pont, 177 USPQ at 567). See also
Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). “The 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, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quotation omitted). Further, marks “‘must be considered … in light of the fallibility
of memory ….’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed.
Cir. 2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 196 USPQ 1 (CCPA 1977)). The proper focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009); Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106 (TTAB 1975). “[S]imilarity is not a binary factor
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but is a matter of degree.” St. Helena Hosp., 113 USPQ2d at 1085 (quoting In re Coors
Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1062 (Fed. Cir. 2003)).
In each application, Applicant argues that the differences in the marks in
appearance due to the design elements in Applicant’s mark are sufficient to
distinguish them. In its application for TRUE HEALTH EXPRESS and design,
Applicant also contends that the word “EXPRESS” in the mark creates a different
commercial impression from Registrant’s mark TRUHEALTH “given the rise in
commercial popularity of ‘urgent care centers’ as alternatives to visiting one’s
primary care physician or waiting for hours to be seen in an emergency room.”6 The
Examining Attorney focuses on the visual, aural, and connotative similarities
between the Registrant’s mark TRUHEALTH and the literal term TRUE HEALTH
in each of Applicant’s marks. The Examining Attorney contends that TRUE HEALTH
is the most distinctive portion, and therefore the strongest source identifying
element, of Applicant’s marks. We agree with the Examining Attorney’s assessment
of the similarity of the marks.
Because the similarity or dissimilarity of the marks is determined based on the
marks in their entireties, our analysis cannot 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. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be

6 (Serial No. 87055475) App. Br., 19 TTABVUE 6.
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dissected and considered piecemeal; rather, it must be considered as a whole in
determining likelihood of confusion.”). 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. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746
F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014) (citing Nat’l Data, 224 USPQ at
751).
Although neither of Applicant’s marks is identical to Registrant’s mark, they are
similar in that the term TRUE HEALTH in Applicant’s marks is phonetically
equivalent to the entirety of Registrant’s mark TRUHEALTH. See Kabushiki Kaisha
Hattori Tokeiten v. Scuotto, 228 USPQ 461, 462 (TTAB 1985) (“the word portion of
applicant’s mark ‘SEYCOS’, is virtually the phonetic equivalent of opposer’s ‘SEIKO’
mark and is, in fact, the phonetic equivalent of the plural of opposer’s mark”). In
certain circumstances, similarity in sound alone may be sufficient to find the marks
confusingly similar. In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581, 1586 (TTAB
2007); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988). In this case,
however, the terms TRUE HEALTH and TRUHEALTH also are nearly identical in
appearance, differing only by one letter and a space. These differences are relatively
minor, especially since they appear in the middle of each mark. Given the overall
visual and aural similarity in the terms, it is unlikely that consumers will notice the
presence or absence of a letter or a space, or treat them as distinguishing features.
Further, the terms TRUE HEALTH and TRUHEALTH engender the identical
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connotation of “true” or “ideal” healthcare services, suggesting, in each instance, a
highly desirable characteristic of those services. The slight misspelling of Registrant’s
mark does not affect the mark’s commercial impression in any significant way. See,
e.g., Contour Chair-Lounge Co. v. Englander Co., 324 F.2d 186, 139 USPQ 285, 288
(CCPA 1963) (“Contur” but a slight misspelling of “Contour,” with identical
pronunciation and meaning); Fleetwood Co. v. Mende, 298 F.2d 797, 132 USPQ 458,
460 (CCPA 1962) (TINTZ merely a phonetic spelling of “tints”). Moreover, in making
the arguments discussed above concerning the purported weakness of the term TRUE
HEALTH, Applicant acknowledges by implication that TRUE HEALTH and
TRUHEALTH are similar.
With respect to Applicant’s mark TRUE HEALTH EXPRESS and design, the
addition of the highly descriptive, if not generic, word EXPRESS (which, as Applicant
and the Examining Attorney both point out, refers to the provision of “urgent”
healthcare services)7 is not sufficient to distinguish Applicant’s mark from
Registrant’s mark TRUHEALTH. 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 Nat’l Data, 224 USPQ at 752);
In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997). The
addition of the term EXPRESS to TRUE HEALTH does not change the meaning of
TRUE HEALTH in the way that, for example, the additional word CLEAR in ALL

7 (Serial No. 87055475) App. Br., 19 TTABVUE 6, Ex. Atty. Br., 21 TTABVUE 8 n.2.
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CLEAR changes the meaning of the single word ALL. Lever Bros. Co. v. The Barcolene
Co., 463 F.2d 1107, 174 USPQ 392 (CCPA 1972).
We recognize that the term HEALTH in each application also is highly descriptive
of, if not generic for, the identified services, and that Applicant has disclaimed
HEALTH and HEALTH EXPRESS, as appropriate. In re Code Consultants, Inc., 60
USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in
creating the mark’s commercial impression”). However, because the words TRUE
HEALTH are displayed in the same font, next to each other, and on a separate line
from the other elements in both of Applicant’s marks, and because TRUE modifies
HEALTH, we consider the terms TRUE HEALTH together, rather than according
more weight to the word TRUE alone.
With regard to the design elements in Applicant’s marks, although we assess each
mark in its entirety, wording often is considered the dominant feature of a mark
comprising both literal and design elements because it is most likely to indicate the
source of the services. See Jack Wolfskin, 116 USPQ2d at 1134; Viterra, 101 USPQ2d
at 1908. The words are likely to make a greater impression upon purchasers than the
designs and would be remembered by them and used by them to request the services.
See Viterra, 101 USPQ2d at 1908 and 1911 (citing CBS Inc. v. Morrow, 708 F. 2d
1579, 218 USPQ 198, 200 (Fed. Cir 1983)). This general principle applies here, where
the shared design element would not be verbalized, and the four lines to the left of
the word EXPRESS in the mark TRUE HEALTH EXPRESS and design suggest the
speed or urgency with which a patient will receive medical care.
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The prominence of the term TRUE HEALTH is further enhanced by its placement
as the initial literal element of Applicant’s marks. See Palm Bay Imps., 73 USPQ2d
at 1692; Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB
1988) (“[“I]t is often the first part of a mark which is most likely to be impressed in
the mind of a purchaser and remembered”). See also Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers must first notice the identical lead word).
Finally, Registrant’s standard character mark is not limited to any particular
depiction. The rights associated with a standard character mark reside in the wording
and not in any particular display. In re RSI Sys. LLC, 88 USPQ2d 1445, 1448 (TTAB
2008); In re Pollio Dairy Prods. Corp., 8 USPQ2d 2012, 2015 (TTAB 1988); Trademark
Manual of Examining Procedure (“TMEP”) § 1207.01(c)(iii) (Oct. 2017). We must
consider Registrant’s standard character mark “regardless of font style, size, or color”
Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259
(Fed. Cir. 2011), including iterations displaying the mark in the same font as the term
TRUE HEALTH in Applicant’s marks.
Accordingly, we find that TRUE HEALTH is the dominant element in Applicant’s
marks TRUE HEALTH and design and TRUE HEALTH EXPRESS and design.
TRUE HEALTH thus is entitled to more weight in our analysis of these marks. In
making this finding, we do not ignore the presence of the additional wording and/or
designs in Applicant’s marks. However, for the reasons discussed above, consumers
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are more likely to remember the term TRUE HEALTH than the other elements of
Applicant’s marks. Nat’l Data, 224 USPQ at 751.
While there are some specific differences between Applicant’s and Registrant’s
marks, we find that in their entireties, Applicant’s marks TRUE HEALTH and design
and TRUE HEALTH EXPRESS and design, and Registrant’s standard character
mark TRUHEALTH, are very similar in appearance, sound, and connotation due to
the common presence of the virtually identical literal terms TRUE HEALTH and
TRUHEALTH, and that the marks convey similar commercial impressions. The
factor of the similarity of the marks thus favors a finding of likelihood of confusion.
C. Relatedness of the Services and Channels of Trade
With regard to the services and channels of trade, we must make our
determinations under these factors based on the services as they are identified in the
applications and registration. See Dixie Rests., 41 USPQ2d at 1534. See also Stone
Lion, 110 USPQ2d at 1161; Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261,
62 USPQ2d 1001, 1004-05 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Computs.
Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
1. Similarity of Services
The second du Pont factor “considers whether the consuming public may perceive
[the respective goods and services of the parties] as related enough to cause confusion
about the source or origin of the goods and services.” St. Helena Hosp., 113 USPQ2d
at 1086 (quoting Hewlett-Packard, 62 USPQ2d at 1004). “[I]t is not necessary that
the products of the parties be similar or even competitive to support a finding of
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likelihood of confusion.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v.
Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also On-line Careline Inc. v. Am.
Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000) (The products
need not be identical or even competitive to find a likelihood of confusion). Rather,
“likelihood of confusion can be found ‘if the respective products 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 (quoting 7-Eleven, 83 USPQ2d at 1724). The issue is
whether there is a likelihood of confusion as to the source of the services, not whether
purchasers would confuse the services. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434,
1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). We also keep in
mind that the greater the similarity between an applicant’s mark and the cited
registered mark, the lesser the degree of similarity between the applicant’s services
and the registrant’s services that is required to support a finding of likelihood of
confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Applicant’s identified services are “Medical referrals; Retail pharmacy services.”
Registrant’s identified services are “Behavioral health services for the elderly;
psychiatric services for the elderly; comprehensive post-acute rehabilitation services
for the elderly, namely, psychiatric services, behavioral health services, and nursing
care.” As an initial point, Applicant is correct in its observation that there is no per
se rule that all healthcare and medical services are related; rather, we look to the
record to make that determination. In this case, the record supports a finding that
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the services identified in the applications and registration are sufficiently related
that when sold under similar marks, confusion is likely.
The record includes two articles from professional medical journals explaining
that medical referrals are used to transition patients from, for example, a primary
practice or an acute care facility, into a facility that provides subacute or other levels
of care, such as a skilled nursing facility.8 Patients and their family members,
physicians, and others, such as social workers, may initiate medical referrals for
mental and behavioral healthcare services. The medical referral process for mental
and behavioral health issues is designed to ensure that patients have the opportunity
for treatment by a specialist rather than a primary care doctor. Thus, the medical
referral services identified in the applications and the behavioral and mental health
services identified in the registration are inherently complementary in nature.
The Examining Attorney has submitted ample other evidence to show the
relatedness of the services identified in the applications and registration. First, the
Examining Attorney has made of record several use-based, third-party registrations
showing that a single mark has been adopted for some of the services identified in
both the applications and registration. See, for example, Registration Nos. 3108350

8 November 1, 2017 Denial of Request for Reconsideration TSDR pp. 165-178 “What Drives
Referral from Primary Care Physicians to Mental Health Specialists? A Randomized Trial
Using Actors Portraying Depressive Symptoms” by several authors, published in the June
2006 SPRINGER JOURNAL OF GENERAL INTERNAL MEDICINE, accessed November 1, 2017 on
the US National Library of Medicine National Institutes of Health website; and TSDR pp.
179-186 “Mental Health Care Treatment Initiation When Mental Health Services Are
Incorporated Into Primary Care Practice” by Rodger Kessler, PhD, accepted for publication
on March 7, 2011, accessed November 1, 2017 on the JOURNAL OF THE AMERICAN BOARD OF
FAMILY MEDICINE (JABFM) website.
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(LOVELACE for medical referral, retail pharmacy, and nursing services), 2791165
(CRITTENDON HOSPITAL for retail pharmacy, medical referral, psychological
counseling, and physical rehabilitation services), and 4932877 (SOMOS TU HEALTH
NET for doctor referrals and nursing services).9 While third-party registrations are
not evidence that the marks shown therein are in commercial use, or that the public
is familiar with them, such registrations that individually cover a number of different
items and are based on use in commerce may have some probative value to the extent
that they serve to suggest that the listed services are of a type which may emanate
from a single source. See In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB
2015); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988),
and cases cited therein; In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993).
The Examining Attorney also has submitted numerous webpages from third
parties throughout the United States that provide medical referral and/or retail
pharmacy services as well as some or all of the types of services identified in the
registration. For example:
• ProHealth Care in Waukesha, Wisconsin offers physician referral, pharmacy,
and behavioral health services, including geropsychiatry for the elderly;10

9 Id., TSDR pp. 47-51 and 65-68.
10 Id., TSDR pp. 34-39.
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• Memorial Hermann in Houston, Texas provides physician referral, retail
pharmacy, and rehabilitation and physical therapy services;11
• Lifespan Health in Tennessee provides medical referral services and
behavioral health “Every Age Solutions”;12 and
• UPMC in Pittsburgh, Pennsylvania provides retail pharmacy services, post-
acute rehabilitation, behavioral health referrals, and behavioral health
services.13
This evidence supports a finding that the respective services are related and will
be encountered by the same consumers under the same mark. See, e.g., In re Davey
Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1268-69 (TTAB 2009).
Applicant argues that there is no likelihood of confusion because the services
identified in the registration are restricted to the elderly. This argument is
unpersuasive, however, because the identification of services in the applications
contains no restrictions. Absent restrictions in the applications, there is nothing to
prevent Applicant from providing “medical referrals” and “retail pharmacy services”
under its applied-for marks to all members of the population, including the elderly.
See, e.g., Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107

11 Id., TSDR 40-46.
12 Id., TSDR 69-78.
13 Id., TSDR 156-162.
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USPQ2d 1167, 1173 (Fed. Cir. 2013) (identification without restrictions is presumed
to encompass all services of the type described).
Accordingly, we find the medical referral and retail pharmacy services identified
in the applications related to the services identified in the cited registration.
2. Channels of Trade
The identification of services in the applications has no trade channel or consumer
class limitations. Thus, the services are presumed to move in all channels of trade
usual for such services (such as hospitals and medical centers), and they are
presumed to be available to all potential classes of ordinary consumers, including the
elderly. Stone Lion, 110 USPQ2d at 1161. See also Coach Servs., 101 USPQ2d at 1723
(absent limitation, “goods are presumed to travel in all normal channels … for the
relevant goods.”). Moreover, the restriction in the cited registration pertains to the
receiver of the identified services, namely, the elderly; it does not necessarily pertain
to the purchasers of those services for the elderly, who would include ordinary
consumers like friends and family members of the elderly.14 See Cunningham, 55
USPQ2d at 1846 (affirming Board finding that where the identification is
unrestricted, “we must deem the goods to travel in all appropriate trade channels to
all potential purchasers of such goods”); In re Elbaum, 211 USPQ 639, 640 (TTAB
1981). The relatedness evidence from the commercial websites listed above confirms
that medical referral and retail pharmacy services and the services identified in the

14 We discuss below Applicant’s assertions concerning the purported sophistication of the
purchasers of Applicant’s and Registrant’s identified services.
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cited registration travel in the same channels of trade and are offered to the same
classes of consumer, including ordinary members of the public. See Anderson, 101
USPQ at 1920.
The similarities of the services and their channels of trade weigh heavily in favor
of a finding of likelihood of confusion.
D. Purchasing Conditions
With regard to the conditions of sale, Applicant argues, without evidentiary
support, that the relevant consumers of both Applicant’s and Registrant’s identified
services will exercise great care before purchasing either of the parties’ services:
Finding medical and health-related services that that [sic]
meet all of the criteria that the consumer is looking for, i.e.
specific type of services, location of the offices, hours of
service and, probably the biggest factor in choosing health-
related services in today’s world, whether their health
insurance is accepted, requires a great deal of careful
research and study before any decision as to whether to use
one particular medical service provider over another is
reached. In the way that today’s healthcare system is set
up, often a consumer may not even be eligible to use the
services of a particular provider because that provider is
not a participant in the consumers health insurance
coverage plan, so understanding the source of the services
sought is a major determining factor in that choice.15
Despite the lack of evidence regarding the purchasing processes in which
consumers of Applicant’s and Registrant’s services engage, we recognize that some of
the services identified in the application and registration most likely would involve a
certain level of purchasing care. On the other hand, the record does not support a

15 App. Br., 19 TTABVUE 11.
Serial Nos. 87055363 and 87055475
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finding that the conditions of sale would outweigh the other du Pont factors. As the
Examining Attorney correctly observed, even sophisticated purchasers are not
necessarily immune from source confusion. Imagineering Inc. v. Van Klassens Inc.,
53 F.3d 1260, 34 USPQ2d 1526, 1530 (Fed. Cir. 1995) (“[T]he record shows that the
buyers of Imagineering’s and Van Klassens’ furniture are sophisticated. While a
sophisticated purchaser might more easily discern distinctions between Van
Klassens’ and Imagineering’s furniture, the record in this case shows that even a
trained furniture salesman could not distinguish the two products.”); HRL Assoc.,
Inc. v. Weiss Assoc., Inc., 12 USPQ2d 1819 (TTAB 1989), aff’d, 902 F.2d 1546, 14
USPQ2d 1840, 1841-42 (Fed. Cir. 1990) (similarities of goods and marks outweigh
sophisticated purchasers, careful purchasing decision, and expensive goods).
II. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, as they pertain to the relevant du Pont factors. To
the extent that any other du Pont factors not discussed by Applicant may nonetheless
be applicable, we treat them as neutral. We conclude that Applicant’s marks TRUE
HEALTH and design and TRUE HEALTH EXPRESS and design
are very similar to the cited mark TRUHEALTH, and that the
services identified in the applications and registration are complementary and
Serial Nos. 87055363 and 87055475
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otherwise commercially related, and they move through the same channels of trade
to the same class of purchasers. We further find that the purchasing conditions do
not outweigh these factors. We therefore find that Applicant’s marks are likely to
cause confusion with the cited mark when used in connection with the services
identified in the application.
Decision: The Section 2(d) refusal to register each of Applicant’s marks is
affirmed.