Central Florida Family Health Center, Inc. DBA True Health

Trademark Trial and Appeal Board

Jun 6, 2018

No. 87055437 (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. 87055437
Serial No. 87055511
_____

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
Serial Nos. 87055437 and 87055511
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2. TRUE HEALTH EXPRESS and design

both for
Dentistry services; Health care; Medical clinic services;
Medical screening; Medical services; Physician services;
Providing a web site featuring medical information in
International Class 44.1
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

1 Application Serial Nos. 87055437 and 87055511, 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.
Serial Nos. 87055437 and 87055511
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services, behavioral health services, and nursing care” in International Class 44 as
to be likely to cause confusion, mistake or deception.2
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

2 Registration No. 4629068 issued on October 28, 2014.
3 Unless otherwise noted, all references to TTABVUE are to the appeal in Application Serial
No. 87055437 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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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.”). 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. 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 In re Dixie Rests., 105 F.3d 1405, 41 USPQ2d 1531,
1534 (Fed. Cir. 1997). See also Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); 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).
In this case, the broadly worded “health care” and “medical services” identified in
the applications encompass, and therefore are legally identical to, the “behavioral
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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” identified in the registration. The
Examining Attorney also submitted Internet website evidence demonstrating that
third parties provide some of the specific services identified in the registration as well
as general medical and health care services under the same marks.4 However, in view
of the overlap and legal identity of the services listed immediately above, there is no
need for us to discuss this additional evidence. See Tuxedo Monopoly, Inc. v. Gen.
Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of
confusion must be found if there is likely to be confusion with respect to any item that
comes within the identification of goods or services in the application).
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 “health care services” and “medical services” under
its applied-for marks to all members of the population, including the elderly. See Levi
Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d 1367, 107 USPQ2d 1167,

4 October 30, 2017 Denial of Request for Reconsideration, e.g., TSDR 14-17 (ProHealth Care
medical services and geropsychiatry), TSDR 68-70 (WCCHS Wyoming County Community
Health System orthopedic surgeon and orthopedic clinic services and skilled nursing services
including a memory unit for Alzheimer’s and dementia patients), and TSDR 127-129 (Summit
Medical Group geriatric services including nursing care and physical therapists, and various
medical and physician services).
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1173 (Fed. Cir. 2013) (identification without restrictions is presumed to encompass
all services of the type described).
Given the legal identity of the services in part, and the lack of restrictions in the
applications, we presume that the services travel through the same channels of trade
(e.g., medical centers) and that they are offered to the same potential purchasers (e.g.,
ordinary consumers). See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (legally identical goods are presumed to travel in same channels of
trade to same class of purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159
USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the channels of
trade and classes of purchasers are considered to be the same).
The similarities of the services and their channels of trade are factors that weigh
heavily in favor of a finding of likelihood of confusion.
B. Number and Nature of Similar Marks in Use in Connection With
Similar Services
Applicant argues 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.5 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

5 App. Br., 16 TTABVUE 7-8.
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GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d
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.”6
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.

6 Reg. Nos. 5014476, 4719126, and 5107816, respectively.
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C. 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.” Viterra, 101 USPQ2d at 1908
(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 but is a matter of degree.” St. Helena Hosp., 113
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USPQ2d at 1085 (quoting In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059,
1062 (Fed. Cir. 2003)). We also are mindful that “[w]hen marks would appear on
virtually identical goods or services, the degree of similarity necessary to support a
conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life
of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Shen Mfg. Co. v. The
Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d 1350, 1354 (Fed. Cir. 2004) (where goods
and services are highly related, “the degree of similarity necessary to support a
conclusion of likely confusion declines.”) (quoting Century 21 Real Estate Corp., 23
USPQ2d at 1700).
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.”7 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

7 (Serial No. 87055511) App. Br., 16 TTABVUE 6.
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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
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, 110 USPQ2d at 1161 (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) (“[T]he 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
Serial Nos. 87055437 and 87055511
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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
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)8 is not sufficient to distinguish Applicant’s mark from

8 (Serial No. 87055511) App. Br., 16 TTABVUE 6, Ex. Atty. Br., 18 TTABVUE 9.
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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);
Dixie Rests., 41 USPQ2d at 1533-34. 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 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 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
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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.
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., 23
USPQ2d at 1700 (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
Serial Nos. 87055437 and 87055511
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(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 most 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 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.
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 meet all
of the criteria that that [sic] 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-
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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.9
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
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).

9 App. Br., 16 TTABVUE 11.
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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 legally identical, in part,
and move through the same channels of trade. 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 on or in connection with
the services identified in the application.
Decision: The Section 2(d) refusal to register each of Applicant’s marks is
affirmed.