Dryoutpro Plus, Inc.

Trademark Trial and Appeal Board

Nov 5, 2015

No. 86126104 (T.T.A.B. Nov. 5, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 5, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Dryoutpro Plus, Inc.
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Serial No. 86126104
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Matthew H. Swyers of The Trademark Company,
for Dryoutpro Plus, Inc.
Meghan Reinhart, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Seeherman, Bergsman and Heasley,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:
Dryoutpro Plus, Inc. (“Applicant”) seeks registration on the Principal Register of
the mark DRYOUTpro PLUS (in standard characters) for
Residential and commercial cleaning services featuring:
disaster restoration cleaning services, water damage
restoration cleaning services, fire and smoke damage
restoration cleaning services, carpet and upholstery
cleaning, tile and grout cleaning, and area rug cleaning,
in Class 37; and
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Mold Remediation services featured in connection with
residential and commercial cleaning services, in Class
40.1
The Trademark Examining Attorney has refused registration of Applicant’s
mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C. § 1052(d), on the
ground that Applicant’s mark so resembles the registered mark DRYOUT (stylized),
shown below, for “water removal and dehumidification services for commercial and
residential properties that have suffered from water damage,” in Class 37, that, if
used in connection with Applicant’s identified services, it is likely to cause
confusion.2

After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d
1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between the marks and the

1 Application Serial No. 86126104 was filed on November 21, 2013 based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act.
2 Registration No. 2222721, issued February 9, 1999; renewed.
Serial No. 86126104
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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.”).
A. The similarity or dissimilarity and nature of the services.
Applicant does not contest that the services are related.
“Applicant must concede the similarity of the goods or
services as recited in the Applicant’s applied-for
trademark as well as the registered trademark.”3
In this regard, we note that Applicant’s “water damage restoration cleaning
services” and Registrant’s “water removal and dehumidification services for
commercial and residential properties” are in part legally identical because water
damage restoration cleaning services encompass water removal.
With respect to Applicant’s “mold remediation services,” the Examining Attorney
has submitted seven use-based, third-party registrations for mold remediation
services and activities approximating “water removal and dehumidification
services.” Third-party registrations based on use in commerce that individually
cover a number of different services have probative value to the extent that they
serve to suggest that the listed services are of a type that may emanate from the
same source. See In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786; In re
Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The
registrations, with relevant portions of the identifications, are listed below.

3 5 TTABVUE 13.
Serial No. 86126104
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Mark Reg. No. Services

DRYINGSOLUTIONS
INCORPORATED
3328633 Mold remediation services;

Drying and dehumidification services for
structures, building contents, and
manufacturing plants

QUICK-DRY 3777697 Mold remediation services;

Commercial water damage repair services,
water removal from buildings,
dehumidification and structural drying,
sewage flooding mitigation and carpet
cleaning

DISASTER ONE
RESTORING YOUR
FUTURE
2937861 Water removal, cleaning, drying,
deodorizing, and decontamination of
dwellings and their contents damaged by
water, fire, smoke

DELIVERING
SOLUTIONS
2951507 Restoration in the field of fire and water
damage recovery, dehumidification;

Environmental remediation services,
namely, mold removal

COCAT 3048968 Mold remediation services;

Water and sewage extractions, structural
drying and dehumidification, smoke and
odor removal,

RESTORE-ONE 3258001 Mold remediation services;

Cleaning, water removal, and drying of
residential and commercial property and
other structures as a result of damage from
fire, smoke, flood and other disasters

Serial No. 86126104
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Mark Reg. No. Services

POLYGON 4143569 Remediation services for buildings
damaged by water, moisture, mold and fire,
removal of standing water, drying of
building structures and contents; fire
damage restoration

In view of the foregoing, we find that Applicant’s services, in both classes, are
related to the services in the cited registration.
B. Established, likely-to-continue channels of trade.
As noted in the previous section, Registrant’s “water removal and
dehumidification services for commercial and residential properties” and
Applicant’s “water damage restoration cleaning services” are in part legally
identical. Because those services are in part legally identical, we must presume that
the channels of trade and classes of purchasers are the same. 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); United Global Media Grp., Inc. v. Tseng, 112 USPQ2d
1039, 1049 (TTAB 2014); American Lebanese Syrian Associated Charities Inc. v.
Child Health Research Institute, 101 USPQ2d 1022, 1028 (TTAB 2011).
Neither the Trademark Examining Attorney, nor Applicant, specifically
addressed the channels of trade for “mold remediation services” or compared them
to the channels of trade for Registrant’s “water removal and dehumidification
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services for commercial and residential properties that have suffered from water
damage.” However, Registrant’s “water removal and dehumidification services,” as
identified, are for “commercial and residential properties that have suffered from
water damage.” Applicant asserts that its services are marketed to persons “to
immediately clean and repair damage done by water, fire, smoke and/or mold.”4
Jacquelyn Howard, identified in the original application papers as Applicant’s Vice
President, attested to the fact that Applicant markets “exclusively to homeowners
and business owners who have a sustained need for disaster restoration services.”5
Thus, Applicant and Registrant both market their services to residential
(homeowner) and commercial (business) properties that have sustained water
damage (i.e., the same classes of consumers). Moreover, both Applicant and
Registrant are presumed to market their services through the same channels of
trade because Registrant’s description of services is not limited to any specific
channels of trade and, therefore, it includes all channels of trade normal for the
services; such channels would include the internet, in-person, social media,
newsletters, direct mail and tradeshow channels employed by Applicant.6 See Paula
Payne Products Co. v. Johnson Publishing Co., 473 F.2d 901, 177 USPQ 76, 77
(CCPA 1973); Kalart Co. v. Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139, 140
(CCPA 1958); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992).

4 Applicant’s August 18, 2014 Response.
5 Affidavit of Jacquelyn Howard, submitted with Applicant’s August 18, 2014 Response..
6 See affidavit of Jacquelyn Howard.
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In view of the foregoing, there is a presumption that Registrant’s “water removal
and dehumidification services for commercial and residential properties” move in
the same channels of trade as Applicant’s “water damage restoration cleaning
services.” We also find, based on the related nature of the services, Applicant’s mold
remediation services and Registrant’s “water removal and dehumidification services
for commercial and residential properties that have suffered from water damage”
would be offered to the same classes of consumers.
C. The similarity or dissimilarity of the marks.
We now turn to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont De Nemours & Co., 476
F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). In a particular case, “two marks may
be found to be confusingly similar if there are sufficient similarities in terms of
sound or visual appearance or connotation.” Kabushiki Kaisha Hattori Seiko v.
Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB 1991), aff’d mem., 979 F.2d 216
(Fed. Cir. 1992) (citation omitted). See also Eveready Battery Co. v. Green Planet
Inc., 91 USPQ2d 1511, 1519 (TTAB 2009) (citing Krim-Ko Corp. v. 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.”)).
“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
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between the parties.” Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See also San Fernando Electric Mfg. Co. v.
JFD Electronics Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977);
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
mem., 972 F.2d 1353 (Fed. Cir. 1992).
Applicant’s mark is DRYOUTpro PLUS and the mark in the cited registration is
. Because Applicant’s mark is in standard character form, Applicant could
present its mark in a similar style to the registered mark. Marks presented in
standard characters are not limited to any particular depiction. The rights
associated with a mark in standard characters reside in the wording, and not in any
particular display. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909-11
(Fed. Cir. 2012); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed.
Cir. 1983); In re RSI Systems, LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re
Pollio Dairy Products Corp., 8 USPQ2d 2012, 2015 (TTAB 1988).
The marks DRYOUT and DRYOUTpro PLUS have similar meanings and
engender similar commercial impressions. When used in connection with “water
damage restoration cleaning services,” “mold remediation services,” and “water
removal and dehumidification services,” the term “Dryout” is a compressed version
of the words “dry” and “out” and it means and engenders the commercial impression
of being free of moisture, not being wet, or no longer damp. The addition of the term
“pro PLUS” to Applicant’s mark does not alter that meaning or commercial
impression.
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The term “pro” is an abbreviation of the word “professional” which is defined,
inter alia, as “done or given by a person who works in a particular profession.”7 The
word “plus” is defined, inter alia, as “possessing a specified quality to a high
degree.”8 Thus, the meaning and commercial impression engendered by Applicant’s
mark DRYOUTpro PLUS is that the result of using the services is that there will be
a high level or quality of water removal performed by someone who is experienced
in doing so.
Also, Applicant’s mark incorporates the entirety of Registrant’s mark and,
because of the meaning of “pro PLUS,” as discussed above, the additional term “pro
PLUS” will be seen as indicating a higher quality option of Registrant’s services.
That is, instead of distinguishing Applicant’s mark from Registrant’s, it will be seen
as a variation of Registrant’s mark DRYOUT, and identifying the services as
emanating from the same source. See The Wella Corp, v. California Concept Corp.,
558 F.2d 1019, 194 USPQ 419, 422 (CCPA 1977) (CALIFORNIA CONCEPT and
surfer design for men’s cologne, hair spray, conditioner and shampoo is likely to
cause confusion with the mark CONCEPT for cold permanent wave lotion and
neutralizer); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009)
(applicant’s mark VANTAGE TITAN for medical magnetic resonance imaging
diagnostic apparatus confusingly similar to TITAN for medical ultrasound

7 MERRIAM-WEBSTER ONLINE DICTIONARY (merriam-webster.com). The Board may take
judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food
Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983),
including online dictionaries that exist in printed format or have regular fixed editions. In
re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
8 Id.
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diagnostic apparatus); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB
1988) (applicant’s mark MACHO COMBOS for food items confusingly similar to
MACHO for restaurant entrees).
Moreover, consumers are likely to focus on the first part of Applicant’s mark, the
term DRYOUT. See Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Fondee En
1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (“Veuve” is the most
prominent part of the mark VEUVE CLICQUOT because “veuve” is the first word
in the mark and the first word to appear on the label); Century 21 Real Estate Corp.
v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992)
(upon encountering the marks, consumers will first notice the identical lead word);
Presto Products Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895, 1897 (TTAB 1988)
(“it is often the first part of a mark which is most likely to be impressed upon the
mind of a purchaser and remembered”).
Applicant argues that where the common term has been found generic,
descriptive or highly suggestive of the goods or services at issue, “it is unlikely that
consumers will be confused unless the overall combinations have other
commonality.”9 Any argument to the effect that the term DRYOUT is generic or
merely descriptive would be an impermissible collateral attack on the cited
registration. Although the term DRYOUT, because of the plain meaning of the
words “dry out,” must be considered suggestive, there is no evidence, such as third-
party registrations or third-party use of marks consisting, in whole or in part, of the

9 5 TTABVUE 12-13 (citations omitted).
Serial No. 86126104
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term DRYOUT or DRY OUT, that the cited mark is highly suggestive. Applicant
also argues that DRYOUT is a weak term that is entitled to only a narrow scope of
protection or exclusivity of use and that the addition of the term “pro PLUS” is
sufficient to distinguish the marks.10 However, it is well settled that the likelihood
of confusion “is to be avoided as much between ‘weak’ marks as between ‘strong’
marks.” See King Candy Company v. Eunice King's Kitchen, Inc., 496 USPQ 1400,
182 USPQ 108, 109 (CCPA, 1974). As discussed above, the marks DRYOUT and
DRYOUTpro PLUS have the same meaning and engender the same commercial
impression. In fact, the purportedly distinguishing term “pro PLUS” added to
Registrant’s mark DRYOUT engenders the commercial impression that Applicant’s
mark identifies an enhanced level of Registrant’s services.
In view of the foregoing, we find that the marks are similar in terms of
appearance, sound, connotation and commercial impression.
D. The degree of consumer care, sophistication of purchasers, and circumstances
of sale.
Applicant contends that “consumers of these goods [sic] are sophisticated insofar
as they are owners of commercial or residential properties and therefore have
experience investigating the best ways to protect their investments and have
participated in multi-step legal [sic] processes.”11 The purchasers of the services
include residential homeowners responding to water damage who may be making
their purchasing decision under stress. While commercial real estate owners and

10 5 TTABVUE 12-13.
11 5 TTABVUE 14.
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property managers might be considered experienced hands in dealing with water
damage issues and, therefore, careful consumers, individual residential owners are
ordinary purchasers of diverse backgrounds and levels of expertise. See Humana,
Inc. v. Humanomics, Inc., 3 USPQ2d 1696, 1699 (TTAB 1997). Moreover, the marks
are so similar that, as discussed above, even knowledgeable and careful consumers
are likely to assume that DRYOUTpro PLUS is merely a variation of the mark
DRYOUT, and that the services emanate from a single source. In view of the
foregoing, we find that this du Pont factor is neutral.
E. Balancing the factors.
Because the marks are similar, the services are in part legally identical and in
part related, and the legally identical services are presumed to move in the same
channels of trade and the services otherwise would be purchased by some of the
same classes of consumers, we find that Applicant’s mark DRYOUTpro PLUS for
“residential and commercial cleaning services featuring: disaster restoration
cleaning services, water damage restoration cleaning services, fire and smoke
damage restoration cleaning services, carpet and upholstery cleaning, tile and grout
cleaning, and area rug cleaning” and “mold Remediation services featured in
connection with residential and commercial cleaning services” is likely to cause
confusion with Registrant’s mark for “water removal and dehumidification
services for commercial and residential properties that have suffered from water
damage.”
Serial No. 86126104
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Decision: The refusal to register Applicant’s mark DRYOUTpro PLUS is
affirmed.