Dryoutpro Plus, Inc.Download PDFTrademark Trial and Appeal BoardNov 5, 2015No. 86134009 (T.T.A.B. Nov. 5, 2015) Copy Citation 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. _____ Serial No. 86134009 _____ 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 DISASTER RESTORATION SERVICE and design, shown below, for Carpet cleaning; cleaning of commercial premises; cleaning of residential houses; grout recoloring services; restoration services in the field of water, smoke and fire damage; upholstery repair, in Class 37; and Serial No. 86134009 - 2 - Mold Remediation services, in Class 40.1 Applicant describes the mark as follows: The mark consists of a hurricane with a water drop inside center, a mold spore, and a flame. To the right of the hurricane is the stylized text "DRYOUTpro PLUS" with "PLUS" inside a plus sign. Below the aforementioned text are the stylized words "DISASTER RESTORATION SERVICE". Applicant disclaims the exclusive right to use the term “Disaster Restoration Service.” 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 1 Application Serial No. 86134009 was filed on December 3, 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. 86134009 - 3 - After the Examining Attorney made the refusal final, Applicant appealed to this Board. We affirm the refusal to register. Our determination under Section 2(d) is based on an analysis of all of the probative facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). 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 Nevertheless, Applicant argues that while Registrant’s services “are limited in scope to remediation of water damage,” “Applicant’s services are not so limited” because “Applicant provides services in response to a variety of disaster scenarios.”4 In this regard, we note that Applicant’s “restoration services in the field of water, smoke and fire damage” and Registrant’s “water removal and 3 5 TTABVUE 13. 4 Id. Serial No. 86134009 - 4 - dehumidification services for commercial and residential properties” are in part legally identical because restoration services in the field of water damage encompass water removal. Under this du Pont factor, the Trademark Examining Attorney need not prove, and we need not find, similarity as to each and every activity listed in the description of services. It is sufficient for a refusal based on likelihood of confusion that relatedness is established for any activity encompassed by the description of services in a particular class in the application. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); General Mills Inc. v. Fage Dairy Processing Industry SA, 100 USPQ2d 1584, 1588 n.1 (TTAB 2011), judgment set aside on other grounds, 2014 WL 343267 (TTAB Jan. 22, 2014); Apple Computer v. TVNET.Net, Inc., 90 USPQ2d 1393, 1397 (TTAB 2007). With respect to Applicant’s “mold remediation services,” the Examining Attorney has submitted 10 use-based, third-party registrations for mold remediation services and activities approximating “restoration services in the field of water, smoke and fire damage.” 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. Serial No. 86134009 - 5 - 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. 86134009 - 6 - 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 DISASTER RESTORATION SPECIALISTS WATER FIRE MOLD 3757177 Commercial and residential buildings restoration in the field of water, fire, smoke and mold damage repair COACH’S CATASTROPHE CLEANING & RESTORATION SERVICES 4006066 Restoration services in the field of water, smoke and fire damage; Mold remediation services PEERLESS RESTORATION SERVICES 4446440 Restoration in the field of water, smoke and fire damage; Mold remediation In addition, the Trademark Examining Attorney submitted an excerpt from Disaster Restoration Services (drscleanup.com), a company that advertises, inter alia, water damage clean up, dehumidification, and mold remediation.5 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 5 Although the excerpt from the National Catastrophe Restoration, Inc. website (ncricat.com) advertises that company as a “total disaster restoration company, it does not expressly reference mold remediation. Serial No. 86134009 - 7 - Applicant’s “restoration services in the field of water, smoke and fire damage” 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” and compared them to the channels of trade for Registrant’s “water removal and dehumidification 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.”6 Jacquelyn Howard, identified in the application as Applicant’s Vice President, attested to the fact that Applicant markets “exclusively to homeowners and 6 Applicant’s August 18, 2014 Response. Serial No. 86134009 - 8 - business owners who have a sustained need for disaster restoration services.”7 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, including website, in person, internet searches, social media, newsletters, direct mail and at tradeshows.8 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). 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 “restoration services in the field of water, smoke and fire damage.” We also find that 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” are sold to the same classes of consumers. C. The similarity or dissimilarity of the marks. 7 Affidavit of Jacquelyn Howard, submitted with Applicant’s August 18, 2014 Response 8 See affidavit of Jacquelyn Howard. Serial No. 86134009 - 9 - 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 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). The mark in the cited registration is and Applicant’s mark is DRYOUTpro PLUS DISASTER RESTORATION SERVICE, shown below. Serial No. 86134009 - 10 - The marks are similar because they both include the term DRYOUT. While there are differences in the marks, those differences do not distinguish the marks. Even though Applicant’s mark includes a design element, consumers are likely to focus on the word portion of the mark, DRYOUTpro PLUS, because that is the portion of the mark by which they will request Applicant’s services. In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F. 2d 1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)); Joel Gott Wines, LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)). Nor does the phrase DISASTER RESTORATION SERVICE distinguish the marks because this disclaimed phrase is descriptive. It is well-settled that disclaimed, descriptive matter may have less significance in likelihood of confusion determinations. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). Serial No. 86134009 - 11 - Registrant’s mark DRYOUT and the dominant word portion of Applicant’s mark, DRYOUTpro PLUS, have similar meanings and engender similar commercial impressions.9 When used in connection with water removal and dehumidification services, mold remediation services, and “restoration services in the field of water, smoke and fire damage,” 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 terms “pro PLUS,” “Disaster Restoration Service,” and the design element to Applicant’s mark does not alter that meaning or commercial impression. 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.”10 The word “plus” is defined, inter alia, as “possessing a specified quality to a high degree.”11 Thus, the meaning and commercial impression engendered by Applicant’s mark DRYOUTpro PLUS is 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 9 There is nothing improper in stating that, for rational reasons, more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on a consideration of the marks in their entireties. In re National Data Corp., 224 USPQ at 751. 10 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). 11 Id. Serial No. 86134009 - 12 - 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 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) Serial No. 86134009 - 13 - (“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.”12 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 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 terms “pro PLUS,” “Disaster Restoration Service,” and the design elements are sufficient to distinguish the marks.13 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 meanings and engender the same commercial impression, and the additional elements in Applicant’s mark do not serve to distinguish it from Registrant’s mark. In fact, the purportedly distinguishing term “pro PLUS” added 12 5 TTABVUE 12-13 (citations omitted). 13 5 TTABVUE 12-13. Serial No. 86134009 - 14 - 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 homeowners or owners of commercial property seeking to protect their investments.”14 The purchasers of services include residential homeowners responding to water damage who may be making their purchasing decision under stress. While commercial real estate owners and 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 DISASTER RESTORATION SERVICE and design is merely a variation of the mark DRY OUT, and that the services emanate from a single source. In view of the foregoing, we find that no higher standard of care is applicable and that this du Pont factor is neutral. 14 5 TTABVUE 15. Serial No. 86134009 - 15 - 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 DISASTER RESTORATION SERVICE and design for “carpet cleaning; cleaning of commercial premises; cleaning of residential houses; grout recoloring services; restoration services in the field of water, smoke and fire damage; upholstery repair” and “mold remediation 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.” Decision: The refusal to register Applicant’s mark DRYOUTpro PLUS DISASTER RESTORATION SERVICE and design is affirmed. Copy with citationCopy as parenthetical citation