Eliza Jennings Group

Trademark Trial and Appeal Board

Dec 21, 2018

EX (T.T.A.B. Dec. 21, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 21, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Eliza Jennings Group
_____

Serial No. 86801997
_____

David R. Posteraro and Jennifer M. Hart of Kohrman Jackson & Krantz LLP,
for Eliza Jennings Group.
Susan A. Richards, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
_____

Before Cataldo, Shaw and Greenbaum,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Eliza Jennings Group (“Applicant”) seeks registration on the Principal Register of
the mark RENAISSANCE (in standard characters) for
Providing assisted living facilities in International Class
43, and
Nursing homes in International Class 44.1

1 Application Serial No. 86801997 was filed on October 28, 2015, based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as May 17, 1985 for both
classes of services.
Serial No. 86801997
- 2 -

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 applied to Applicant’s services, so resembles the following
two registered marks, owned by one registrant, as to be likely to cause confusion,
mistake or deception:
1. R RENAISSANCE HOME HEALTH CARE (HOME HEALTH CARE
disclaimed), displayed as , for
referral agency for home care services, health aid services
and nursing services for senior citizens in International
Class 35, and
providing home health care services in International Class
44,2 and
2. R RENAISSANCE ADULT DAY SERVICES (ADULT DAY SERVICES
disclaimed), displayed as , for
supplying meals to senior persons; providing daily living
facilities for senior citizens, namely, providing day-care
centers for senior citizens in International Class 43,

2 Registration No. 4461705 issued on January 7, 2014. The mark is described as “consist[ing]
of the letter ‘R’ centered on the top, the word ‘RENAISSANCE’ underlined and centered below
the ‘R,’ and the words ‘HOME HEALTH CARE’ centered below the word ‘RENAISSANCE.”
Color is not claimed as a feature of the mark.
Serial No. 86801997
- 3 -

geriatric health care services; nursing care for senior
persons; nursing services in the field of geriatrics in
International Class 44, and
providing non-medical assisted living services for personal
purposes in the nature of scheduling appointments,
answering the telephone, checking messages, mail sorting,
mail handling, mail receiving and secretarial and clerical
services; personal care assistance of activities of daily
living, such as bathing, grooming and personal mobility for
senior citizens; providing daily living facilities and living
services for senior citizens, namely, respite care services in
the nature of adult day care in International Class 45.3
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. We affirm the refusal to register in each class.
I. Applicable Law
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 (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. In re Chatam Int’l Inc., 380 F.3d 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 the goods [or

3 Registration No. 5062133 issued on October 18, 2016. The mark is described as “consist[ing]
of the wording ‘RENAISSANCE ADULT DAY SERVICES’ with a horizontal bar or line
separating the word ‘RENAISSANCE’ from the wording ‘ADULT DAY SERVICES’ and a
stylized design of the letter ‘R’ containing a stylized design of leaves.” Color is not claimed as
a feature of the mark.
Serial No. 86801997
- 4 -

services] and differences in the marks.”); 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 [or
services]’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d
1375, 1380 (Fed. Cir. 2002)). We have considered each du Pont factor that is relevant
or for which there is evidence of record. 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).
A. The similarity or dissimilarity of the marks
Under this du Pont factor, we compare the marks in their entireties for
similarities and dissimilarities in appearance, sound, connotation and commercial
impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014). “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).
The 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
Serial No. 86801997
- 5 -

normally retains a general rather than a specific impression of trademarks. See St.
Helena Hosp., 113 USPQ2d at 1085; Geigy Chem. Corp. v. Atlas Chem. Indus., Inc.,
438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971).
Our analysis cannot be predicated on dissection of the involved marks. Stone Lion,
110 USPQ2d at 1161. Rather, we are obliged to consider the marks in their entireties.
Id.; 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.”). Nonetheless, 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. For instance, as the Federal Circuit has observed, “[t]hat
a particular feature is descriptive or generic with respect to the involved goods or
services is one commonly accepted rationale for giving less weight to a portion of a
mark ….” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
When considered in their entireties, we find Applicant’s standard character mark
RENAISSANCE mark and Registrant’s marks and
to be very similar in appearance, sound, connotation and
commercial impression, due to the shared term RENAISSANCE. Registrant’s mark
Serial No. 86801997
- 6 -

incorporates the entirety of Applicant’s mark, and Registrant’s mark also includes
the terms HOME HEALTH CARE and ADULT DAY SERVICES and a stylized letter
R. While there is no rule that a likelihood of confusion is present where one mark
encompasses another, in this case, as in many others, the fact that Registrant’s marks
include the entirety of Applicant’s RENAISSANCE mark increases the similarity
between them. See, e.g., In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260
(Fed. Cir. 2010) (finding applicant mark ML similar to registrant’s mark ML MARK
LEES).
There is no evidence that RENAISSANCE has any meaning or significance when
applied to the identified services, and there is no evidence of use by third parties of
similar marks on similar services that might dilute the source-identifying capacity of
RENAISSANCE for those services. On the other hand, HOME HEALTH CARE and
ADULT DAY SERVICES are at least highly descriptive, if not generic, of the services
identified in the corresponding registration, and appropriately have been disclaimed
in each instance. See In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-
34 (Fed. Cir. 1997). Descriptive matter typically is less significant or less dominant
when comparing marks. See Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846
(quoting Nat’l Data Corp., 224 USPQ at 752 (the “descriptive component of a mark
may be given little weight in reaching a conclusion on likelihood of confusion”)). We
find that to be the case here, where consumers likely will view the terms “home health
care” and “adult day services” in Registrant’s marks in their descriptive or generic
sense, rather than as a source-distinguishing element.
Serial No. 86801997
- 7 -

RENAISSANCE is the central and most visually prominent element in each of
Registrant’s marks, and it is the element that is most likely to catch consumers’ eyes.
RENAISSANCE also has more source identifying capability than the stylized letter
R, which would be viewed merely as a decorative element representing the first letter
of the word RENAISSANCE and would not be verbalized by consumers when calling
for the services. The significance of the term RENAISSANCE is further enhanced by
its location as the initial literal element in each of Registrant’s marks. See Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison 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).
Accordingly, we find that RENAISSANCE is the dominant element in each of
Registrant’s marks, and accord that term more weight than the other elements of
Registrant’s marks in our likelihood of confusion analysis. In making this finding, we
do not ignore the presence of the additional wording or stylization in Registrant’s
marks. However, for the reasons discussed above, consumers are more likely to
remember the term RENAISSANCE than the other elements of Registrant’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, the marks are very similar in appearance,
sound, and connotation due to the common presence of the identical literal term
RENAISSANCE, and that the marks convey similar commercial impressions. The du
Serial No. 86801997
- 8 -

Pont factor of the similarity of the marks thus favors a finding of likelihood of
confusion.
B. 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
application and the cited registrations. 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 (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 services of the parties] as related enough to cause confusion about the
source or origin of the … services.” St. Helena Hosp., 113 USPQ2d at 1086 (quoting
Hewlett-Packard, 62 USPQ2d at 1004). The services identified in the application are
“providing assisted living facilities” and “providing nursing homes,” while the
services identified in the registrations all involve care for the elderly or infirm,
including “providing home health care services” under the mark R RENAISSANCE
HOME HEALTH CARE, and “providing day-care centers for senior citizens,”
“nursing care for senior persons,” and “personal care assistance of activities of daily
living, such as bathing, grooming, and personal mobility for senior citizens” under
the mark R RENAISSANCE ADULT DAY SERVICES.
Serial No. 86801997
- 9 -

Although the services identified in the application are not identical to the services
identified in the registrations, identity is not required to support a finding of
likelihood of confusion. Coach Servs., 101 USPQ2d at 1722 (“[I]t is not necessary that
the [services] of the parties be similar or even competitive to support a finding of
likelihood of confusion.”) (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 services need not be identical or even
competitive to find a likelihood of confusion). Rather, “likelihood of confusion can be
found ‘if the respective products [or services] are related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source.”’ Coach Servs., 101 USPQ2d
at 1722 (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). In addition, under this du Pont factor,
the Examining Attorney need not prove, and we need not find, similarity as to each
and every product listed in the description of services. It is sufficient for a refusal
based on likelihood of confusion that relatedness is established for any item
encompassed by the identification of services in a particular class in the application.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988
(CCPA 1981).
Serial No. 86801997
- 10 -

The Examining Attorney submitted a number of Internet web pages from third-
party commercial websites demonstrating that a single entity is likely to provide or
feature assisted living facilities or nursing homes, such as those identified in the
application, and services including home health care, adult day care, nursing care,
and personal care assistance with daily living activities, such as those identified in
the registrations, under the same mark. For example, Brookdale, The Village at
Rockville, Greenspring, and Wesley Homes offer assisted living services and home
health care services,4 and Fenwick Landing, Good Samaritan Society, Heritage
Senior Communities, Hillview Health Center, Sagepoint, Shalom Cares, and Sunrise
offer assisted living facilities or nursing home care, as well as adult day care services,
personal care assistance of activities of daily living, and/or nursing care under the
same mark.5 See, e.g., In re C.H. Hanson Co., 115 USPQ2d 1351, 1355-56 (TTAB
2015); In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009).
The Examining Attorney also made of record a number of use-based, third-party
registrations from the USPTO’s electronic database to show that it is common for a
single entity to register the same mark for services that are the same as, or very
similar to, those at issue.6 For example, Reg. No. 4861691 for FELLOWSHIP
SENIOR LIVING identifies assisted living, activities of daily living, and home health
services, Reg. No. 4555230 for A AVAMERE identifies assisted living, nursing home,

4 December 17, 2015 Office Action, TSDR 62-70. Citations to the TSDR database are to the
downloadable .pdf format.
5 February 2, 2017 Office Action, TSDR 14-47.
6 December 17, 2015 Office Action, TSDR 10-13, 16-56.
Serial No. 86801997
- 11 -

home health and daily living services, and Reg. Nos. 4567062 for THE ABBEY and
4563791 for THE EXPERTS FOR AGING ADULTS identify assisted living, nursing
home and home health services.7
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., 6
USPQ2d 1467, 1470 n.6 (TTAB 1988); see also In re Anderson, 101 USPQ2d 1912,
1919 (TTAB 2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB
1993).
Based upon the identifications of services in the application and registrations, and
the ample evidence of record, we find that consumers would believe that the services
identified in the application are closely related to the services identified in the
registrations, and that they may emanate from a common source.
2. Channels of Trade
Considering the channels of trade and classes of purchasers, because there are no
limitations or restrictions as to trade channels or classes of purchasers in the
identification of services in the application or cited registrations, we presume that
the identified services are or would be marketed in all normal trade channels for such

7 Id. at TSDR 10-13 and 16-24.
Serial No. 86801997
- 12 -

services and to all normal classes of purchasers of such services. 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.”). The
trade channels for the services identified in application and registrations would
include the elderly or infirm as well as their family and friends. The relevant class of
consumers for the identified services also is the same, i.e., those who require or are
helping those who require elder or infirm care. 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 (e.g., Brookdale, Greenspring,
Fenwick, and Sunrise) confirms that assisted living facilities and nursing homes
travel in the same channels of trade and are offered to the same classes of consumer
as home health care, adult day care, nursing care, and personal care assistance with
daily living activities. See Anderson, 101 USPQ2d at 1920.
The similarities of the services and their channels of trade weigh heavily in favor
of a finding of likelihood of confusion.
C. Lack of Actual Confusion
Applicant asserts that its mark has coexisted with Registrant’s marks for nearly
14 years with no known instances of actual confusion.8 While a showing of actual

8 4 TTABVUE 5.
Serial No. 86801997
- 13 -

confusion would be highly probative, the “lack of evidence of actual confusion carries
little weight, especially in an ex parte context.” Majestic Distilling, 65 USPQ2d at
1205 (internal citations omitted) (“[U]ncorroborated statements of no known
instances of actual confusion are of little evidentiary value”); see also In re Bisset-
Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self-
serving testimony of applicant’s corporate president’s unawareness of instances of
actual confusion was not conclusive that actual confusion did not exist or that there
was no likelihood of confusion). In any event, there is no probative evidence as to
whether there have been meaningful opportunities for actual confusion to have
occurred in the marketplace. See Cunningham, 55 USPQ2d 1842, 1847 (Fed. Cir.
2000); Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB 1992).
Moreover, the test under Section 2(d) is likelihood of confusion, not actual confusion.
Accordingly, the du Pont factor of the length of time during and conditions under
which there has been contemporaneous use without evidence of actual confusion is
considered neutral.
D. Other Factors
Applicant has raised several other arguments in support of its appeal. We address
the arguments under the rubric of the thirteenth du Pont factor, which allows
consideration of “[a]ny other established fact probative of the effect of use.” du Pont,
177 USPQ at 567.
Serial No. 86801997
- 14 -

1. Prior Registration
First, Applicant argues that it owned a prior registration for the mark
RENAISSANCE for “retirement home and health care services,” which was cancelled
on August 29, 2014 because Applicant unintentionally failed to file a timely Section
8 affidavit or declaration of use.9 Relying on the Board’s decision in In re Strategic
Partners, 102 USPQ 1397, 1399 (TTAB 2012), Applicant argues that there is no
likelihood of confusion here because the cited registration for the mark R
RENAISSANCE HOME HEALTH CARE was allowed to register on January 7, 2014,
despite applicant’s prior registration for RENAISSANCE. Applicant also argues that
the current refusal is inequitable.
The arguments are unpersuasive. The existence of a prior registration does not
overcome evidence that a mark is now unregistrable. It is well settled that we must
assess each application on its own record at the time registration is sought, and that
we are not bound by the decisions of examining attorneys in other cases. In re Cordua
Rests., Inc., 823 F.3d 594, 600, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“The PTO is
required to examine all trademark applications for compliance with each and every
eligibility requirement . . . even if the PTO earlier mistakenly registered a similar or
identical mark suffering the same defect.”); see also In re Boulevard Entm’t Inc., 334
F.3d 1336, 67 USPQ2d 1475, 1480 (Fed. Cir. 2003) (“The fact that, whether because
of administrative error or otherwise, some marks have been registered even though
they may be in violation of the governing statutory standard does not mean that the

9 Reg. No. 1643099 issued on April 30, 1991; first renewal September 21, 2001.
Serial No. 86801997
- 15 -

agency must forgo applying that standard in all other cases.”); In re Nett Designs Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“[D]ecisions regarding other
registrations do not bind either the agency or this court.”).
Moreover, Applicant’s prior registration has been cancelled, and thus is not
entitled to any of the presumptions of Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b). See Anderson, Clayton & Co. v. Krier, 478 F.2d 1246, 178 USPQ 46, 47
(CCPA 1973) (“Whatever benefits a registration conferred upon appellee were lost by
him when he negligently allowed his registration to become canceled.”); In re Hunter
Publ’g Co., 204 USPQ 957, 963 (TTAB 1979) (cancellation “destroys the Section [7(b)]
presumptions and makes the question of registrability ‘a new ball game’ which must
be predicated on current thought.”).
We distinguish Strategic Partners, 102 USPQ2d 1397. In that case, an applicant
had been refused registration under Section 2(d) even though it owned an existing
registration that was over five years old for a mark and for goods that were
substantially similar to those set forth in the refused application. The Board noted
that, because the registration was over five years old, it was “not subject to attack by
the owner of the cited registration on a claim of priority and likelihood of confusion.”
Id. at 1399. See Section 14 of the Trademark Act, 15 U.S.C. § 1064. In addition, the
Board specified that the facts in Strategic Partners constituted a “unique situation,”
limited to cases that fall within those exact parameters. Strategic Partners, 102
USPQ2d at 1400.
Serial No. 86801997
- 16 -

Unlike Strategic Partners, Applicant’s earlier registration has been cancelled, and
both cited registrations issued well after Applicant’s deadline for filing an affidavit or
declaration of continued use under Section 8, even though the USPTO did not perform
the ministerial function of cancelling the earlier registration until 2014. Also unlike
Strategic Partners, Applicant’s current application identifies services that are not
identical to the services in the earlier (now cancelled) registration. Cf. In re Inn at St.
John’s, LLC, 122 USPQ2d 1742 (TTAB 2018) (declining to extend Strategic Partners
where an applied-for mark was “partially” similar to the mark in an existing
registration owned by that applicant although the services were identical).
Applicant also asserts that this case is analogous to Strategic Partners because
Applicant’s mark and Registrant’s mark R RENAISSANCE HOME HEALTH CARE
have “co-existed in commerce for nearly 14 years without any instances of
confusion.”10 However, as the Board recently explained, the coexistence in Strategic
Partners of the two parties’ registrations for five years was a key factor that led the
Board to reverse the Section 2(d) refusal because “the five year milestone carries
added weight because of its legal significance under the Lanham Act.” USA Warriors
Ice Hockey Program, 122 USPQ2d at 1793. We agree with the Examining Attorney
that “[t]he alleged coterminous use for five years of an unregistered mark with one of
the cited registrations provides no such added weight.”11

10 4 TTABVUE 5-6.
11 6 TTABVUE 18.
Serial No. 86801997
- 17 -

2. Earlier Use (Priority)
Second, Applicant claims, without support, that it was the first to use the mark in
connection with the services identified in the application. This allegation also is not
relevant to this ex parte proceeding. In re Calgon Corp., 435 F.2d 596, 168 USPQ 278,
280 (CCPA 1971). The Examining Attorney issued the refusal under Section 2(d) of
the Trademark Act, which provides for refusal on the basis of a mark’s resemblance
to “a mark registered in the Patent and Trademark Office…,” without regard to the
applicant’s alleged priority. 15 U.S.C. § 1052(d). An ex parte appeal is not the proper
forum for challenging the validity of a registration. Dixie Rests., 41 USPQ2d at 1534-
35.
3. Different Geographic Regions
Third, Applicant argues that confusion is not likely because Applicant and
Registrant provide their services in geographically distinct regions. This argument is
not persuasive because Applicant seeks a geographically unrestricted registration,
and Registrant owns nationwide registrations which give Registrant presumptive
exclusive rights to nationwide use of its marks in connection with the identified
services under Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b). Giant Food,
Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 393 (Fed. Cir. 1983)
(“Applicant seeks a geographically unrestricted registration under which it might
expand throughout the United States. Under these facts, it is not proper, as the TTAB
found, to limit our consideration to the likelihood of confusion in the areas presently
occupied by the parties. Section 7(b) of the Trademark Act of 1946, 15 U.S.C.
§ 1057(b), creates a presumption that the registrant has the exclusive right to use its
Serial No. 86801997
- 18 -

mark throughout the United States. Therefore, the geographical distance between
the present locations of the respective businesses of the two parties has little
relevance in this case.”).
Moreover, articles from TheStreet (“5 Successful Senior Care Franchises”),
Franchise Direct (“Home and Senior Care Franchise Industry Report 2016”), and The
Franchise Mall (“Respite Care Franchises”) note an increasing number of franchises
for senior care services through which the same source may offer nursing home or
assisted living facility services and respite care services under the same mark in
different states.12 The record also demonstrates that the same source may provide
assisted living facilities, nursing homes, respite care and/or senior care in many
states (including Applicant’s and Registrant’s home states) under the same mark,
some through franchising. In particular, Beehive Homes provides assisted living and
nursing homes as well as respite care through franchising in many states (with others
“coming soon”), Avendelle provides assisted living facilities in North Carolina and
Texas (and franchising opportunities “now expanding nationwide”), Golden Heart
Senior Care provides senior care in many states, Heartland-ManorCare provides
residential care, assisted living and respite care in many states, and Sunrise Senior
Living provides skilled nursing communities in several states, and assisted living and

12 August 23, 2017 Final Office Action, TSDR 28-64, 18, 80.
Serial No. 86801997
- 19 -

respite care in four locations near Applicant’s headquarters in Lakewood, OH, and
nineteen locations near Registrant’s headquarters in Edison, NJ.13
Finally, Applicant argues, without support, that confusion is unlikely because the
relevant purchasers would only look for local nursing homes. This argument is not
persuasive. We think it more likely that, as the Examining Attorney asserts,
Parties responsible for the care of someone who is elderly
or infirm and who are responsible for organizing and
arranging for such care may include children or siblings
residing in different locations and in different states that
that of the individual needing care. The evidence of record
confirms that the services involved here may be provided
in multiple locations by the same party, under the same
brand name, and through the same channels of trade. As a
result, purchasers are accustomed to seeing assisted living
services, nursing home and respite care services or nursing
care services provided by the same party under the same
brand name in different geographic locations. Such
purchasers are likely to be confused by the use of
substantially similar marks in connection with closely
related services.14
E. Conclusion
Having considered all the evidence and arguments bearing on the relevant du
Pont factors, we conclude that the marks are very similar, the identified services are
closely related and move through the same channels of trade to the same classes of
purchasers, and the lack of actual confusion and Applicant’s ownership of a prior (now
cancelled) registration are neutral factors. Ultimately, Applicant’s mark is likely to

13 Id., TSDR 65-68, 77-79 (Beehive); 17, 27, 75-76 (Avendelle); 25-26 (Golden Heart); 23-24,
72-74 (Heartland-ManorCare); and 19-22, 68-71 (Sunrise Senior Living). February 2, 2017
Office Action, TSDR 42-43 (Sunrise Senior Living skilled nursing communities).
14 6 TTABVUE 15-16.
Serial No. 86801997
- 20 -

cause confusion with the cited registered marks when used in connection with the
services identified in the application.
Decision: The refusal to register Applicant’s mark RENAISSANCE is affirmed
in each class.