Global Healing Center

Trademark Trial and Appeal Board

Mar 30, 2007

No. 78665906 (T.T.A.B. Mar. 30, 2007)

Mailed:
March 30, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Global Healing Center, Inc.
________

Serial No. 78665906
_______

Erik J. Osterrieder of Schubert Osterrieder & Nickelson
PLLC for Global Healing Center, Inc.

Saima Makhdoom, Trademark Examining Attorney, Law Office
101, (Ronald R. Sussman, Managing Attorney).
_______

Before Seeherman, Zervas and Mermelstein, Administrative
Trademark Judges.

Opinion by Seeherman, Administrative Trademark Judge:

Global Healing Center, Inc. has appealed from the
final refusal of the Trademark Examining Attorney to
register GLOBAL HEALING CENTER, in standard character form,
for the following goods and services:
Nutritional supplements (Class 5); and

Nutrition consultation and counseling;
Providing information about dietary
supplements and nutrition; Dietary and
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 78665906
2
nutritional guidance; Providing health
information; Providing health care
information by telephone, mail, and
electronic mail; Providing counseling
and nutritional support for
degenerative diseases and for healing
of the mind, body and soul; Providing
medical information, namely,
information on alternative medical care
and nutritional supplementation (Class
44).1

Applicant has disclaimed exclusive rights to the word
HEALING.2
Registration has been refused on two grounds. It is
refused pursuant to Section 2(e)(1) of the Trademark Act,
15 U.S.C. § 1052(e)(1), on the ground that applicant’s mark
is merely descriptive, and pursuant to Section 2(d) of the

1 Application Serial No. 78665906, filed July 7, 2005, and
asserting first use and first use in commerce as of March 5,
1998.
2 As a result of a typographic error, applicant offered a
disclaimer of the word HEALTH (which word does not appear in
applicant’s mark) rather than HEALING in its response to the
first Office action. It is clear from applicant’s brief,
however, that applicant intended to offer a disclaimer of
HEALING. In the second (and final) Office action the Examining
Attorney stated that “the requirement for a disclaimer is not
necessary because the examining attorney has held that the entire
mark is descriptive under Section 2(e) of the Trademark Act. The
disclaimer was only required if the mark was allowed to proceed
to registration.” In its appeal brief applicant stated that its
“proffered disclaimer of HEALING was not entered because a
disclaimer was now no longer required since Applicant’s entire
mark was deemed merely descriptive under Section 2(e)(1).” This
statement by applicant is not entirely correct. Although the
Examining Attorney stated that a disclaimer was no longer
necessary, because applicant had submitted the disclaimer, and
because an applicant is permitted to disclaim matter even in the
absence of requirement for a disclaimer, the disclaimer was
entered into the record. Office records have now been corrected
to reflect that the disclaimer is of the word HEALING.
Ser No. 78665906
3
Trademark Act, 15 U.S.C. § 1052(d), on the ground that it
so resembles the mark GLOBAL WELLNESS CENTER, previously
registered in typed or standard character form, with the
words WELLNESS CENTER disclaimed, for “on-line retail drug
store services; on-line retail pharmacy services,” in Class
35, and “providing health information to others,” in Class
42,3 that as used in connection with applicant’s identified
goods and services, it is likely to cause confusion or
mistake or to deceive.
The appeal has been fully briefed.
Before we address the substantive grounds for refusal,
there are some procedural issues that we must discuss. On
February 8, 2007, three months after the filing of its
reply brief, and at the time the appeal was ready for
decision, applicant filed what it called a “Supplemental
Brief,” but what was in actuality an attempt to make
additional evidence of record. Trademark Rule 2.142(d)
provides that the record in the application should be
complete prior to the filing of an appeal. After an appeal
is filed, if the applicant wishes to introduce additional
evidence, the applicant may request the Board to suspend
the appeal and remand the application for further

3 Registration No. 2527033, issued January 8, 2002.
Ser No. 78665906
4
examination. Accordingly, we will treat applicant’s
submission as a request for remand.
Section 1207.02 of the TTTAB Manual of Procedure
discusses requests for remand in order to made additional
evidence of record. It states that the request must
include a showing of good cause, and that the point in the
appeal process at which the request for remand is made will
be considered in the determination of whether good cause
exists. “Generally, the later in the appeal proceeding
that the request for remand is filed, the stronger the
reason that must be given for good cause to be found.” In
the present case, applicant seeks to make of record the
prosecution history record from the Office of Harmonization
in the International Market in regard to applicant’s
pending European Community trademark (“CTM”) application
for the same mark at issue herein, which shows that on
February 5, 2007, the CTM application was accepted without
any substantive rejections, including no “devoid of
distinctiveness” rejection, which applicant states is
parallel to a merely descriptive refusal under Section
2(e)(1).4

4 The material submitted by applicant from the Office of
Harmonization is so small as to be illegible. It could be read,
and with great difficulty, only by magnifying the computer image
to twice its normal size. The Examining Attorney had previously
advised applicant that some of its submissions were illegible
Ser No. 78665906
5
The fact that the acceptance of the application
occurred on February 5, 2007 shows that this is newly
available evidence that applicant could not have submitted
earlier. However, the question of whether good cause for
remand has been shown must be considered in the context of
the stage of the appeal during which the request for remand
was filed. As noted, the appeal was ready for decision
when applicant filed its request. To remand the
application at this point would require the Examining
Attorney to consider the evidence and, if the evidence were
not persuasive, to issue an action directed to it, after
which the applicant would file a supplemental appeal brief,
the Examining Attorney would file a supplemental brief in
response, and then applicant would have the opportunity to
file a supplemental reply brief. In view of the fact that
decisions by foreign trademark offices have virtually no
probative value on our decisions, and given the late stage
of the appeal, we do not find good cause for remanding the
application. Therefore, the materials submitted with
applicant’s “supplemental brief” will not be considered.

(final Office action, mailed June 13, 2006 regarding third-party
marks), yet applicant has continued to submit exhibits that are
so small that they are illegible. It is applicant’s
responsibility to submit evidence in legible form. Therefore, we
have considered the exhibits only to the extent that we could
read them.

Ser No. 78665906
6
In her appeal brief the Examining Attorney has
objected to Exhibits 8 and 9 submitted by applicant with
its appeal brief, namely, a listing of applications and
registrations from the USPTO database for marks that use
the terms “global” and “center.” In its reply brief
applicant states that exhibit 8, a listing of marks that
contain the words “global” and “center,” was submitted as
part of applicant’s response, filed March 2, 2006, to the
first Office action. Applicant is correct, and exhibit 8
is therefore part of the record. As for exhibit 9, a
listing of applications and registrations that include the
words “global” and “health,” applicant acknowledges that
this list was not previously submitted. However, applicant
relies on the following sentence in In re Norfolk
Wallpaper, Inc., 216 USPQ 903, 904 (TTAB 1983) to contend
that consideration of this exhibit does not require any
reopening or expansion of the examination procedure,
because it is merely an extension of the same argument made
with Exhibit 8:
We note that this single piece of
evidence was improperly introduced as
an exhibit to the Statement on Appeal,
a practice which the Board has had
occasion to question in numerous ex
parte opinions as an improper juncture
for reopening or expansion of the
examination procedure.

Ser No. 78665906
7
Applicant also asserts, without any explanation, that
Trademark Rule 2.142(d) does not mandate exclusion of
Exhibit 9 either.
In Norfolk the Board refused to consider the evidence
which the Examining Attorney had sought to introduce with
his brief. We do not read Norfolk as providing an
exception to the rule that it is impermissible to submit
new evidence with an appeal brief. Rather, since 1983,
when Norfolk was decided, the cases are legion that such
evidence is untimely. See TBMP § 1207.01. It is also
clear that consideration of the list of third-party marks
in Exhibit 9 would require reopening of the examination
procedure; in response to applicant’s submission of its
list of third-party marks (Exhibit 8) with its March 2,
2005 response, the Examining Attorney checked these marks
and determined that only one, the cited registration, was
for goods or services similar to the applicant’s. The
Examining Attorney obviously has had no opportunity to
ascertain what goods or services are covered by the marks
shown in Exhibit 9. The submission of Exhibit 9 is
untimely, and it has not been considered. See Trademark
Rule 2.142(d).
Even if Exhibit 9 had been timely submitted, we point
out that a mere listing of registrations or applications is
Ser No. 78665906
8
not sufficient to make them of record. “To make a third-
party registration of record, a copy of the registration,
either a copy of the paper USPTO record, or a copy taken
from the electronic records of the Office, should be
submitted.” TBMP § 1208.02. Mere listings of
registrations or applications are not sufficient to make
the registrations of record. Id. With respect to Exhibit
8, however, because applicant submitted this list with its
response to the first Office action, and the Examining
Attorney did not advise applicant that the listing was
insufficient to make the registrations and applications of
record at a point when applicant could have cured this
infirmity but, on the contrary, discussed the listing, the
Examining Attorney is deemed to have stipulated them into
the record. Thus, we have considered the listing for what
it shows on its face. Id.
There is one other evidentiary issue that was not
raised by applicant or the Examining Attorney, but which we
must address. In her brief, the Examining Attorney quotes
a sentence from applicant’s website, which page “was made
of record as the specimen in the original application.”
She then states that “applicant’s website also includes the
following phrases,” which she sets forth. Brief, p. 17.
We have reviewed the portion of the webpage which applicant
Ser No. 78665906
9
submitted with its application, and cannot find the quote
which the Examining Attorney has reported in her brief.
Nor are any other webpages of record, including webpages
which contain the phrases the Examining Attorney has
listed in her brief. Because the evidence from which she
purportedly obtained the quoted material is not of record,
we have not considered these quotations.
We turn now to the refusal of registration under
Section 2(e)(1). This refusal requires some clarification.
At the time of the first Office action, applicant’s
identification was limited to services in Class 44, and the
Examining Attorney refused registration on the ground that
applicant’s mark was merely descriptive of applicant’s
services. In its response to that action, applicant
amended its identification to include goods in Class 5 as
well as services in Class 44. In the final Office action
the Examining Attorney discussed the descriptiveness of
applicant’s mark in connection with its services, although
she did not specifically state that the refusal was made
only with respect to the services in Class 44, and not with
respect to the application in Class 5. Applicant viewed
the refusal as being limited to the services in Class 44,
as shown by the statements in its appeal brief. In her
brief the Examining Attorney did not specifically address
Ser No. 78665906
10
the question of whether the refusal pertained to both the
goods and services, or only the Class 44 services. On page
1 of her brief she stated that the refusal of registration
was made on the basis that “the mark is merely descriptive
when used on the identified goods.” At page 14, the
heading for the section of the brief discussing the merely
descriptive refusal is “Applicant’s mark is merely
descriptive when used in connection with the goods and
services identified in the application.” However,
throughout the discussion in this section the Examining
Attorney has referred to the mark being merely descriptive
only of applicant’s services, and has not discussed the
goods at all. Viewing all of the submissions in the file,
it is clear that the refusal of registration on the ground
of mere descriptiveness pertains only to the services in
Class 44, and not to the goods in Class 5.
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act, 15 U.S.C. §1052(e)(1), if it forthwith
conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the
goods or services. In re Abcor Development Corp., 588 F.2d
811, 200 USPQ 215, 217-18 (CCPA 1978). A term need not
immediately convey an idea of each and every specific
Ser No. 78665906
11
feature of the applicant’s goods or services in order to be
considered to be merely descriptive; rather, it is
sufficient that the term describes one significant
attribute, function or property of the goods or services.
In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In re
MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is
merely descriptive is determined not in the abstract, but
in relation to the goods or services for which registration
is sought, the context in which it is being used on or in
connection with the goods or services, and the possible
significance that the term would have to the average
purchaser of the goods or services because of the manner of
its use; that a term may have other meanings in different
contexts is not controlling. In re Bright-Crest, Ltd., 204
USPQ 591, 593 (TTAB 1979). Moreover, if the mark is
descriptive of any of the goods or services for which
registration is sought, it is proper to refuse registration
as to the entire class. In re Analog Devices Inc., 6
USPQ2d 1808 (TTAB 1988), aff’d without pub. op., 871 F.2d
1097, 10 USPQ2d 1879 (Fed. Cir. 1989).
In support of her position that applicant’s mark is
merely descriptive, the Examining Attorney has submitted
Ser No. 78665906
12
dictionary definitions5 of the words “global,” “healing” and
“center,” to wit:
Global: 1. worldwide: relating to or
happening throughout the whole world;
2. overall: taking all the different
aspects of a situation into account.

Healing: n. process of curing or
becoming well: the process of curing
somebody or something or of becoming
well; adj. Curative: having the effect
of curing or improving something

Center: … 6. place for particular
activity: a place where a particular
activity is carried on a sports center;
… 8. influential place or organization:
a place, area, or group of people
exerting control or influence over
somebody or something else[,] a center
of design innovation

The Examining Attorney asserts that GLOBAL HEALING
CENTER merely describes the purpose or function of
applicant’s services, namely, “a place where consumers
around the globe can purchase products and access online
information pertaining to degenerative diseases,
alternative medical care and well-being for the whole
body.” Brief, p. 15. In particular, the Examining
Attorney points to the definitions of the word “global,”
listed above, and argues that “when the mark is applied to
applicant’s services, the consumer is immediately informed

5 http://encarta.msn.com. These definitions were made of record
with the second Office action.
Ser No. 78665906
13
that the GLOBAL HEALING CENTER is a place where consumers
around the world can go to obtain health information,
information on healing degenerative diseases and medical
information on alternative healing modalities” or,
alternatively, “the consumer is immediately informed “that
applicant’s website is offering healing services to
consumers all over the globe.” Brief, pp. 16-17.6
The Examining Attorney also argues, based on the
second definition of “global,” that applicant’s mark merely
describes the purpose or function of applicant’s services,
“namely, to provide information on ‘global’ or whole body
healing.” Brief, p. 18.
There is little question that the word HEALING has a
descriptive significance with respect to applicant’s
services. Applicant has conceded as much by its disclaimer
of this term in response to the Examining Attorney’s
refusal of registration on the ground of mere
descriptiveness. The dictionary definition shows that the
word CENTER, too, has a descriptive significance as
indicating the place where applicant carries out its
health-related services. In this connection, we take

6 As noted previously, the Examining Attorney quotes certain
phrases in her brief that purportedly came from applicant’s
website. However, because the webpages are not of record, these
statements have not been considered. Even if they had been of
record, they would have no effect on our decision herein.
Ser No. 78665906
14
judicial notice that one dictionary definition for “center”
is “a place of concentrated activity or influence.”7
Applicant itself has stated it would be willing to disclaim
CENTER “if viewed necessary for registration purposes.”
Brief, p. 24. The primary question we must address, then,
is the effect of the word GLOBAL in the mark, and whether
the mark as a whole is merely descriptive.
With respect to the second definition of GLOBAL,
“overall: taking all the different aspects of a situation
into account,” the Examining Attorney argues that GLOBAL
HEALING CENTER describes the purpose of applicant’s
services, of providing information on whole body healing.
However, the Examining Attorney has submitted no evidence
that “global healing” is a recognized term, such that
consumers viewing the mark GLOBAL HEALING CENTER in
connection with the identified services would immediately
understand that a significant feature of applicant’s
services is that they are directed to “whole body healing.”
Rather, we find that a series of mental steps would be
necessary for consumers to reach a conclusion as to the
nature of applicant’s services based on this definition of

7 The American Heritage Dictionary of the English Language, ©
1970. The Board may take judicial notice of dictionary
definitions. University of Notre Dame du Lac v. J. C. Gourmet
Food Imports Co., Inc., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983).
Ser No. 78665906
15
the word GLOBAL. To this extent, then, we can consider the
mark only as suggestive rather than merely descriptive.
See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir.
1987) (a mark is suggestive if imagination, thought, or
perception is required to reach a conclusion on the nature
of the goods).
The Examining Attorney also points to the definition
of “global” as “worldwide: relating to or happening
throughout the whole world” to assert that the mark is
merely descriptive of a place where consumers from around
the world can go to obtain health information or that
applicant’s healing services are offered to consumers all
over the globe. However, we consider “global” in the
context of applicant’s services to be such a vague concept
that it does not directly and immediately inform consumers
about a significant feature or characteristic of
applicant’s services. Although “global” may well have a
descriptive meaning if it were used, for example, for
travel services, there is no evidence of record which shows
that “global” is a concept for the type of services
identified in applicant’s application. Compare, National
Fidelity Life Insurance v. National Insurance Trust, 199
USPQ 691 (TTAB 1978), in which NATIONAL INSURANCE TRUST was
found merely descriptive of handling administrative matters
Ser No. 78665906
16
in locating suitable insurance coverage for attorneys, in
view of evidence of widespread use of the term “national”
in the insurance and financial fields to describe the
geographic extent of the operations of companies employing
the term.
Accordingly, we reverse the refusal to register GLOBAL
HEALING CENTER on the ground that it is merely descriptive
of the identified services. However, because of our
finding that HEALING and CENTER are merely descriptive
terms, a registration may not issue without a disclaimer of
these words. As noted, applicant has already submitted a
disclaimer of HEALING, and it has stated that it would be
willing to disclaim CENTER if necessary for registration
purposes. Accordingly, the Board has treated this
statement as an authorization to enter such a disclaimer.
Thus, Office records have been amended to reflect a
disclaimer of HEALING CENTER.
This brings us to the refusal based on the issue of
likelihood of confusion. Our determination of this issue
is based on an analysis of all of the probative facts in
evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563 (CCPA 1973). See also, In re Majestic Distilling Co.,
Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In
Ser No. 78665906
17
any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997). Because applicant is attempting to register its mark
for both goods and services, we will consider the issue of
likelihood of confusion with respect to each class of the
application, beginning with applicant’s services in Class
44.
We turn first to the du Pont factor of the similarity
of the services. One of the services identified in
applicant’s application is “providing health information.”
This service is identical to the “providing health
information to others” that is identified in the cited
registration. Therefore, the services must be considered
legally identical in part. Because 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, see Tuxedo Monopoly,
Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981), we need not undertake an extensive
analysis as to whether the additional services identified
Ser No. 78665906
18
in Class 44 of applicant’s application are related to the
registrant’s identified services, although we note that
applicant’s remaining identified services, including
“providing health care information by telephone, mail and
electronic mail,” “providing medical information, namely,
information on alternative medical care and nutritional
supplementation,” “nutrition consultation and counseling”
and “providing counseling and nutritional support for
degenerative diseases and for healing of the mind, body and
soul” either come within the general category of “providing
health information to others” or are closely related to
such services.
Applicant appears to argue that, despite the identical
language used to identify the services, the registrant’s
Class 44 services differ from those of applicant because
the registration also includes “on-line retail drug store
services” and “on-line retail pharmacy services.” Because
registrant also uses its mark for on-line drug stores and
pharmacies, and applicant does not, applicant contends that
there are dissimilarities in the services. Applicant also
asserts that, although both it and the registrant provide
health information to others, applicant’s services “are
primarily aimed at providing alternative medicine care
related to its nutritional supplements.” Brief, p. 14.
Ser No. 78665906
19
We are not persuaded by these arguments. As applicant
at least nominally recognizes, “the authority is legion
that the question of registrability of an applicant’s mark
must be decided on the basis of the identification of goods
[or services] set forth in the application regardless of
what the record may reveal as to the particular nature of
an applicant’s goods [or services], the particular channels
of trade or the class of purchasers to which sales of the
goods [or services] are directed.” Octocom Systems, Inc.
v. Houston Computer Services, Inc., 918 F.2d 937, 952, 16
USPQ2d 1783 (Fed. Cir. 1990), quoted by applicant at p. 13
of its brief. The same is true with respect to the goods
or services in the cited registration: likelihood of
confusion must be determined based on the identification.
The identification of the registrant’s services in Class 44
is not restricted to “providing health information to
others in the context of on-line retail drug store or
pharmacy services.” Moreover, whether or not applicant’s
services are aimed at providing “alternative medicine care”
related to its own nutritional supplements, its
identification does not include such limitations. Thus, as
the statement from Octocom quoted in applicant’s brief
makes clear, the fact that applicant’s services may, in
actuality, be limited in this manner is irrelevant to our
Ser No. 78665906
20
analysis. The du Pont factor of the similarity of the
services strongly favors a finding of likelihood of
confusion with respect to the Class 44 services.
Moreover, because the services are legally identical
in part, they must be deemed to travel in the same channels
of trade and be sold to the same classes of consumers,
which in this case would be the public at large.
Applicant’s argument that its services are offered only on
its own website ignores the statement applicant previously
quoted from Octocom., i.e., that registrability must be
determined based on the basis of the applicant’s
identification, regardless of what the record may reveal as
to the particular nature of the particular channels of
trade of the applicant’s services. Thus, this du Pont
factor also favors a finding of likelihood of confusion.8
This brings us to the du Pont factor of the similarity
of the marks. We begin our analysis with three well-
established principles: when marks would appear on

8 In its appeal brief applicant states that “if in the view of
the examiner and/or the Board a limiting amendment regarding
trade channels to Applicant’s goods and services of record is
required to lessen any perceived likelihood of confusion, then
Applicant is wiling to accept a limiting amendment. Brief, p.
17. Applicant is advised that the Board does not decide what
identifications might avoid the likelihood of confusion and then
suggest them to the applicant. Applicant had a full opportunity
to file a limiting amendment to its identification during the
examination of its application. Making this offhand statement in
its brief is clearly not appropriate.
Ser No. 78665906
21
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 America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed.
Cir. 1992); under actual marketing conditions, consumers do
not necessarily have the luxury of making side-by-side
comparisons between marks, and must rely upon their
imperfect recollections, Dassler KG v. Roller Derby Skate
Corporation, 206 USPQ 255 (TTAB 1980); and 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., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985).
The marks at issue herein have obvious similarities.
Both consist of three words and begin with the identical
word GLOBAL and end with the identical word CENTER. They
also differ to the extent that the middle word in
applicant’s mark is HEALING and the middle word in the
cited mark is WELLNESS. The words HEALING and CENTER, as
noted in our discussion of the refusal on the ground of
mere descriptiveness, are descriptive. Accordingly,
because they have less source-identifying significance,
Ser No. 78665906
22
they are entitled to less weight in the comparison of the
marks. Similarly, the words WELLNESS CENTER in the cited
mark, which have also been disclaimed and are descriptive,
deserve less weight in our analysis.
When the marks are compared in their entireties, and
giving due consideration to the stronger source-indicating
significance of the word GLOBAL in both marks, the
similarities in the marks far outweigh the differences.
Not only are the marks identical insofar as the words
GLOBAL and CENTER are concerned, but the only portions that
are different, HEALING and WELLNESS, have similar
connotations, with “healing” being defined as “the process
of curing or becoming well” and “wellness” being defined as
the “quality or state of being in good health.”9 Thus, the
marks are very similar in connotation, and overall they
convey the same commercial impressions. The du Pont factor
of the similarity of the marks favors a finding of
likelihood of confusion.
Applicant has asserted that applicant’s and the
registrant’s customers are sophisticated, and that the
respective services are not the subject of impulse

9 These definitions were taken from the Merriam-Webster Online
Dictionary, and were submitted by the Examining Attorney with the
Office action mailed February 8, 2006.

Ser No. 78665906
23
purchases. Although we do not dispute that some customers
for applicant’s and the registrant’s services would be
careful in that the services involve information about
health, we must also recognize that the services are
rendered to the public at large, and that not everyone will
necessarily exercise the same degree of care in obtaining
the services. Applicant has provided no information about
the cost of its services, nor do we have information as to
the cost of the registrant’s health information services.
They may, for example, be provided without charge through
the Internet. Rather than relying on the information as a
critical factor in deciding on a course of treatment,
customers may encounter the services while attempting to
gain preliminary information about a problem or concern,
and before they need to check carefully the source of such
information in order to determine whether or not the
information is reliable. Such consumers are not likely to
notice the slight distinction between applicant’s mark and
the registrant’s mark; in fact, a consumer who had viewed
the registrant’s mark on a website in connection with
health information services might, upon encountering
applicant’s mark during a subsequent Internet search,
misremember the mark because of the previously-discussed
similarities, and think that they are the same. In this
Ser No. 78665906
24
connection, we reiterate the point that under actual
marketing conditions, consumers do not necessarily have the
luxury of making side-by-side comparisons between marks,
and must rely upon their imperfect recollections. To this
extent, i.e., for consumers that are obtaining preliminary
health information, this du Pont factor must be considered
to favor a finding of likelihood of confusion.
With regard to the factor of fame, as applicant points
out, there is no evidence that the registrant’s mark is
famous. This is usually the case in an ex parte
proceeding, since the Examining Attorney normally would
have no access to evidence that would prove the fame of a
mark. However, the lack of fame of the registrant’s mark
does not support the contrary conclusion, asserted by
applicant, that the cited mark is weak. See In re Majestic
Distilling Co., Inc., supra, 65 USPQ2d at 1205, in which
the Court stated that while the fame of a registered mark
is relevant to likelihood of confusion, “we decline to
establish the converse rule that likelihood of confusion is
precluded by a registered mark's not being famous.” Thus,
this du Pont factor is neutral.
The next factor we consider is that of third-party
use. As applicant points out, evidence of third-party use
can be used to show that customers have become so
Ser No. 78665906
25
conditioned by a plethora of similar marks that they can
distinguish between such marks on the basis of minute
distinctions. However, applicant has provided no probative
evidence of such use. Applicant has submitted a search
summary page of the results of a search made using the
Google search engine which includes, in a description of
one “hit,” the statement that “Charming Health.com is the
first Global Wellness Center that offers an online solution
for emotional imbalance.” However, the actual webpages
from that website, also submitted by applicant, do not
include this phrase, and certainly are not evidence of use
of “Global Wellness Center” as a trademark. Applicant has
also submitted a list of third-party registrations and
applications, taken from USPTO records, of marks that
include the words GLOBAL and CENTER. Third-party
applications show only that the applications have been
filed; third-party registrations are not evidence that the
marks shown therein are in use or that the public is
familiar with them. See In re Albert Trostel & Sons Co.,
29 USPQ2d 1783 (TTAB 1993). Thus, there is no evidence of
third-party use, and this du Pont factor must be considered
neutral.
Third-party registrations may also be used in the
manner of dictionary definitions, to show that a term has a
Ser No. 78665906
26
particular significance for the goods or services at issue.
Because the list applicant submitted, i.e., Exhibit 8, does
not reflect the goods or services with which the marks are
associated, they do not show that GLOBAL has any
significance for the applicant’s or registrant’s goods or
services. (As noted previously, based on the dictionary
definition, HEALING and CENTER have descriptive
significance.) Further, as noted earlier in this decision,
in response to applicant’s submission of this list, the
Examining Attorney stated that none of the marks, with the
exception of the cited registration, is for goods or
services similar to the applicant’s. Applicant has not
contradicted this characterization.
The final du Pont factor that has been the subject of
argument by applicant or the Examining Attorney is that of
lack of evidence of actual confusion. Applicant asserts
that there have been no instances of actual confusion
despite concurrent use since May 2000 (assuming use by
registrant since the date claimed in its registration),
despite “Applicant’s continuous, hourly, and widespread use
of GLOBAL HEALING CENTER for almost a decade.” Brief, p.
21. The comments of the Court in In re Majestic Distilling
Co., Inc., supra 65 USPQ2d at 1205, are particularly
applicable to this argument (citations omitted):
Ser No. 78665906
27
With regard to the seventh DuPont
factor, we agree with the Board that
Majestic's uncorroborated statements of
no known instances of actual confusion
are of little evidentiary value. A
showing of actual confusion would of
course be highly probative, if not
conclusive, of a high likelihood of
confusion. The opposite is not true,
however. The lack of evidence of
actual confusion carries little weight,
especially in an ex parte context.

We also point out that, while applicant may be available on
a “continuous” or “hourly” basis, applicant has provided no
evidence regarding the number of customers to whom it has
provided information, where they are located, etc. Nor do
we have any information as to the extent of the
registrant’s activities, such that we could determine
whether there has been an opportunity for confusion to
occur. Nor, for that matter, do we have any information as
to the registrant’s experience, and whether it has
encountered any instances of actual confusion. Thus, the
factor of lack of evidence of actual confusion is neutral.
After considering all of the relevant du Pont factors,
we find that applicant’s use of its mark GLOBAL HEALING
CENTER in connection with its identified services is likely
to cause confusion with the cited registration.
We now turn to a consideration of the issue of
likelihood of confusion with respect to the use of
Ser No. 78665906
28
applicant’s mark for nutritional supplements. Applicant
takes the position that its goods and the registrant’s
identified services are fundamentally dissimilar because
its application is for goods, and the registration includes
only services. However, it is not necessary that the goods
and services of the applicant and registrant be similar or
competitive, or even that they move in the same channels of
trade, to support a holding of likelihood of confusion. It
is sufficient that the respective goods and services are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods and
services are such that they would or could be encountered
by the same persons under circumstances that could, because
of the similarity of the marks, give rise to the mistaken
belief that they originate from the same producer. See In
re International Telephone & Telegraph Corp., 197 USPQ 910
(TTAB 1978).
In support of the refusal, the Examining Attorney has
made of record various third-party registrations. Third-
party registrations which individually cover a number of
different items and which are based on use in commerce
serve to suggest that the listed goods and/or services are
of a type which may emanate from a single source and be
sold under a single mark. See In re Albert Trostel & Sons
Ser No. 78665906
29
Co., supra. The third-party registrations that include or
refer to “nutritional supplements” (the subject of
applicant’s Class 5 application) are Registration No.
2790613 for vitamins and nutritional supplements and retail
drug store services; Registration No. 2702920 for
nutritional supplements and prescription pharmaceutical
preparations sold through mail order pharmacy services;
Registration No. 2710200 for, inter alia, mail order
services featuring health products and nutritional
supplements and counseling in the field of health, well-
being and nutrition; Registration No. 2790613 for vitamins
and nutritional supplements and retail drug store services;
Registration No. 2867665 for retail pharmacy services
featuring, inter alia, nutritional supplements; and
Registration No. 2842946 for LONGS for, inter alia, dietary
and nutritional supplements as part of “a full line of
pharmaceutical products” and “retail store services
featuring pharmaceuticals” and “online pharmacy services.”10
In addition, the Examining Attorney submitted printouts of

10 The LONGS registration appears to be a house mark, in that it
is registered by Longs Drug Stores in 21 classes. Normally
registrations for house marks are given little probative value in
terms of showing that the various goods and services listed
therein are related because they cover such a disparate range of
goods. However, here we are not viewing the registration to
indicate that all of the items in all the classes are related,
but as evidence of the wide variety of goods and services that
can be sold through retail stores and online pharmacies.
Ser No. 78665906
30
pages from various websites that show on-line pharmacies
and drug stores offer nutritional supplements and also
offer health care information. See, for example, the
website for Walgreens.com which lists “dietary supplements”
and also includes a “health library” with a “Health
Encyclopedia,” “Drug Information & Prices” and “Ask a
Pharmacist”; and the webpages for CVS pharmacy which has
the categories “Vitamins & Supplements,” and “Health
Resources,” the latter of which lists “Articles with advice
& tools on health topics,” “From the Pharmacist” and
“Pharmacy Q&A.” The website for drugstore.com lists, as
product categories, “supplements a-z,” “vitamins,”
“condition specific supplements” and “herbs.” In addition,
an article on BlueSuitMom.com about online drugstores
states that online drugstores stock “a range of over-the-
counter health aids, personal care items and beauty
products,” and also provide “information for the health
conscious customer” with an “Ask the Pharmacist” feature.
It states, for example, that PlanetRx.com “links you to
health channels for in-depth information on specific
diseases, medications and alternative treatments,” while
Rx.com “brings you health guides, drug factsheets and an
index of natural remedies.” Although this article is not
evidence of the truth of the statements made therein, it
Ser No. 78665906
31
can be used to show some public awareness of these features
of online drugstores.
We recognize that not all of the third-party
registrations include the specific services identified in
the cited registration, and the webpages do not actually
show use of the same mark for both on-line drug store
services and nutritional supplements. However, this
evidence, when taken in its entirety, serves to indicate
some relatedness between nutritional supplements, on the
one hand, and online drugstore services and providing
health information on the other, in that nutritional
supplements are a product and providing health information
is a service that is offered through online drugstores.
More importantly, applicant’s own activities shows the
relatedness between nutritional supplements and providing
health information, i.e., applicant provides health care
information related to its nutritional supplements. Thus,
because registrant’s service of “providing health
information to others” can include providing health
information regarding nutrition, if consumers who are aware
of registrant’s health information services encounter
nutritional supplements sold under a confusingly similar
mark, they are likely to believe that the nutritional
Ser No. 78665906
32
supplements emanate from or are associated with or
sponsored by the same source.
Applicant points out that the third-party
registrations include goods as well as services, but that
the cited registration is only for services. It appears to
be applicant’s position that because the cited registration
does not include any goods, the registrant is not
associated with any goods, and presumably that consumers
would not make a connection between goods and the
registrant. While we agree that the registration does not
include goods, it is not required, to support a finding of
likelihood of confusion, that the registrant actually use
its mark on goods - what is required is that consumers will
likely believe that there is an association as to source
between the goods and the services. Whether or not the
registrant actually sells nutritional supplements or other
goods is not the issue.
Accordingly, because we find that applicant’s
nutritional supplements are related to the registrant’s
services, and particularly the service of providing health
information to others, the du Pont factor of the similarity
of the goods and services favors a finding of likelihood of
confusion.
Ser No. 78665906
33
We have already discussed at some length the other du
Pont factors in connection with our consideration of
applicant’s services. Most of these comments apply to the
determination of whether the use of applicant’s mark for
its identified goods is likely to cause confusion with the
cited registration. Thus, with the exception of the
principle regarding the likelihood of confusion when marks
are used for identical services, the same statements we
made in our discussion of the similarity of the marks apply
with regard to the similarity of the marks as used on
applicant’s goods and the registrant’s services. That is,
although applicant’s goods and the registrant’s services
are not, obviously, identical, the marks are so similar,
because of the identical nature of the source-identifying
element GLOBAL in both marks, as well as the similarities
in appearance and pronunciation due to the elements GLOBAL
and CENTER, and the overall similarities in connotation and
commercial impression, that consumers are likely to believe
that the service of providing health information under the
mark GLOBAL WELLNESS CENTER, and nutritional supplements
sold under the mark GLOBAL HEALING CENTER, emanate from or
are sponsored by the same source. Even if we posit that
consumers will note the difference between the marks (a
supposition that we consider to be in doubt), they are
Ser No. 78665906
34
likely to believe that the marks are variations of each
other, rather than identifying separate sources of the
goods and services.
As for the channels of trade, while we agree that the
registrant would not sell applicant’s nutritional
supplements as part of its own service of providing health
information, as the registrant would not deliberately
attempt to cause confusion in this manner, the same classes
of customers are likely to encounter both the registrant’s
services and applicant’s goods. That is, the general
public could encounter the services of the provision of
health information through mail, telephone, Internet
websites, and the like, and also encounter nutritional
supplements offered in brick and mortar drugstores or
through on-line drugstores. To the extent that the goods
and services are offered to the same classes of customers,
this factor favors a finding of likelihood of confusion.
With respect to the sophistication and care of the
customers for the respective goods and services, again, the
customers are the public at large, and they range in terms
of the care that they would exercise in purchasing
nutritional supplements or obtaining health information.
We have already discussed the question of the level of care
with respect to health information. As far as nutritional
Ser No. 78665906
35
supplements are concerned, again applicant has provided no
information about the cost of such products. We do note,
from the webpages submitted by the Examining Attorney, that
third parties advertise products such as fish body oils for
$7.99 for 180 capsules and yeast natural symptom prevention
and relief for $6.39 for 60 tablets, (drugstore.com),
indicating that nutritional supplements can be bought for a
relatively low cost. Further, a consumer may suddenly be
reminded, upon seeing nutritional supplements on a
drugstore shelf, that it would be a good idea to take, for
example, a calcium supplement. Therefore, although some
consumers may well deliberate and exercise care in
determining which brand of nutritional supplement to buy,
for others the decision will be an impulse purchase, and
they will not exercise great care in examining the
trademark of the product. Thus, with respect to these
purchasers, this du Pont factor favors a finding of
likelihood of confusion.
The only other factor for which we must make an
additional comment is that of lack of evidence of actual
confusion. We reiterate our comments made in the previous
section of our opinion with respect to this factor. In
addition, we would add that it is not clear in what manner
applicant may have made “continuous” and “hourly” use of
Ser No. 78665906
36
its mark for nutritional supplements; our assumption is
that applicant means that its supplements have been
available at all times on a website. However, applicant
has not provided any evidence about the number or extent of
its sales of nutritional supplements. Further, it appears
that applicant sells its nutritional supplements only
through its own website or those of its distributors.
Thus, we cannot conclude from the evidence of record that
there has been an opportunity for confusion, such that we
can assume from the lack of evidence of actual confusion
that confusion is not likely to occur.
With respect to the remaining du Pont factors, we
reiterate the comments made in our discussion of these
factors as they applied to applicant’s services.
Thus, we find that applicant’s mark, as used for
nutritional supplements, is likely to cause confusion with
the cited registration. To the extent that there is any
doubt on this issue, such doubt must be resolved in favor
of the registrant. In re Azteca Restaurant Enterprises
Inc., 50 USPQ2d 1209 (TTAB 1999).
Decision: The refusal of registration on the ground
of mere descriptiveness with respect to the services is
reversed, but a disclaimer has been entered for the words
HEALING CENTER. The refusal of registration on the ground
Ser No. 78665906
37
of likelihood of confusion is affirmed with respect to the
goods in Class 5 and the services in Class 44.