Leather and Vinyl Doctor, LLC

Trademark Trial and Appeal Board

Jan 24, 2012

No. 77853280 (T.T.A.B. Jan. 24, 2012)

Mailed:
January 24, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Leather and Vinyl Doctor, LLC
________

Serial No. 77853280
_______

Scott T. Kannady of Brown & Kannady, LLC for Leather and
Vinyl Doctor, LLC.

Cynthia Sloan, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
_______

Before Holtzman, Bergsman, and Kuczma
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:

Leather and Vinyl Doctor, LLC (“applicant”) filed a
use-based application for the mark the THE LEATHER + VINYL
DOCTOR, in standard character form, for “furniture
restoration, repair and maintenance” in Class 37.
Applicant disclaimed the exclusive right to use the term
“Leather + Vinyl.”
The examining attorney issued a final refusal to
register the mark pursuant to § 2(d) of the Trademark Act
of 1946, 15 U.S.C. §1052(d), citing Registration No.
3626025 as a bar to registration. Registration No. 3626025
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 77853280
2
is for the mark LEATHER & VINYL MD and Design,1 shown below,
for “leather and vinyl cleaning and repair services;
upholstery cleaning and repair services,” in Class 37, with
“Leather & Vinyl” being disclaimed:

Preliminary Issues
A. Evidence attached to applicant’s brief
Applicant submitted Exhibits A-1, B-1 and C-1 with its
appeal brief. These Exhibits are updated internet
printouts supplementing Exhibits A, B and C filed with
applicant’s July 27, 2010 response to an Office Action.
The examining attorney did not address or object to
Exhibits A-1, B-1 and C-1.
Trademark Rule 2.142(d) addresses the submission of
evidence submitted after an appeal is filed:
The record in the application should be
complete prior to the filing of an
appeal. The Trademark Trial and Appeal
Board will ordinarily not consider
additional evidence filed with the
Board by the appellant or by the
examiner after the appeal is filed.

1 Registration No. 3626025, issued May 26, 2009.
Serial No. 77853280
3
Evidence submitted after appeal, without a granted
request to suspend and remand for additional evidence, see
TBMP § 1207.02, may be considered by the Board, despite its
untimeliness, if the nonoffering party (1) does not object
to the new evidence, and (2) discusses the new evidence or
otherwise affirmatively treats it as being of record. TBMP
§ 1207.03. Although the examining attorney did not object
to the late filed evidence, she did not discuss it or
otherwise treat it as being of record. Accordingly, the
Exhibits attached the applicant’s brief are untimely and
have not been considered.
B. Judicial Notice
With her appeal brief, the examining attorney
submitted copies of webpages relating to the definition of
the letters “MD,” requesting the Board take judicial notice
of the webpages based on our decision in In re Red Bull
GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). The webpages are
from the following websites and relate to the definition of
the letters “MD” as follows:
1. MD. Doctor of Medicine. 1. Managing Director,
2. Maryland, Latin Medicinae Doctor.
Collins English Dictionary,
http://www.collinslanguage.com/results.aspx?conte
xt=3&reversed=False&action=define&homonym=1&text=
MD.

Serial No. 77853280
4
2. M.D. noun [C]. abbreviation for Doctor of
Medicine (=an advanced university degree needed
to work as a medical doctor). Steven Tay, M.D.
Cambridge Dictionaries Online
http://dictionaries.cambridge.org/define.asp?key=
md*1+0&:dict=A.

3. md – 2 of 2 thesaurus results. Main Entry:
doctor. Part of Speech: noun. Definition:
medical practitioner. Synonyms: MD, bones, doc,
etc.
Roget’s 21st Century Thesaurus, Third Edition,
Copyright © 2011 by the Philip Lief Group
http://thesaurus.com/browse/md.

4. Words and phrases that have a meaning related to
doctor: (237 results). Appears in the definition
of:. . .”md;” Synonyms: . . . “md.”
Copyright © 2011 Datamuse
http://www.rhymezone.com/r/rhyme.cgi?Word=doctor.

For the reasons set forth in Red Bull, 78 USPQ2d at
1378, we take judicial notice of definition nos. 1-3 above;
however, we decline to take notice of definition no. 4
inasmuch as the source of the information is not identified
in the excerpt (e.g., derived from a well-known dictionary)
and there is no indication that it otherwise meets the
requirements for judicial notice.
Likelihood of Confusion
Our determination of likelihood of confusion under
§ 2(d) is based on an analysis of all of the probative
facts in evidence that are relevant to the factors
bearing on the likelihood of confusion. In re E. I. du
Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
Serial No. 77853280
5
(CCPA 1973). See also, In re Majestic Distilling Co., 315
F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and
the similarities between the goods and/or services.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976). These are the two
factors to which applicant and the examining attorney have
devoted the most attention. Other factors such as the
similarity or dissimilarity of trade channels, customer
care and lack of confusion, were also argued and
considered.
A. The similarity or dissimilarity and nature of the
services, channels of trade and classes of consumers

We initially address the du Pont factor involving the
similarity or dissimilarity of applicant’s services
(“furniture restoration, repair and maintenance”), in
relation to the services in the cited registration
(“leather and vinyl cleaning and repair services;
upholstery cleaning and repair services”). It is well-
settled that the issue of likelihood of confusion between
applied for and registered marks must be determined on the
basis of the services as they are identified in the
involved application and registration. Paula Payne
Serial No. 77853280
6
Products Co. v. Johnson Publishing Co., Inc., 473 F.2d 901,
177 USPQ 76, 77 (CCPA 1973). Thus, where a recitation of
services is broadly constructed, we must allow for all
possible services that may fall within the recitation,
keeping in mind that a likelihood of confusion may be found
with respect to a particular class based on any service
within the recitation of services for that class. See In
re Wacker Neuson SE, 97 USPQ2d 1408, 1409 (TTAB 2010)
citing Tuxedo Monopoly, Inc. v. General Mills Fun Group,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981).
Initially, we note applicant’s admission that both
parties provide “repair services.”2
To better assess the degree of similarity between
upholstery repair versus furniture repair services, we turn
to the definition of “upholstery:”3
(1). the padding, covering, etc, of a piece of
furniture.
Collins English Dictionary-Complete & Unabridged
10th Edition. 2009 © William Collins Sons & Co.
found at
http://dictionary.reference.com/browse/upholstery

2 Applicant’s Brief p. 5.

3 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 at 1377.

Serial No. 77853280
7
By definition, “upholstery” is a component of a piece of
furniture. Therefore, we find the term “furniture repair”
encompasses “upholstery repair” and, that “upholstery
repair” and “furniture repair” are closely related, if not
legally identical services.
To support the similarity of the services, the
examining attorney submitted eleven use-based third-party
registrations that serve to suggest that applicant’s
restoration and maintenance of furniture and registrant’s
cleaning of upholstery are of a kind that may emanate from
a single source.4 The registrations listed below are the
most relevant to show the relatedness of the services for
furniture and upholstery:5
Registration No. Mark Services
3056802 CARRIAGE
HOUSE II-IN
HOME
RESTORATIONS
“furniture restoration,
repair and maintenance;”
“Service includes---
chemical cleaning. . .
antique restoration. . .
furniture. . .upholstery
. . .”
3748234 ARAHULL “upholstery cleaning
services” and “furniture
restoration, repair and
maintenance”
3423984 SEALMASTER “cleaning and
maintenance services in

4 These third-party registrations submitted by examining attorney
were attached to the August 17, 2010 Office Action.

5 We have only listed the services in each of the registrations
that are pertinent to the services identified in applicant’s
application and the cited registration.

Serial No. 77853280
8
the field of . . .
upholstered furniture,
leather. . .”
3652918
3652920
(same owner)
Design Mark
KEMTEX
“. . . furniture care
services, namely,
furniture cleaning,
maintenance,
reupholstering,
refinishing, repair and
restoration . . .”
3553419 TEAMCARE “office furniture . . .
cleaning . . . repair
and maintenance”

Although such registrations are not evidence that the
marks shown therein are in use or that the public is
familiar with them, they nonetheless have probative value
to the extent they are based on use in commerce and serve
to suggest that that the services listed therein are of a
kind which may emanate from a single source under a single
mark. See In re Davey Products Pty Ltd., 92 USPQ2d 1198,
1203 (TTAB 2009); In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785-86 (TTAB 1993).
The internet materials submitted by the examining
attorney with the Office Action of January 27, 2010, also
support the close relationship between the parties’
services (emphasis added):
www.leathervinylmd.com advertises: “clean and repair
leather and vinyl furniture . . .” and “Leather Upholstery
Cleaning” by “First we deep clean your auto or furniture
Serial No. 77853280
9
upholstery . . .” “we come to your site to restore your
faded or damaged furniture upholstery . . .”6

http://expertleathercare.com advertises: “Taking Care Of
Your Leather Furniture Is Our Business,” and have “been in
the leather and vinyl furniture repair business since
1980,” “provide on-site mobile service to restore your
leather furniture . . . The experts in Leather Furniture
Cleaning and Repairs. . .”

www.leathermagic.com/+leather +upholstery+cleaner
advertises: “Leather Repair, Cleaning, Care and
Restoration” in connection with a photo of leather
furniture, and “restoration of Leather and Vinyl
Upholstery,”“Find out what it takes to repair, restore and
preserve your Leather, Vinyl and Cloth materials” with an
adjoining photo of furniture.

In addition, applicant submitted an excerpt from the
website identified below:7

www.leatherdoctoronline.com advertises: “refinish, recolor,
or reupholster your leather furniture,” offers
“Reupholstery” services by “Custom matching new leather on
an old piece [of furniture] that is damaged or faded beyond
repair, or replacing the old upholstery entirely.”

Because applicant’s and registrant’s repair services
are so closely related as to be legally identical, we can
presume that the channels of trade and classes of
purchasers are the same. See Genesco Inc. v. Martz, 66
USPQ2d 1260, 1268 (TTAB 2003) (“Given the in-part identical
and in-part related nature of the parties’ goods, and the
lack of any restrictions in the identifications thereof as
to trade channels and purchasers, these clothing items

6 This website features the mark shown in the cited registration.

7 See Exhibit C to July 27, 2010 response to Office Action.
Serial No. 77853280
10
could be offered and sold to the same classes of purchasers
through the same channels of trade”); In re Smith and
Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the
goods are legally identical, they must be presumed to
travel in the same channels of trade, and be sold to the
same class of purchasers.”).
Even without the presumption, the evidence shows that
the services travel in the same channels of trade to the
same types of customers. Where, as here, the services in
the application are broadly described and there are no
limitations in the recitation of services as to their
nature, type, channels of trade or classes of purchasers,
it is presumed that the scope of the application
encompasses all services of the nature and type described,
that applicant’s services move in all channels of trade
that would be normal for such services, and that
applicant’s services would be purchased by all potential
customers. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981),
citing The Kalart Co., Inc. v. The Camera-Mart, Inc., 258
F.2d 956, 119 USPQ 139 (CCPA 1958); see also, In re La
Peregrina Ltd., 86 USPQ2d 1645, 1646 (TTAB 2008).
In view of the inherent nature of upholstery as a
component of furniture, applicant’s recitation of services,
namely, furniture restoration, repair and maintenance
Serial No. 77853280
11
services, is broad enough to encompass registrant’s
upholstery cleaning and repair services, and applicant’s
unrestricted services travel in all trade channels where
such services are offered. In this regard, registrant’s
services would be provided to customers who wish to repair
upholstery. Inasmuch as upholstery is a component of
furniture, applicant’s furniture repair services are broad
enough to encompass upholstery repair and would therefore
be provided to the same customers. This is supported by
the foregoing third-party registrations and internet
evidence that demonstrates upholstery and furniture
restoration, maintenance, cleaning and repair services are
promoted via similar avenues and offered by the same
entities.
Applicant’s argument that consumers interested in
services of any kind are sophisticated and exercise a
higher degree of purchaser care, is without any evidentiary
support and does not factor into our decision.
Based on the legally identical or highly related
nature of the services set forth in the application and
cited registration, and the similar trade channels and
customers, the du Pont factors of the similarity of the
services, trade channels and customers favors a finding of
likelihood of confusion.
Serial No. 77853280
12
B. The similarity or dissimilarity of the marks as to
appearance/sound/connotation and commercial impression

We now turn to the du Pont factor focusing on the
similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression. du Pont, 177 USPQ at 567. In a
particular case, any one of these means of comparison may
be critical in finding the marks to be similar. In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re
Lamson Oil Co., 6 USPQ2d 1041, 1042 (TTAB 1987).
1. Sound and appearance
The marks are very similar in sound and appearance to
the extent they incorporate the phrase “Leather [&/+]
Vinyl” near the beginning of each mark. The “+” symbol in
applicant’s mark is positioned between two words. Placed
as such, it appears as a symbol for the word “and” in the
same manner as the “&” in applicant’s mark. Therefore, the
“+” and the “&” symbols of the marks will be pronounced the
same, rendering the phrases “Leather + Vinyl” and “Leather
& Vinyl” identical in sound and, the marks “THE LEATHER &
VINYL DOCTOR” and “LEATHER & VINYL MD and Design” similar
in sound and appearance. However, due to the weakness of
the “Leather [&/+] Vinyl” phrase as discussed infra, the
Serial No. 77853280
13
similarity in sound and appearance is not entitled to
significant weight.
2. Connotation
Although applicant’s mark begins with the word “THE,”
the definitive article “the” is not distinctive and does
not add any source-identifying significance. See In re The
Place Inc., 76 USPQ2d 1467, 1468 (TTAB 2005)(the definite
article THE and the generic term BAR are not distinctive
terms, and they add no source-indicating significance to
the mark as a whole); In re Weather Channel, Inc. 229 USPQ
854, 856 (TTAB 1985)(“nor does the use of the word ‘the’
add any source-indicating distinctiveness” to the term THE
WEATHER CHANNEL); In re The Computer Store, Inc., 211 USPQ
72, 74-75 (TTAB 1981)(use of the definite article “The”
does not convert the merely descriptive term THE COMPUTER
STORE into a registrable mark). Thus, the inclusion of the
word “THE” in applicant’s mark does not serve to
distinguish its mark from the cited mark.
Applicant’s mark concludes with the word “Doctor”
while the cited mark concludes with the letters “MD” and
contains a design of a doctor. In view of the similar
connotation of “doctor” and “MD,” these differences are not
sufficient to distinguish the marks and avoid likelihood of
confusion.
Serial No. 77853280
14
Based on the results of an internet search for “MD”
which revealed listings for the State of Maryland as well
as for “doctor of medicine” and other health related
websites, Applicant argues that the term “MD” is not
conclusive of the word “doctor” and could be used in
reference to the State of Maryland.8 The dictionary
definitions submitted by the examining attorney, of which
we have taken judicial notice, show that “MD” is an
abbreviation for “Doctor of Medicine,” and is a synonym for
“doctor.”
We do not disagree with applicant that the letters
“MD” may sometimes refer to the State of Maryland as
reflected in applicant’s evidence as well as in definition
no. 1 supra. In this instance however, viewers of
registrant’s mark used in connection with repair services
would more likely than not interpret “MD” to mean “doctor”
given the context of the mark which includes a design of a
“doctor” as well as the suggestive correlation between
“doctors” and “repairing.”
Applicant has not shown any association of the phrase
“Leather and Vinyl” with the State of Maryland or any other
reason why viewers would associate “MD” when used with the

8 Applicant’s Brief p. 4; Exhibit A to July 27, 2010 response to
Office Action.
Serial No. 77853280
15
term “Leather and Vinyl” with the State of Maryland. None
of the third-party references in applicant’s Exhibits A-C9
show use of the term “MD” in connection with “Leather &
Vinyl” where “MD” is used as an abbreviation or reference
to the State of Maryland. Thus, while the letters “MD” may
not be conclusive of the word “doctor,” the evidence of
record shows that “MD” is commonly defined and associated
with the word “doctor.” Thus, when we consider the marks
as a whole, the connotation of applicant’s mark which
includes the word “doctor,” and the cited mark which
includes the letters “MD,” is the same. While it is
axiomatic that a mark should not be dissected and
considered piecemeal in determining likelihood of
confusion, Franklin Mint Corp. V. Master Mfg. Co., 667 F.2d
1005, 212 USPQ 233, 234 (CCPA 1981), it can be appropriate
to accord additional weight to a feature of a mark provided
the ultimate conclusion rests on consideration of the marks
in their entireties. In re Nat’l Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
3. Commercial Impression
It is well established that confusion is likely not
only for marks that physically sound or look alike, but

9 Submitted as Exhibits A-C to July 27, 2010 response to Office
Action.
Serial No. 77853280
16
also for marks that convey the same idea, stimulate the
same mental impression or may have the same overall
meaning. The Proctor & Gamble Co. v. Conway, 419 F.2d
1332, 164 USPQ 301, 304 (CCPA 1970)(MISTER STAIN likely to
be confused with MR. CLEAN on competing cleaning products);
Ralston Purina Co. v. Old Ranchers Canning Co., Inc., 199
USPQ 125, 127-28 (TTAB 1978)(TUNA O’THE FARM for canned
chicken likely to be confused with CHICKEN OF THE SEA for
canned tuna).
When considering the similarity of the marks, the test
is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether
the marks are sufficiently similar in terms of overall
commercial impression so that confusion as to the source of
the services offered under the respective marks is likely
to result. 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 unpublished, No. 92-
1086 (Fed. Cir. June 5, 1992).
In evaluating the similarities of the marks, if one of
the marks comprises both a word and a design, the word is
normally accorded greater weight in determining whether
marks are similar because it would be more likely to be
Serial No. 77853280
17
impressed upon a purchaser’s memory and used by purchasers
to request the goods or services. CBS Inc. v. Morrow, 708
F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983); In re Kysela
Pere et Fils Ltd., 98 USPQ2d 1261, 1267-68 (TTAB 2011); In
re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1596 (TTAB
1999); In re Appetito Provisions Co. Inc., 3 USPQ2d 1553,
1554 (TTAB 1987); Kabushiki Kaisha Hattori Tokeiten v.
Scuotto, 228 USPQ 461, 462 (TTAB 1985).
The word portion of registrant’s mark is entitled to
more weight even though the words “Leather and/& Vinyl”
have been disclaimed by both applicant and registrant.
When determining whether there is a likelihood of
confusion, marks must be considered in their entireties and
a disclaimer does not remove the disclaimed portion of a
mark for purposes of this analysis. Nat’l Data Corp., 224
USPQ at 751; Specialty Brands, Inc. v. Coffee Bean
Distributors, Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed.
Cir. 1984); In re Iolo Technologies LLC, 95 USPQ2d 1498,
1499 (TTAB 2010). Therefore, while the mark in the cited
registration contains a design and claims color as a
feature of the mark, the words “Leather & Vinyl MD” are to
be accorded greater weight than the design portion. This
is especially so in this case where the design portion of
Serial No. 77853280
18
the cited mark reinforces the significance of the word
portion of the mark.
The design as described in the cited registration
consists of “an orange doctor in scrubs with a
steth[o]scope examining a hanging leather hide above the
orange words ‘Leather and Vinyl MD’.” This design
illustrates and reinforces the words “Leather” and “MD” in
the cited mark. Therefore, instead of differentiating the
cited mark, the design considered together with the word
portion of the cited mark conveys the same commercial
impression as the words “Leather + Vinyl Doctor” in
applicant’s mark.
In assessing the commercial impressions of marks, that
a particular feature is descriptive with respect to the
involved goods or services is one commonly accepted
rationale for giving less weight to a portion of a mark.
Nat’l Data, 224 USPQ at 751. Here, applicant supports its
argument that the term “Leather & Vinyl” is weak with
internet evidence showing descriptive uses of “Leather &
Vinyl” for repair services offered by third parties.10

10 Applicant’s Brief p. 4, and Exhibits B and C to July 27,
2010 response to Office Action which refer to: “browse our
directory of leather and vinyl repair franchises,”
www.allbusniness.com; “Mobile leather and vinyl repair. .
.,” www.coloradocolorglo.com; “. . . repair leather and
vinyl furniture. . .,” www.leathervinylmd.com [featuring
Serial No. 77853280
19
Applicant also disclaimed the term “Leather & Vinyl” in its
response to the July 27, 2010 Office Action providing
further evidence of the descriptiveness of this term. See
Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc., 89
USPQ2d 1844, 1851 (TTAB 2008). We agree that “Leather &
Vinyl” is descriptive of furniture and upholstery repair
services and, therefore accord it less weight in
determining the overall similarity of the marks.
Applicant also submitted a sampling of webpages for
various furniture and repair businesses utilizing names
that are allegedly similar to the cited mark.11 While
third-party uses of the cited mark would be evidence of the
weakness of the mark and is a separate du Pont factor to be
considered in determining likelihood of confusion, 177 USPQ
at 567, applicant’s evidence fails to show use of the cited
mark by third parties. Even if the business names shown in
the webpages evidenced use of the cited mark, they would
have limited probative value because they do not show the
public’s awareness of the respective businesses, see
Anthony’s Pizza & Pasta Int’l Inc. v. Anthony’s Pizza

cited mark]; “Repairs to leather and vinyl goods. . .,”
www.myleatherdoctor.com; “Vinyl/Leather Repair,”
www.drvinyl.com/usa.

11 Applicant’s Brief p.4, and Exhibit C to July 27, 2010 response
to Office Action.

Serial No. 77853280
20
Holding Co., 95 USPQ2d 1271, 1278 (TTAB 2009), and fall far
short of the persuasive evidence of “numerous” third party
uses such as those involved in Steve’s Ice Cream v. Steve’s
Famous Hot Dogs, 3 USPQ2d 1477 (TTAB 1987); In re Broadway
Chicken Inc., 38 USPQ2d 1559 (TTAB 1996), cited by
applicant.12
Regardless of the weakness of the term “Leather &
Vinyl,” the non-descriptive word portions of the marks,
i.e., “Doctor” and “MD,” are synonymous. As explained in
Nat’l Data, where a descriptive term forms part of two or
more marks for related products, the purchasing public
becomes conditioned to this frequent marketing situation
and will not be confused unless the overall combinations
have other commonality. 224 USPQ at 752. Here, the
overall similarities in commercial impression of the marks
results from the equivalence of the terms “MD” and “Doctor”
in combination with the identical, but weak, term “Leather
[&/+] Vinyl.” Considering the substantial similarities in
connotation and commercial impression between the marks, a
purchaser who sees one mark and later encounters the other
is likely to think, if the two marks used for the same or
related services, that the second mark is the same mark
seen earlier, or if some differences are recognized, that

12 Applicant’s Brief p. 4.
Serial No. 77853280
21
the second mark is a slightly varied version of the first,
with both serving to indicate origin in the same source.
See In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1468
(TTAB 1988).
In comparing the marks, we are mindful that where, as
here, applicant’s services are closely related or legally
identical to registrant’s services, the degree of
similarity necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity
between and services. Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992); Real Estate One, Inc. v. Real Estate 100
Enterprises Corp., 212 USPQ 957, 959 (TTAB 1981); ECI
Division of E-Systems, Inc. v. Environmental Communications
Inc., 207 USPQ 443, 449 (TTAB 1980).
In view of the foregoing, we find applicant’s mark THE
LEATHER & VINYL DOCTOR is similar in connotation and
commercial impression to the LEATHER & VINYL MD and Design
mark shown in the cited registration.
C. Lack of actual confusion
In addition to the foregoing factors, applicant raised
the du Pont factor relating to a lack of actual confusion
Serial No. 77853280
22
noting that applicant is unaware of any confusion.13 The
fact that an applicant in an ex parte case is unaware of
any instances of actual confusion is generally entitled to
little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally has
no way to know whether the registrant likewise is unaware
of any instances of actual confusion, nor is it usually
possible to determine that there has been any significant
opportunity for actual confusion to have occurred. See,
e.g., In re Opus One Inc., 60 USPQ2d 1812, 1817 (TTAB
2001); In re Jeep Corporation, 222 USPQ 333, 337 (TTAB
1984); In re Barbizon International, Inc., 217 USPQ 735,
737 (TTAB 1983).
In any event, applicant’s uncorroborated statements of
no known instances of actual confusion are of little
evidentiary value. See In re Bissett-Berman Corp., 476
F.2d 640, 642, 177 USPQ 528, 529 (CCPA 1973) (stating that
self-serving testimony of appellant'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).

13 Applicant’s Brief p. 7.
Serial No. 77853280
23
D. Balancing the factors
In view of the similarity of the marks in their
entireties in connotation and commercial impression, the
legal identity of at least some of applicant’s services to
those in the cited registration, the relatedness of all of
the services of applicant and registrant, and the
presumption that the services may move in the same channels
of trade and are available to the same classes of
consumers, we find that applicant’s mark THE LEATHER +
VINYL DOCTOR for the services identified in the application
is likely to cause confusion with the mark LEATHER & VINYL
MD and Design shown in Registration No. 3626025.
Decision: The refusal to register is affirmed.