Michael A. Boggess, MD, PLLC

Trademark Trial and Appeal Board

Mar 28, 2018

No. 86902982 (T.T.A.B. Mar. 28, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: March 28, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Michael A. Boggess, MD, PLLC
_____

Serial No. 86902982
_____

Robert J. Makar of LegalForce RAPC Worldwide, P.C.,
for Michael A. Boggess, MD, PLLC
Nicholas Altree, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Wellington, Adlin, and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Michael A. Boggess, MD, PLLC (“Applicant”) seeks registration on the Principal
Register of the mark REFLECTION LIFT (in standard characters, with LIFT
disclaimed) for “cosmetic and plastic surgery; cosmetic surgery services; providing
medical aesthetic procedures, namely, treating the skin with dermal fillers and
botulinum toxin” in International Class 44.1

1 Application Serial No. 86902982 was filed on February 10, 2016, based upon Applicant’s
allegation of use in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a),
claiming March 26, 2015 as both the date of first use and the date of first use in commerce.
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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 it
so resembles the registered stylized mark for “dermatology and
plastic surgery services” in International Class 44 as to be likely to cause confusion,
mistake, or to deceive.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. We affirm the refusal to register.
I. Analysis
We base our determination of likelihood of confusion under Trademark Act Section
2(d), 15 U.S.C. § 1052(d), 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, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v.
Hargis Ind., Inc., 575 U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also
In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
We have considered each relevant DuPont factor for which there is evidence or
argument, and have treated the other factors as neutral. See M2 Software, Inc. v. M2
Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on

2 Registration No. 4530113 issued on the Principal Register on May 13, 2014.
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those factors we find to be relevant.”). Varying weights may be assigned to each
DuPont factor depending on the evidence presented. Citigroup Inc. v. Capital City
Bank Grp. Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (factors “may play
more or less weighty roles in any particular determination”). In any likelihood of
confusion analysis, two key considerations are the similarities between the marks
and the similarities between the goods and services. In re i.am.symbolic, llc, 866 F.3d
1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375 (Fed. Cir. 2002)) (“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.’”); Primrose Ret. Cmyties., LLC v. Edward Rose Senior Living, LLC, 122
USPQ2d 1030, 1032 (TTAB 2016) (citing Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)).
A. Similarity of the Services
The second DuPont factor concerns “[t]he similarity or dissimilarity and nature of
the goods or services as described in an application or registration…” DuPont, 177
USPQ at 567; Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d
1001, 1004 (Fed. Cir. 2002); In re USA Warriors Ice Hockey Program, Inc., 122
USPQ2d 1790, 1795 (TTAB 2017) (“[I]t is sufficient for such purposes if the services
are related in some manner or if the circumstances surrounding marketing of these
Serial No. 86902982
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services are such that they could give rise to the mistaken belief that they originate
from or are in some way associated with the same source.”).
We base our evaluation on the services as they are identified in the application
and registration. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1161-62 (Fed. Cir. 2014); Octocom Systems, Inc. v. Houston
Computers Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); In re
Integrated Embedded, 120 USPQ2d 1504, 1514 (TTAB 2016). In this case, the
services are identical in part, as both entail plastic surgery. Given this identity of
services in the same class, International Class 44, the Examining Attorney was not
required to prove that Applicant’s other identified services were similar to
Registrant’s. See Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335,
209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion may be found as to the entire
class if there is likely to be confusion with respect to any service that comes within
the recitation of services in that class) cited in Primrose Ret. Cmyts., 122 USPQ2d at
1033.
The Examining Attorney has nonetheless submitted additional evidence showing
that the remaining services overlap in part, as Registrant’s dermatology services
encompass Applicant’s cosmetic surgery services and medical aesthetic procedures,
namely, treating the skin with dermal fillers and botulinum toxin. Several websites
show how skin treatment services using dermal fillers or botulinum toxin fall within
the field of dermatology.3 For example:

3 Examining Attorney’s brief, 10 TTABVUE 3.
Serial No. 86902982
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• Horizon Dermatology & Laser Institute ― Under the heading “Dermal
Fillers and Injectables,” the website states “BOTOX® Cosmetic is an injectable
form of Botulinum Toxin that temporarily improves the look of moderate to
severe crow’s feet, frown lines and forehead furrow. .. When performed by
experienced dermatologists, Botox injections are safe. Dr. David M. Cole MD
is a board-certified dermatologist with the experience necessary to provide
Botox safely and to achieve the best results.”4

• Dallas Center for Dermatology and Aesthetics ― Under the heading
“Dallas Dermatologists Report Increase in Dermal Filler Requests,” the
website states “The dermatologists at the Dallas Center for Dermatology and
Aesthetics … say they have seen an increase in the number of requests for
dermal fillers …. This boost reflects a national trend.
…
Like dermal fillers, botulinum toxin type A products … have also seen
increased demand, both in Dallas and nationally. After years, these products
remain the leaders among minimally invasive procedures.”5

• Dermatology Associates, P.C. ― Under the heading “Cosmetic
Dermatology,” the website states “Botulinum toxin is a medication that is
injected into the muscles beneath the skin to improve the appearance of
moderate fine lines and wrinkles.
…
A dermal filler is a gel-like substance that is injected into unwanted folds,
creases, and wrinkles to provide a more youthful appearance.”6

Hence, Applicant’s services are either identical or legally identical to Registrant’s
services. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012);
In re Integrated Embedded, 120 USPQ2d at 1514. In either event, the identity of the
services weighs heavily in favor of finding a likelihood of confusion under the second
DuPont factor.

4 www.horizonderm.com/cosmetic/dermal-fillers-and-injectables/ 1/6/2017, Jan. 7, 2017
Office Action TSDR pp. 30-31. All references to the TSDR are to the pdf version.
5 www.dallascosmeticderm.com/news/dermal-fillers.cfm 1/6/2017 Jan. 7, 2017 Office Action
pp. 35-36.
6 www.phillyskinandlaser.com/Cosmetic-Procedures 1/6/2018, Jan. 7, 2017 Office Action pp.
38-39.
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B. Channels of Trade and Classes of Customers

The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” DuPont, 177 USPQ at 567.
Applicant argues that:

Because medical or surgical services are provided by licensed medical
professionals, the trade channels the marks can travel in are necessarily
segmented – surgery especially requires a substantial amount of time and
attention from highly trained professionals, who are simply not available
to serve an entire market the way providers of goods or services may in
other industries. The frequent assumption that a lack of explicit
limitations in an identification mean the services at issue travel in the
same trade channels simply does not apply to medical care, or rather, the
normal assumption indicates that the normal trade channels the services
are traveling in are necessarily segmented. These necessarily narrow trade
channels of professional medical services weigh against a finding of
likelihood of confusion.7

“[I]t is well established that, absent restrictions in the application and
registration, [identical] goods and services are presumed to travel in the same
channels of trade to the same class of purchasers.” In re Viterra, 101 USPQ2d at 1908
(internal punctuation and citation omitted). As the above website evidence
demonstrates, Applicant’s and Registrant’s identified services―which we have found
are identical or legally identical―are offered by the same sorts of licensed medical
professionals, dermatologists and plastic surgeons, through the same sorts of clinical
settings to the same classes of consumers―ordinary consumers seeking to improve
their appearance.

7 Applicant’s brief p. 13, 7 TTABVUE 14.
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Because the channels of trade and classes of customers are the same, the third
DuPont factor also weighs heavily in favor of finding a likelihood of confusion.
C. Similarity of the Marks

Under the first DuPont factor, we consider the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). In a particular case, “two marks may be found to be confusingly similar if there
are sufficient similarities in terms of sound or visual appearance or connotation.”
Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB
1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992) quoted in In re Mr. Recipe, LLC, 118
USPQ2d 1084, 1089 (TTAB 2016).
Because Applicant’s and Registrant’s services are identical or legally identical, the
degree of similarity between the marks necessary to find likelihood of confusion
declines. See Bridgestone Americas Tire Operations LLC v. Federal Corp., 673 F.3d
1330, 102 USPQ2d 1061, 1064 (Fed. Cir. 2012); Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012); Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992), cert. denied, 506 U.S. 1034 (1992).
Again, Applicant’s mark is REFLECTION LIFT in standard characters, with
LIFT disclaimed, and Registrant’s mark is . The Examining
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Attorney contends that the first word in Applicant’s mark, REFLECTION, is not only
its dominant element, but virtually identical to Registrant’s word mark,
REFLECTIONS. The disclaimed second word, LIFT, is less significant, the
Examining Attorney contends, because it is either generic or highly descriptive of
Applicant’s identified services, and thus less likely to be regarded by consumers as
source-indicating.8
Applicant points out that the marks must be considered in their entireties, not
dissected. They differ in visual appearance, he contends, because “Applicant’s mark
consists of two words, whereas the Cited mark is only a single word. Applicant’s mark
presents the viewer with an entirely different word, ‘LIFT’ that is absent in the Cited
mark. Moreover, the Cited mark ends its first word with an ‘S’, whereas Applicant’s
mark does not.”9 The marks differ in sound and pronunciation, Applicant maintains,
because “Applicant’s mark is four syllables while the Cited mark is only three.
Moreover, Applicant’s mark contains the additional wording “LIFT” which is absent
from the Cited mark, thereby presenting the potential purchasers with additional
wording to be pronounced. Furthermore, the Cited mark ends with an ‘S’, thereby
changing the sound of the shared element of the respective marks, further
differentiating the sound of the two marks.”10 The marks differ in connotation and
commercial impression, Applicant reasons, because “[t]he Cited mark,

8 Examining Attorney’s brief, 10 TTABVUE 4-6.
9 Applicant’s brief p. 10, 7 TTABVUE 11.
10 Id. at 11, 7 TTABVUE 12.
Serial No. 86902982
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‘REFLECTIONS’ produces a commercial impression which focuses the potential
purchaser on appearances (plural), or the act of self-observation or self-reflection.
Applicant’s mark, ‘REFLECTION LIFT’, in contrast, produces a commercial
impression in which the potential purchasers are drawn to the notion of improving or
‘lifting’ their appearance or ‘reflection’. As such, Applicant’s mark impresses on the
purchasing public a notion of improvement or ‘lift’ and one’s appearance that is not
similarly produced by the Cited mark.”11
We find, however, that the marks are more similar than dissimilar. While we must
consider a mark in its entirety, one feature may be more significant than other
elements. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985) (“[I]n articulating reasons for reaching a conclusion on the issue of confusion,
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 consideration of the marks in their entireties.”); In re Davia, 110 USPQ2d
1810, 1813 (TTAB 2014). In this case, as the Examining Attorney correctly observes,
REFLECTION is the dominant element of Applicant’s mark. Its dominance is
reinforced by its location as the first word in the mark. Palm Bay Imps., 73 USPQ2d
at 1692 (“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); Presto
Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often

11 Id. at 12, 7 TTABVUE 13.
Serial No. 86902982
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the first part of a mark which is most likely to be impressed in the mind of a purchaser
and remembered”).
The remaining part of Applicant’s mark, the suffix LIFT, is less significant and
rightly disclaimed, as it is generic or highly descriptive in this field, so much so that
consumers, especially those seeking “face lifts,” would be unlikely to focus upon it to
distinguish source.12 See Citigroup Inc. v. Capital City, 98 USPQ2d at 1257; In re
Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); (finding
DELTA the dominant part of the mark THE DELTA CAFÉ because CAFÉ was
disclaimed). In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001)
(disclaimed highly descriptive matter, while not ignored, is often “less significant in
creating the mark’s commercial impression”). Its generic or highly descriptive nature
is reinforced in Applicant’s own website, which uses “lift” in these senses:
• Facelift ― Each Reflection Lift is customized to address age-related changes of
the lower face and neck.
• Brow Lift ― A brow lift can be very effective if you are concerned about
drooping eyebrows or deep forehead wrinkles.
• Upper Eyelid Lift ― An upper eyelid lift can help if you have sagging skin on
your upper eyelids.
• Lower Eyelid Lift ― A lower eyelid lift blepharoplasty can help if you have
sagging skin or bags under your eyes.13

12 Examining Attorney’s brief, 10 TTABVUE 4.
13 www.youthfulreflections.com/facial-cosmetic-procedures-nashville/ 7/19/2017, July 19,
2017 Office Action TSDR p. 10 (emphases added).
Serial No. 86902982
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Applicant’s own use of LIFT in this manner is strong evidence of its generic or
highly descriptive nature. See, e.g., In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d
1110, 1112 (Fed. Cir. 1987) (“[applicant’s] own submissions provided the most
damaging evidence that [the word SCREENWIPE is generic].”); In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978) (“Evidence of the
context in which a mark is used ... in advertising material ... is probative of the
reaction of prospective purchasers to the mark.”); In re Educ. Commc’ns, Inc., 231
USPQ 787, 790 (TTAB 1986) (“[A]pplicant’s own highly descriptive usages of the
components of its asserted mark ... is strong evidence of its generic nature….”).
The Examining Attorney has also adduced fourteen third-party registrations for
cosmetic and plastic surgery services, either on the Principal or Supplemental
Register, in which the word LIFT is consistently disclaimed, e.g.:
PINNACLE LIFT (LIFT disclaimed) for “cosmetic and plastic surgery”

BOOMER LIFT (LIFT disclaimed) for “cosmetic and plastic surgery”

LA LIFT (LIFT disclaimed) for “cosmetic and plastic surgery; surgery”

PEARL LIFT (LIFT disclaimed) for “cosmetic and plastic surgery”

SIMONI LIFT (LIFT disclaimed) for “cosmetic and plastic surgery services;
plastic surgery services”

MERMAID LIFT (LIFT disclaimed) for “cosmetic and plastic surgery”14

Third-party registrations can be used in the manner of a dictionary definition to
illustrate how a term is perceived in the trade, industry, or ordinary parlance. RxD

14 June 9, 2016 Office Action TSDR pp. 6-24; July 19, 2017 Office Action TSDR pp. 24-33.
Serial No. 86902982
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Media, LLC v. IP Application Dev. LLC, 125 USPQ2d 1801, 1812 (TTAB 2018). In
this case, the third-party registrations, coupled with Applicant’s own use of the term,
demonstrate that LIFT is generic or highly descriptive in this context. Hence, the
addition of this term as a suffix to Applicant’s mark does not serve to distinguish it
from Registrant’s mark, as it would not be viewed as a source indicator.
Consequently, we find that REFLECTION is the dominant component of
Applicant’s mark. Applicant’s attempt to distinguish REFLECTION from
REFLECTIONS, the stylized entirety of Registrant’s mark, is unavailing, as the
minor difference between the singular and the plural makes no material difference.
Swiss Grill Ltd., v. Wolf Steel Ltd., 115 USPQ2d 2001, 2011 n.17 (TTAB 2015)
(holding “it is obvious that the virtually identical marks [SWISS GRILLS and SWISS
GRILL & design] are confusingly similar”); Weider Publ’ns, LLC v. D & D Beauty
Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014) (finding the singular and plural forms
of SHAPE to be essentially the same mark) (citing Wilson v. Delaunay, 245 F.2d 877,
114 USPQ 339, 341 (CCPA 1957) (finding no material difference between the singular
and plural forms of ZOMBIE such that the marks were considered the same mark)).
Furthermore, both marks convey a similar connotation and commercial
impression: that of using dermatology or plastic surgery services to improve patients’
satisfaction with their appearance, as in the “reflection” they see in the mirror. This
is clearly the intended commercial impression Applicant and Registrant seek to
convey through their marks. Registrant, under its REFLECTIONS mark, advertises
that “We all want to look our best, to be able to look into a mirror and like what we
Serial No. 86902982
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see.”15 Applicant, under his REFLECTION LIFT mark, advertises that “We will work
with you to develop a personalized approach to help you get the reflection you want.”16
The overall commercial impression is thus the same for both marks.
For these reasons, we find under the first DuPont factor that the marks, taken in
their entireties, are more similar than dissimilar. This factor therefore also weighs
in favor of finding a likelihood of confusion.
D. Third-Party Registrations Applicant has Submitted to Show
The Alleged Weakness of the Common Term REFLECTION[S]

Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods [or services].” DuPont, 177 USPQ at 567.
In an attempt to demonstrate that Registrant’s mark is weak, Applicant has made
of record ten total third-party registrations for related or identical services containing
the element ‘REFLECTION’ or ‘REFLECTIONS’:17

15 ReflectionsAtStLukes.com 12/8/2016 Dec. 9, 2016 Response to Office Action TSDR p. 18.
16 youthfulreflections.com/facial-cosmetic-procedures-nashville/ 7/19/2017, July 19, 2017
Office Action TSDR p. 10.
17 Applicant’s December 9, 2016 Response to Office Action, TSDR pp. 19-32; Applicant’s July
7, 2017 Request for Reconsideration, TSDR pp. 29-56.
Serial No. 86902982
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Serial No. 86902982
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Applicant, citing Juice Generation, argues that “[e]vidence of third party use of
similar marks shows that customers in the relevant industry are likely ‘to distinguish
between different marks on the basis of minute distinctions,’” such as Applicant’s
addition of the suffix LIFT to REFLECTION.18 See Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).
Evidence of third-party registrations and use of similar marks may be used to
prove weakness of a mark in two ways: conceptually and commercially. As the Federal

18 Applicant’s brief p. 16, 7 TTABVUE 17.
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Circuit has stated, “A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).” In re
Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010)
quoted in In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB
2016).
With respect to marketplace strength, if a mark, or an element of a mark, is used
extensively in commerce by a number of third parties, that would tend to undermine
its commercial strength, as the consuming public may have become familiar with a
multiplicity of the same or similar marks, such that it can now distinguish them based
on minute distinctions. See, e.g., Palm Bay Imps., 73 USPQ2d at 1691 quoted in
Primrose Ret. Cmtys., 122 USPQ2d at 1033.
But here, where Applicant relies upon its citation to ten third-party registrations,
without more: “Applicant’s citation of third-party registrations as evidence of market
weakness is unavailing because third-party registrations standing alone, are not
evidence that the registered marks are in use on a commercial scale, let alone that
consumers have become so accustomed to seeing them in the marketplace that they
have learned to distinguish among them by minor differences.” In re Morinaga, 120
USPQ2d at 1745. A handful of use-based registrations showing registration of a term
is not particularly persuasive of commercial weakness, especially in the absence of
any evidence of the actual use of the registered marks. In re Mr. Recipe, 118 USPQ2d
at 1089. For this reason, Applicant’s reliance on Juice Generation is misplaced. In
Juice Generation, there were at least twenty-six relevant third-party uses or
Serial No. 86902982
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registrations of record for restaurant services. Juice Generation, Inc., 115 USPQ2d at
1672 n. 1. “The fact that a considerable number of third parties use similar marks
was shown in uncontradicted testimony,” the Federal Circuit found. Id. at 1674. In
the present case, Applicant’s “evidence of third-party use [of the mark] for the same
or similar goods falls short of the ‘ubiquitous’ or ‘considerable’ use of the mark
components present in its cited cases [Juice Generation and Jack Wolfskin].” In re
i.am.symbolic, 123 USPQ2d at 1751.
Applicant argues that Registrant, faced with an office action refusal based on the
first cited registration above, REFLECTIONS for “medical services and health care
services,” successfully argued that there was a crowded field of REFLECTION marks,
in fields more disparate than International Class 44, in which its mark should be
allowed to co-exist.19 Applicant’s argument is not supported by evidence, though. The
file of a cited registration is not automatically of record, and must be made of
record―something Applicant has not done. In re Sela Prods., LLC, 107 USPQ2d 1580,
1583 (TTAB 2013). Applicant thus fails to establish that the cited mark is
commercially weak.
Even where the record lacks proof of the extent of third-party use, third-party
registration evidence may show that a term carries a descriptive or highly suggestive
connotation in the relevant field and is therefore conceptually weak. See Tektronix,
Inc. v. Daktronics, Inc., 534 F.2d 915, 189 USPQ 693, 694-95 (CCPA 1976) (even if
“there is no evidence of actual use” of third-party registrations, such registrations

19 Applicant’s brief p. 19, 7 TTABVUE 20.
Serial No. 86902982
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“may be given some weight to show the meaning of a mark in the same way
that dictionaries are used”). Here, Applicant’s cited third-party registrations have
limited probative value. Some of the third-party registrations it cites are in the
unrelated fields of pharmaceuticals or Alzheimer’s disease services.
Others―identifying health spa services, airbrush skin tanning services, and diet and
nutrition services, inter alia―possibly show use of the term REFLECTION[S] in the
same general manner as Applicant and Registrant: suggesting that certain products
or services will make an improvement in the consumer’s appearance, i.e., the
reflection in the mirror. Nevertheless, these are very few and, viewing the evidence
in its entirety, we do not find the term REFLECTION so conceptually weak as to
obviate a likelihood of confusion between the involved marks being used in connection
with identical plastic surgery services.
The sixth DuPont factor is therefore neutral.
E. Sophistication and Care of Consumers
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567. Applicant argues that “Applicant and Cited products both
are not ‘impulse’ goods or services … as consumers will research and spend time on
offerings made by the respective parties. Cosmetic and dermatological surgical
services are very expensive, and thus not impulse purchases. The average cost for
plastic surgical services ranges from over $4,000 to well over $14,000 depending on
Serial No. 86902982
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the particular surgery.”20 That high expense, coupled with the risk of adverse
complications that attend plastic surgery, would predispose consumers to exercise
care in selecting the surgical services, Applicant argues.21
The Examining Attorney “concedes that purchasers of cosmetic and plastic
surgery procedures are likely to take more care in purchasing such services than they
would for lower-cost, less personalized services. However, such services have become
increasingly more available to the general public, and it is clear from the record that
Applicant and Registrant both advertise their services to the general public. Of
course, it is well settled that the standard of care for purchasing services is that of
the least sophisticated potential purchaser, whom in this case is a member of the
general public.”22
Based on the evidence of record, we believe that the purchasers of cosmetic and
plastic surgery services would not be uniformly sophisticated, but they would likely
exercise a higher level of purchasing care. In Primrose Retirement Communities,
where purchasers chose among various senior living options, the Board reflected that
“[i]nsofar as sophistication of purchasers is concerned, choices … are made by families
and people in all walks of life, at all levels of education and income. We must therefore
presume that … services are offered to both sophisticated and unsophisticated

20 Applicant’s brief p. 14, 7 TTABVUE 15; see July 7, 2017 Response to Office Action TSDR
pp. 20-24.
21 Applicant’s brief p. 15, 7 TTABVUE 16; see July 7, 2017 Response to Office Action TSDR
pp. 26-27.
22 Examining Attorney’s brief, 10 TTABVUE 7, citing Primrose Ret. Cmtys., 122 USPQ2d at
1039.
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consumers….” Primrose Ret. Cmtys., 122 USPQ2d at 1039. There, the Board
concluded that the applicable standard of care for the likelihood of confusion analysis
is that of the least sophisticated consumer. Id. (citing Stone Lion, 110 USPQ2d at
1163). Here, as there, cosmetic and plastic surgery services are offered to people in
all walks of life, and at all levels of education, their only commonality being a desire
to surgically improve their appearance. But the cost and nature of the surgical
procedures, as proven by Applicant and conceded by the Examining Attorney, and
modern society’s focus on personal appearance would tend to impel them toward
careful purchasing. Electronic Design & Sales Inc. v. Electronic Data Sys. Corp., 954
F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992) (“[T]here is always less likelihood
of confusion where goods are expensive and purchased after careful consideration.”).
That care, however, can be outweighed by the similarity of marks and services.
Here, the services are identical or legally identical, and the marks are very similar.
Consumers do not necessarily have the luxury of making side-by-side comparisons
between marks, and must rely upon their imperfect recollections. In re Integrated
Embedded, 120 USPQ2d at 1513; Dassler KG v. Roller Derby Skate Corp., 206 USPQ
255, 259 (TTAB 1980). And “‘[h]uman memories even of discriminating purchasers
... are not infallible.’” In re Research & Trading Corp., 793 F.2d 1276, 230 USPQ 49,
50 (Fed. Cir. 1986) (quoting Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd.,
434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)). Indeed, “careful purchasers who do
notice the difference in the marks will not necessarily conclude that there are
different sources for the goods, but will see the marks as variations of each other,
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pointing to a single source. See, e.g., Kangol Ltd. v. Kangaroos U.S.A., Inc., 974 F.2d
161, 23 USPQ2d 1945, 1946 (Fed. Cir. 1992) (“What is important is not whether
people will necessarily confuse the marks, but whether the marks will be likely to
confuse people into believing that the goods they are purchasing emanate from the
same source.”)” In re Hitachi High-Technologies Corp., 109 USPQ2d 1769, 1774
(TTAB 2014).
For these reasons, the fourth DuPont factor, concerning the sophistication and
care of purchasers, weighs in Applicant’s favor.
F. Actual Confusion
Under the seventh and eighth DuPont factors, we consider the nature and extent
of any actual confusion, in light of the length of time and conditions under which
there has been contemporaneous use of the parties’ subject marks. DuPont, 177
USPQ at 567. In his brief, Applicant asserts that his mark has coexisted with
Registrant’s mark for over two years without evidence of actual confusion. He also
repeats that Registrant’s responses to office actions argued that confusion was
unlikely with the marks cited against it, one of which contained identical literal
elements and legally identical services.23
We agree with the Examining Attorney, however, that Applicant’s assertions are
unsupported by evidence.24 As noted above, the file of a cited registration is not
automatically of record, but must be made of record. In re Sela Prods., LLC, 107

23 Applicant’s brief pp. 19-20, 7 TTABVUE 20-21.
24 Examining Attorney’s brief, 10 TTABVUE 8.
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USPQ2d at 1583. Therefore, his assertion of no actual confusion is just that: an
assertion, unsupported by evidence. Majestic Distilling, 65 USPQ2d at 1205
(uncorroborated statements of no known instances of actual confusion are of little
evidentiary value) quoted in In re Integrated Embedded, 120 USPQ2d at 1515. Absent
such evidence of the nature and extent of Applicant’s and Registrant’s use of their
respective marks in the marketplace, we are unable to gauge the opportunity for
actual confusion to have occurred. See Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1847 (Fed. Cir. 2000); Primrose Ret. Cmtys., 122 USPQ2d at 1039-
40.
Consequently, the seventh and eighth DuPont factors are neutral.
II. Conclusion
Having considered all of the arguments and evidence of record, including the
evidence and arguments that we have not specifically discussed, and all relevant
DuPont factors, we find that: Applicant’s and Registrant’s identified services are
identical or legally identical, and would travel through the same channels of trade to
the same classes of customers, whose sophistication and care would not avoid a
likelihood of confusion; the involved marks, taken in their entireties, are similar in
sight, sound, connotation and commercial impression; the existence of third-party
registrations does not establish that Registrant’s mark is so weak that it is not
entitled to protection against Applicant’s quite similar mark for identical services;
and the asserted lack of actual confusion does not diminish the likelihood of
confusion. Based thereon, we ultimately find that Applicant’s and Registrant’s marks
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so resemble one another as to be likely to cause confusion, or to cause mistake, or to
deceive under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s mark REFLECTION LIFT is
affirmed.