Next Level Health Partners LLC

Trademark Trial and Appeal Board

Sep 4, 2018

No. 87165487 (T.T.A.B. Sep. 4, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 4, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Next Level Health Partners LLC
_____
Serial Nos. 87165228 & 871654871
_____
Ashley Taylor Corbitt of Riley Safer Holmes & Cancila LLP
for Next Level Health Partners LLC.

Lourdes Ayala, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____
Before Bergsman, Shaw, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

1 Because the Board deems the cases to have common questions of fact and of law, and the
relevant portions of the records are largely identical, the appeals are hereby consolidated.
See, e.g., In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012) (The Board sua sponte
consolidated two appeals).
Serial Nos. 87165228 & 87165487
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I. Background
Next Level Health Partners LLC (“Applicant”) seeks registration on the Principal
Register of the marks NEXTLEVEL HEALTH in standard characters, with a
disclaimer of HEALTH, and , each for the following services:
Arranging of managed care contractual services in the
fields of diagnostic imaging, home health care, durable
medical equipment, specialty pharmacy, and diagnostic lab
services; Patient relationship management services in
International Class 35;
Insurance administration of prescription drug benefit
plans in International Class 36; and
Oral medical care services in International Class 44.2
In each application, the Examining Attorney has finally refused registration, as to
the services in Class 44 only,3 under Section 2(d) of the Trademark Act, 15 U.S.C.
§ 1052(d), based on a likelihood of confusion with the registered mark NEXT LEVEL

2 Application Serial Nos. 87165228 and 87165487 were both filed September 8, 2016, based
on alleged first use and use in commerce as of December 15, 2015 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a). The latter application contains a description of the mark,
stating, “The mark consists of stylized words ‘NextLevelHealth’ with the wording ‘NextLevel’
in bold.” Although Applicant’s Brief refers to this mark as “NEXTLEVEL HEALTH &
Design,” there is no design element in the mark.
3 Although during prosecution, Applicant expressed an intention to file requests to divide out
the services in International Classes 35 and 36 (TSDR June 16, 2017 Response to Office
Action), and then stated on request for reconsideration that requests to divide were “filed
herewith” (4 TTABVUE 4), no such requests to divide were filed in the applications. Notes to
the file dated February 11, 2018 indicate that the Examining Attorney contacted Applicant’s
attorney regarding the requests to divide, but in each case, “none was filed.” The February
11, 2018 Denial of Reconsideration in each case so indicates. 5 TTABVUE 2. Applicant
indicates in its Brief that it was informed that the Trademark Electronic Application System
(TEAS) does not allow the submission of request to divide once an appeal is pending. 8
TTABVUE 7. See Trademark Trial and Appeal Board Manual of Procedure § 1205.02 (2018)
(“If a request to divide is submitted after an appeal is instituted, the request should be filed
with the Board through ESTTA, rather than directed to the examining attorney or filed
through the TEAS system.”).
Serial Nos. 87165228 & 87165487
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URGENT CARE in standard characters, with a disclaimer of URGENT CARE,
registered on the Principal Register for “Urgent medical care services” in
International Class 44.4
After the final Office Action, Applicant appealed. The appeal has been briefed. We
affirm the partial refusal as to Class 44 for the reasons set out below.
II. Likelihood of Confusion
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. du Pont de Nemours
& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “du Pont factors”); 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 relatedness of the services. See In re Chatam Int’l Inc., 380 F.2d
1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry
mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences in the marks.”).
Number and Nature of Similar Marks for Similar Services
Because the strength of the cited mark under the sixth du Pont factor impacts our
comparison of the marks, we first address Applicant’s claim under this factor that the
cited mark deserves “a narrow scope of protection” in view of third-party registrations

4 Registration No. 4467765 issued January 14, 2014.
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that include the wording “Next Level.” The Federal Circuit has held that evidence of
extensive registration and use of a term by others for similar goods can be “powerful”
evidence of the term’s weakness. Jack Wolfskin Ausrustung Fur Draussen GmbH &
Co. v. Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir.
2015); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671,
1674 (Fed. Cir. 2015). If the evidence establishes that the consuming public is exposed
to widespread third-party use of similar marks for similar goods, it “is relevant to
show that a mark is relatively weak and entitled to only a narrow scope of protection.”
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1693 (Fed. Cir. 2005). However, Applicant points to no
evidence of third-party actual use, and thus does not demonstrate commercial
weakness from third-party use. Instead, Applicant relies only on two third-party
registrations:5
NEXT LEVEL RECOVERY for Rehabilitation patient care
services which includes inpatient and outpatient care.6
for Optician services; Opticians services;
Opticians’ services.7

5 Applicant also attempted to rely on two other cancelled third-party registrations, but
because of their status as cancelled, we decline to consider them. See Black & Decker Corp.
v. Emerson Elec. Co., 84 USPQ2d 1482, 1487 n.9 (TTAB 2007) (cancelled registrations have
no probative value).
6 June 16, 2017 Response to Office Action at 9-10 (Registration No. 4813924).
7 Id. at 15-16 (Registration No. 4399515).
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These two registrations do not cover the same services as in the cited registration,
and regardless, such a small number of registrations by itself would not rise to the
level required to show that the cited mark is conceptually weak and deserving of less
protection.
Similarity of the Marks
We turn to the du Pont factor comparing the applied-for and cited marks, which
we consider “in their entireties as to appearance, sound, connotation and commercial
impression.” Palm Bay Imports, 73 USPQ2d at 1691 (quoting du Pont, 177 USPQ at
567). The test assesses not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the services offered under the respective marks is
likely to result. Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012); see also Edom Labs., Inc. v. Glenn Lichter, 102 USPQ2d
1546, 1551 (TTAB 2012). Applicant correctly points out that the marks must be
considered in their entireties. However, the analysis may take account of particular
features of marks “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).
Turning first to the comparison of NEXTLEVEL HEALTH and NEXT LEVEL
URGENT CARE, they share the identical – except for the space – component,
NEXTLEVEL/NEXT LEVEL. We find the missing space between the words NEXT
and LEVEL in Applicant’s mark insignificant. See In re Planalytics Inc., 70 USPQ2d
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1453 (TTAB 2004) (the absence of the space in GASBUYER does not create a different
meaning or perception of the term); Stockpot, Inc. v. Stock Pot Rest., Inc., 220 USPQ
52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (“There is
no question that the marks of the parties [STOCKPOT and STOCK POT] are
confusingly similar. The word marks are phonetically identical and visually almost
identical”); In re Best Western Family Steak House, Inc., 222 USPQ 827, 827 (TTAB
1984) (“There can be little doubt that the marks [BEEFMASTER and BEEF
MASTER] are practically identical”). As the first term in both marks, we find that
NEXTLEVEL/NEXT LEVEL “is most likely to be impressed upon the mind of a
purchaser and remembered.” Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d
1895, 1897 (TTAB 1988); see also Palm Bay Imports, 73 USPQ2d at 1692. The
dominance of this shared term is further solidified by the subsequent wording in each
mark, HEALTH, and URGENT CARE, respectively, being disclaimed as descriptive
or generic. The disclaimers diminish the significance of the disclaimed wording in the
comparison of marks because consumers would be unlikely to focus on the descriptive
or generic terminology to distinguish source.8 See In re Dixie Rests., Inc., 105 F.3d
1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); Nat’l Data Corp., 224 USPQ
at 752. Overall, the shared term NEXTLEVEL/NEXT LEVEL, creates a significant
visual resemblance between the two marks and renders them phonetically similar,
an important consideration in the analysis, because consumers could use the

8 See also TSDR December 17, 2016 Office Action at 4 (definition of health); July 13, 2017
Office Action at 2 (definition of urgent care).
Serial Nos. 87165228 & 87165487
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identical-sounding component NEXTLEVEL/NEXT LEVEL in both marks as a
shorthand to “call for” the services. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1911 (Fed. Cir. 2012).
The connotations and commercial impressions of the marks also are close. The
NEXTLEVEL/NEXT LEVEL portion of each mark conveys the same meaning and
impression. Applicant states that “the phrase ‘urgent care’ … has a well-known and
defined meaning in the healthcare industry,”9 thus implicitly conceding that the
reference to HEALTH in its own mark can refer to the broader industry of which
URGENT CARE, in the registered mark, is a part. The record includes definitions of
“urgent care medicine” as “the provision of immediate medical service offering
outpatient care for the treatment of acute and chronic illness and injury”10 and of
“health care” as “the services rendered by members of the health professions for the
benefit of a patient.”11 These definitions also reinforce that urgent care is a type of
health care. Thus, the connotation and commercial impression created by combining
NEXTLEVEL with HEALTH is similar to that created by combining NEXT LEVEL
with URGENT CARE.
Turning next to the comparison of to NEXT LEVEL
URGENT CARE, the wording in each mark remains the same as for Applicant’s
standard character mark and the cited mark, so that much of the prior analysis

9 8 TTABVUE 11 (Applicant’s Brief) (emphasis added).
10 July 13, 2017 Office Action at 2.
11 Id. at 4.
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applies here as well. In this application, though, Applicant’s mark appears in a
stylized font, with NEXTLEVEL in bold, which further reinforces its status as the
dominant portion of the mark. Otherwise, the font in the mark is basic block lettering,
and the degree of stylization is so minimal that it makes no significant contribution
to the appearance and commercial impression. Moreover, the cited standard
character mark could appear in the same font used in Applicant’s stylized word mark.
See Viterra, 101 USPQ2d at 1909 (holding that the specific font style of a mark cannot
serve as the basis to distinguish it from a mark in standard character form).
Considering the marks in their entireties, we find both the applied-for marks
similar to the cited mark. We are not persuaded by Applicant’s arguments about the
differing number of words or syllables in the marks. This du Pont factor weighs in
favor of likely confusion.
Relatedness of the Services
As to the services, they need not be “competitive or intrinsically related” to find a
likelihood of confusion. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC,
857 F.3d 1323, 122 USPQ2d 1733, 1737 (Fed. Cir. 2017). “Instead, likelihood of
confusion can be found ‘if the respective products [or services] are related in some
manner and/or if the circumstances surrounding their marketing are such that they
could give rise to the mistaken belief that they emanate from the same source.’” Coach
Servs., 101 USPQ2d at 1722 (internal citations omitted). In analyzing the second du
Pont factor, we look to the identifications in the applications and cited registration.
See Stone Lion Capital Partners v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
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1157, 1162 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Applicant identifies, in relevant part, “Oral medical care services,” while the cited
registration recites “Urgent medical care services.” On their face, both cover types of
medical services. The record contains evidence of consumer exposure to services of
this type emanating from the same sources under the same marks. For example:
The website of Borrego Health contains a pulldown menu
that includes “Urgent Care” and “Dental Services” among
the options. It further states, “Borrego Health currently
has urgent care locations in both San Diego and Riverside
counties that provide walk-in urgent care services” and
“Borrego Health provides preventive and restorative
dental services for children and adults in San Diego and
Riverside Counties.”12
The website of Chas Health promotes its “high level of
service across our entire organization: medical, dental,
pharmacy and behavioral health. We also offer … an
urgent care which is open late and on weekends.”13
Denver Health’s website describes its “Adult Urgent Care
Center” that “provides urgent care services for those who
are in need of care after business hours or who cannot be
seen by their primary care physician” as well as its “Dental
and Oral Care” that includes “full-service dental and oral
care at five locations in Denver.”14
Eskenazi Heath’s website promotes its “Urgent Care” for
“timely care of acute, non-life-threatening illnesses and
injuries,” as well as its “Dental Services,” offering “routine
dental cleanings, and emergency and preventive dental
services at four locations.”15

12 4 TTABVUE 5-7 (borregohealth.org).
13 4 TTABVUE 9-10 (chas.org).
14 4 TTABVUE 12-14 (denverhealth.org).
15 4 TTABVUE 15-18 (eskenazihealth.edu).
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The website of Premier features information on its “Urgent
Care” and “General & Cosmetic Dentistry.”16
ProHealth Care’s website describes “ProHEALTH Urgent
Care” as “a good choice when you have a health problem
that is not an emergency” and its “ProHEALTH DENTAL”
offering a variety of services like general dentistry,
orthodontics, periodontics, and prosthodontics.17
The record includes other such evidence. In addition, Applicant submitted an article
from USA Today, posted on the American Dental Association website, indicating that
in 2010, 2.1 million patients sought treatment for dental pain in emergency rooms.18
While Applicant pointed to a statement in the article that most hospitals do not
provide “comprehensive dental care” and may not address the “underlying dental
problem,” the article nonetheless notes that many patients seeking dental treatment
in such facilities receive antibiotics and pain medication.19 This certainly could be
considered “oral medical care services” provided by a more general medical facility.
The article also contains links to referral programs for patients seeking dental care
in hospitals and health centers, suggesting that consumers view these types of
facilities as sources of oral medical care.
As we have explained above, the services need not be identical or serve the same
purpose to be related. See, e.g., In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687,
1689 (Fed. Cir. 1993) (automotive parts distributorship services and service station

16 4 TTABVUE 19-23 (premierfamilyhealth.com).
17 4 TTABVUE 24-28; 5 TTABVUE 2-4 (prohealthcare.com & prohealthcaredental.com).
18 June 16, 2017 Response to Office Action at 24-26 (ada.org).
19 Id.
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oil change and lubrication services deemed sufficiently related to cause confusion
because even where the services differ, “the use of identical marks can lead to the
assumption that there is a common source”). Rather, the test is whether consumers
likely would believe such services come from the same source. Applying this test, we
find the marketplace evidence and other evidence persuasive to show that consumers
encounter urgent medical care services such as those identified in the cited
registration coming from the same sources under the same marks as the oral medical
care services such as Applicant has identified.
Overall, we find that the record amply demonstrates the relatedness of the
relevant services. This du Pont factor also weighs in favor of likely confusion.
Trade Channels and Classes of Consumers
The du Pont factor on trade channels and classes of consumers also must be
assessed according to the identifications of the respective services in the applications
and registration at issue, not – as argued by Applicant – on extrinsic evidence of
actual use by Applicant or Registrant. See, e.g., Coach Servs., 101 USPQ2d at 1722;
Octocom, 16 USPQ2d at 1787. “[I]n the absence of specific limitations,” which we do
not have in these identifications, we must assume that the identified services move
through all normal and usual channels of trade for such services and to all normal
potential purchasers. In re i.am.symbolic llc, 866 F.3d 1315, 123 USPQ2d 1744, 1750
(Fed. Cir. 2017); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940 (Fed.
Cir. 1983). The marketplace evidence set out above reflects that urgent medical care
and oral medical care services are promoted together through the same websites, and
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apparently are provided together at some of the same locations, reaching the same
classes of consumers.
Applicant’s argument that the trade channels differ is not supported by the record.
Applicant cites the article from the American Dental Association website discussed
above for the proposition that “dental care services in the U.S. are almost exclusively
provided outside of a traditional acute- or emergent-care facility,”20 but the article
simply does not state or support this proposition.21
Thus, we find that the services travel in the same trade channels to the same
classes of consumers, weighing in favor of the likelihood of confusion.
Purchasing Conditions
Applicant contends that healthcare services “are usually expensive and are
selected with a high degree of care.” However, Respondent points to no evidence
supporting the pricing of such services, and given the breadth of the identifications,
we decline to find that the services are “usually expensive.” As to the purchasing
conditions, the material in the record shows that services of this type are marketed
to ordinary consumers, but we agree that inherent in the nature of healthcare
services – at least certain of them – some degree of care generally would be exercised
in their purchase. Nonetheless, given the similarity of the marks at issue, the
relatedness of the services, as well as the overlap in their trade channels, we are not
convinced that even careful purchasers would avoid confusion. See Weiss Assocs., Inc.

20 8 TTABVUE 16 (Applicant’s Brief).
21 June 16, 2017 Response to Office Action at 24-26 (ada.org).
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v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1841-42 (Fed. Cir. 1990) (even
sophisticated purchasers can be confused by very similar marks).
III. Conclusion
We find Applicant’s marks very similar to the cited mark, and the services at issue
are related, moving in overlapping channels of trade, reaching the same classes of
customers. Regardless of any care in purchasing some of the services, the other du
Pont factors establish that confusion is likely.
Decision: The partial refusal to register Applicant’s marks as to International
Class 44 is affirmed. The applications containing the remaining services in
International Classes 35 and 36, which were not subject to the refusal, will be
published for opposition in due course.