Nexus Property Management

Trademark Trial and Appeal Board

Aug 25, 2015

No. 86404908 (T.T.A.B. Aug. 25, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: August 25, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Nexus Property Management
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Serial No. 86404908
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Luke Brean of Breanlaw, LLC, for Nexus Property Management.

Jeri Fickes, Trademark Examining Attorney, Law Office 107, J. Leslie Bishop,
Managing Attorney.
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Before Quinn, Wolfson and Masiello, Administrative Trademark Judges.

Opinion by Masiello, Administrative Trademark Judge:
Nexus Property Management (“Applicant”) seeks registration on the Principal
Register of the mark NEXUS PROPERTY MANAGEMENT (and design) set forth
below for “Real estate service, namely, rental property management:1

1 Application Serial No. 86404908 was filed on September 24, 2014, under Section 1(a) of
the Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere
at least as early as May 1, 2012 and use in commerce since at least as early as January 1,
2013. No claim is made to the exclusive right to use PROPERTY MANAGEMENT apart
from the mark as shown. Color is not claimed as a feature of the mark.
Serial No. 85937185

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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
Applicant’s mark, as used in connection with Applicant’s services, so resembles the
registered mark REAL ESTATE NEXUS (in standard characters) as to be likely to
cause confusion, or to cause mistake, or to deceive. The cited mark is registered for
“Real estate agencies.”2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on the issue of
likelihood of confusion as set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods and services at issue. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). In this case Applicant and
the Examining Attorney have also submitted arguments and evidence relating to
the sophistication of relevant customers.
A. The services.
We consider first the similarity or dissimilarity of the services at issue as they are
identified in the application and registration at issue. See Octocom Syst. Inc. v.
Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.

2 Registration No. 4060801 issued November 22, 2011. No claim is made to the exclusive
right to use REAL ESTATE apart from the mark as shown.
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1990); Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958); In re
Elbaum, 211 USPQ 639, 640 (TTAB 1981). The services do not have to be identical
or even competitive in order to find that there is a likelihood of confusion. See On-
line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed.
Cir. 2000); In re Iolo Techs., LLC, 95 USPQ2d 1498, 1499 (TTAB 2010). Rather, it is
sufficient that the services are related in some manner or that the circumstances
surrounding their marketing are such that they would be encountered by the same
persons in situations that would give rise, because of the marks, to a mistaken
belief that the services originate from the same source or that there is an
association or connection between the sources of the services. In re Thor Tech Inc.,
90 USPQ2d 1634, 1635 (TTAB 2009).
Applicant argues that rental property management is unrelated to real estate
agency services:
[R]ental property management … generally involve[s]
four areas: Marketing and Financial; Tenant and
Occupancy; Facility and Administration and Risk
Management … rendered to owners of commercial or
residential realty .… Real estate agencies, on the other
hand, or brokers, bring an owner and buyer together to
facilitate a sale or lease o[f] property. An agent’s role ends
once a sale or tenancy agreement is consummated, if ever.
Albeit somewhat related, there is indubitably a gap ..
which comfortably distances the services of the Applicant
from that claimed by the cited mark.3
Thus Applicant, for purposes of distinguishing its services from those of
Registrant, characterizes real estate agency services as facilitating a sale or lease

3 Applicant’s brief, 4 TTABVUE 10.
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by “bring[ing] an owner and buyer together.” Yet the record shows that Applicant
itself provides this very service of facilitation. Applicant’s specimen of use, which is
an advertisement, includes the following in a list of the services offered:
Advertising & Marketing Vacancies
…
- Video Walkthrough syndicated & Published to Nexus
YouTube channel

- Creating ads to be syndicated Handling all responses
to ads for property
…
- Showing units to potential tenants.4
Further, a third-party explanation of the services of rental property management
states as follows: “Tenant and Occupancy – Understanding the needs of the
tenants is important for this function. Getting them to move in is only the
beginning.”5
These services of preparing and disseminating advertisements for vacancies,
meeting with potential tenants, and otherwise assisting with the process of “getting
them to move in” are virtually identical to the services that would be provided by a
real estate agency, as characterized by Applicant. Moreover, from the perspective of
an owner of real estate that needs to fill a vacancy, these services can be performed
by either a real estate agency or a rental property manager. Although the services
of a rental property manager may be more extensive than the real estate agency

4 Application at 9 (specimen of use).
5 “Real Estate Property Management Areas of Responsibility,” at , Applicant’s
response of February 4, 2015 at 19.
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function of finding tenants for vacancies, both types of services include the process
of finding potential tenants for vacant properties.
In order to demonstrate that the services of Applicant and Registrant are related,
the Examining Attorney has made of record advertisements, found on the Internet,
for several real estate businesses:6
Traditions Realty LL: “A FULL SERVICE REAL ESTATE AGENCY,
SPECIALIZING IN SALES, TENANT
PLACEMENT AND PROPERTY MANAGEMENT.”

Gonnering Realty, Inc.: At Gonnering Realty, our REALTORS specialize in
assisting home sellers and buyers with listing,
selling and buying Single-Family Homes, Multi-
Family Homes, Condominiums, Vacant Land, and
Investment Properties …

Gonnering Realty also offers rental property
management services for apartment buildings,
townhouses, single-family homes, and multi-family
homes …

Highland Realty &
Management, Inc.: A “well established real estate agency” listing
“Available Rentals” and offering “Property
Management.”

Emerald Isle Realty: Specializing in “real estate sales and vacation
property management.”

Great American, REALTORS: “We are a Full Service Real Estate Agency offering:
Residential Listings & Sales / Land & Commercial
Services / Rental Property Management / Home
Staging / Relocation Assistance.”

The Examining Attorney has also submitted several third-party registrations that
cover services similar to those in both the application and registration at issue.7

6 Office Action of February 26, 2015 at 8-27.
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Third-party registrations that are based on use in commerce and which individually
cover a number of different services may have some probative value to the extent
that they serve to suggest that the listed services are of a type which may emanate
from the same source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786
(TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB
1988). The following registrations list both real estate agency services and rental
property management services:
Reg. No. Relevant services.
4655228 Commercial and residential real estate agency services; …
Providing real estate listings via the Internet; Real estate
brokerage; Real estate listing; Real estate management of
vacation homes; Real estate management services; … Real
estate service, namely, rental property management; …

4640397 Agencies or brokerage for renting of buildings; Arranging of
leases and rental agreements for real estate; … Real estate
management of vacation homes; Real estate management of
commercial property and residential property; … Real estate
service, namely, rental property management; …

4644800 … real estate agencies; … real estate brokerage; … real estate
service, namely, rental property management; …

4666337 Real estate agencies; Real estate brokerage; … Real estate
management of vacation homes; Real estate service, namely,
rental property management; … Real estate services, namely,
rental, brokerage, leasing and management of commercial
property, offices and office space; …

4662874 Lease of real estate; Real estate agencies; Real estate service,
namely, rental property management.

7 Office Action of January 14, 2015 at 9-22.
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The evidence discussed above is sufficient to show that businesses that describe
themselves as real estate agencies and that broker the sale and leasing of real
estate also sometimes offer the service of managing rental properties. It also shows
that rental property managers consider the process of finding tenants for vacant
units to be a component of the rental property management service. For both real
estate agencies and rental property managers, one component of the service
involves coming into contact with the owners and the prospective tenants of the real
estate, with the general purpose and ultimate goal being that the owners and the
tenants are brought together to enter a contract for rental of the property. In this
regard, at least, the services at issue are highly similar in nature and are marketed
in such a way that customers would readily believe that they are provided by a
single entity. We find that the du Pont factor of the similarity or dissimilarity of the
services favors a finding of likelihood of confusion.
B. The marks.
We next consider the similarity or dissimilarity of the marks at issue in their
entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). “The proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
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Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(citation omitted).
Applicant correctly urges that we must avoid “dissection” of the marks and must
consider the marks at issue in their entireties in reaching our ultimate conclusion.
However, there is nothing improper in giving more or less weight to a particular
feature of a mark, for rational reasons. In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). “Indeed, this type of analysis appears to be
unavoidable.” Id.
In appearance, the two marks have certain distinguishing features. Applicant’s
mark consists of a design with the wording NEXUS PROPERTY MANAGEMENT.
The term NEXUS is visually dominant, because the remaining words of the mark
are in much smaller type. Indeed, Applicant admits in its brief that the term
NEXUS “stands out from the rest of the mark …”8 We give the wording of the mark
more weight as an indicator of source than the graphic design elements because
customers would use the wording (either NEXUS or NEXUS PROPERTY
MANAGEMENT) to request Applicant’s services. In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1911 (Fed. Cir. 2012) (“the verbal portion of a word and design
mark likely will be the dominant portion. … This makes sense given that the literal
component of brand names likely will appear alone when used in text and will be
spoken when requested by consumers.”); see also Sweats Fashions Inc. v. Pannill

8 4 TTABVUE 7.
Serial No. 85937185

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Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1798 (Fed. Cir. 1987); Giant Food, Inc.
v. Nation’s Food Service, Inc., 710 F.2d 1565, 218 USPQ 390 (Fed. Cir. 1983).
The cited mark is REAL ESTATE NEXUS, in standard characters. It differs
visually from Applicant’s mark in a number of ways. Most notably, it lacks the
design elements and the stylized lettering of Applicant’s mark. In addition, the
generic wording in Registrant’s mark, REAL ESTATE, is different from the generic
wording in Applicant’s mark, PROPERTY MANAGEMENT. Applicant contends
that, when looking at Registrant’s mark, “[t]he average consumer will focus and
fixate on ‘REAL’ or ‘REAL ESTATE’ as … the first term in a mark is dominant.”9
However, as the cited mark is registered in standard characters, it is not limited to
any particular form of display, Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ
937, 939 (Fed. Cir. 1983), and it could be displayed in a manner that, like the
graphic elements in Applicant’s mark, emphasizes the term NEXUS and de-
emphasizes the generic term REAL ESTATE. Moreover, as we have noted above, in
Applicant’s mark the term PROPERTY MANAGEMENT is a relatively minor
component, being very much de-emphasized in favor of the distinctive term NEXUS.
In sum, the marks are visually similar to the extent that they both include the
distinctive term NEXUS, but otherwise they are visually different.
In sound, the two marks differ primarily because of the differences in sound
between the generic terms REAL ESTATE and PROPERTY MANAGEMENT.
However, the term NEXUS would be pronounced the same in each mark.

9 Applicant’s brief, 4TTABVUE 7.
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With respect to the meanings of the marks, we note that REAL ESTATE and
PROPERTY MANAGEMENT have different literal meanings. However, it is
abundantly clear from the record that PROPERTY MANAGEMENT is an aspect of
the business of REAL ESTATE. Accordingly, the meanings of these two terms are
similar in that each conveys an idea related to the field of real estate. With respect
to the meaning of the term NEXUS, Applicant has submitted a dictionary definition
indicating that NEXUS means “a relationship or connection between people or
things”; “connection; link”; and “center, focus.”10 The Examining Attorney does not
dispute this meaning.
Considering the meaning of each mark in its entirety, Applicant argues:
Applicant’s mark … conveys to consumers the impression
of high end, top level and sophisticated property
management services, given the depiction of what appears
to be New York City high rises and landmarks. … In this
context, the Applicant’s [mark] is highly suggestive of a
sophisticated level of service akin to 5 star rated realty ….
The cited mark[ ] communicates a group of connected or
linked real estate agents and brokers. … REAL ESTATE
NEXUS branded services have the look and feel of a
generic and typical real estate agency, as the mark is bare
of anything else that would otherwise create a distinctive
commercial impression.11
Overall, we find the two marks to be substantially similar in meaning, especially
when they are considered in the context of the identified services of Applicant and
Registrant. The word NEXUS brings the same suggestion of a “link” or “connection”
to both marks. The other wording in the cited mark, REAL ESTATE, identifies the

10 Definition from , Applicant’s response of February 4, 2015 at 16.
11 Applicant’s brief, 4 TTABVUE 8-9.
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general field of business of both Applicant and Registrant. The other wording in
Applicant’s mark, PROPERTY MANAGEMENT, describes a real estate service
that, as the record shows, is an aspect of the real property-related services of both
Applicant and Registrant. We are not persuaded that Applicant’s mark conveys an
impression that is more “high end” or “sophisticated” than that of Registrant’s
mark.12 Overall, we find that the two marks convey highly similar meanings: a real
property service characterized in some way by a central focus, link, or connection.
While we appreciate the differences in appearance and sound as between the two
marks, we find that in overall commercial impression they are quite similar.
Because of the clear reference to the generic name of the service in each mark, both
marks create the overall commercial impression of NEXUS brand real property
services. We bear in mind that the marks ‘must be considered … in light of the
fallibility of memory …,’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082,
1085 (Fed. Cir. 2014), and that the proper focus is on the recollection of the average
customer, who retains a general rather than specific impression of the marks. Joel
Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013). In
this case, the similarities outweigh the differences. We therefore find that the du
Pont factor of the similarity or dissimilarity of the marks weighs in favor of a
finding of likelihood of confusion.

12 Nothing in the record suggests or explains why customers should perceive the design of
buildings in Applicant’s mark as a depiction of New York City, or of any other recognizable
city. The schematic representation of buildings lacks any feature that would, in our view,
convey the concept of “high end” or “sophisticated” services.
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C. Sophistication of customers.
Applicant argues that confusion between the two marks is unlikely because there
is no overlap between the customers of Applicant and Registrant. “[P]roperty
owners (natural or juridical persons) looking for property managers [ ] are not likely
to seek an agent/broker, and vice versa.”13 Applicant also points to “the
sophistication of the consumers given the cost of the services. Property managers
are paid management fees which can be considerable depending on the nature of
the property, whilst agents work on commission basis.”14
We do not agree with Applicant’s contention that there is no meaningful overlap of
customers as between Applicant and Registrant. As we discussed above in our
comparison of the services at issue, some real estate agents do provide rental
property management. Accordingly, a property owner very well might go to a real
estate agent for property management services. The evidence discussed above also
shows that both real estate agents and property managers perform the service of
finding tenants for vacant properties. Thus, a property owner might go to either a
property manager or a real estate agent to fill vacancies in his rental units.
Similarly, tenants needing to find a rental property might find themselves dealing
with either a real estate agent or a property manager; and in seeking a rental space
from such a service provider, they may neither know nor care whether the provider
is an agent or a property manager.

13 Applicant’s brief, 4 TTABVUE 10.
14 Id.
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Neither do we agree that the relevant customers are necessarily sophisticated.
The evidence shows that rental property managers may provide their services not
only to large real estate businesses, but also to individual home owners who have a
second home or property that they would like to lease. The advertisement of
Gonnering Realty states “Gonnering Realty also offers rental property management
services for … single-family homes …”15 The advertisement for Highland Realty
states, with respect to its rental property management services, “Highland Realty
manages single family homes, condominiums, townhouses, duplexes and triplexes
… Our clients range from individuals with one property to investment firms owning
multiple properties.”16 Applicant’s own advertisement indicates that it “manages all
types of rental property, from single family homes or condos to entire apartment
buildings”; and its fee schedule includes a rate for properties whose monthly rent is
“less than or equal to $850/month.”17 Similarly, it is clear from the record that real
estate agency customers include individuals. We must base our decision “on the
least sophisticated potential purchasers” at issue. Stone Lion Capital Partners, LP
v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014). We
find that there is meaningful overlap between the customers of Applicant and
Registrant and that individual consumers of no special sophistication may have
occasion to use the services of either a real estate agency or of a rental property
manager. Accordingly, this du Pont factor favors a finding of likelihood of confusion.

15 Office Action of February 26, 2015 at 10.
16 Id. at 15.
17 Application at 8-9 (specimen of use).
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D. Conclusion.
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. We find that
Applicant’s mark, as applied to Applicant’s services, so resembles the cited
registered mark, as applied to real estate agency services, as to be likely to cause
confusion, mistake or deception as to the source of Applicant’s services.
Decision: The refusal to register is affirmed.