Renaissance Medical Group, Inc.v.Quincy P. Clark

Trademark Trial and Appeal Board

Aug 23, 2018

No. 92064530 (T.T.A.B. Aug. 23, 2018)

Mailed: August 23, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Renaissance Medical Group, Inc.
v.
Quincy P. Clark
_____

Cancellation No. 92064530
_____

Andrea H. Evans, The Law Firm of Andrea Hence Evans LLC,
for Renaissance Medical Group, Inc.

Bernie Lawrence-Watkins, B. Lawrence Watkins & Associates, P.C.,
for Quincy P. Clark.
_____

Before Cataldo, Kuczma, and Hightower,
Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:
Petitioner Renaissance Medical Group, Inc. petitions to cancel Respondent Quincy
P. Clark’s registration for the mark RENAISSANCE COUNSELING SERVICES, in
standard characters and with “COUNSELING SERVICES” disclaimed, for “mental
health services; psychological counseling” in International Class 44.1 Petitioner
asserts priority and a likelihood of confusion with its mark RENAISSANCE

1 Registration No. 4034531, issued Oct. 4, 2011 on the Principal Register from an application
filed Feb. 23, 2011; Declaration of Use under Trademark Act Section 8, 15 U.S.C. § 1058,
accepted Jan. 13, 2017.
This Opinion Is Not a
Precedent of the TTAB
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TREATMENT CENTER, previously used for addiction treatment and mental health
services, pursuant to Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). We
grant the petition to cancel.
I. Record
The record comprises the pleadings and, without any action by the parties, the file
of the involved registration. Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1).
Each party also submitted the evidence summarized below by Notice of Reliance.
Neither party introduced any testimony.
A. Petitioner’s Evidence
Petitioner submitted the file history for its application, Serial No. 87154020;
certain of Respondent’s discovery responses and produced documents; and letters and
certificates, and Internet and social media printouts, pertaining to Petitioner’s
services. Exhibits A-G to Petitioner’s Notice of Reliance, 14 TTABVUE. Petitioner
also submitted under seal copies of its tax returns from 1996 through 2015,
statements of revenues and expenses from 1996 and 2016, and documents concerning
Petitioner’s transactions with government departments from multiple states in
connection with its services. Id., Exhibits H-I, 15 TTABVUE (confidential).
B. Respondent’s Evidence
At trial, Respondent submitted documents relating to the formation of her
business, Renaissance Counseling Services, LLC, her Georgia state trademark
registration, and provision of services under the RENAISSANCE COUNSELING
SERVICES mark; policing documents, including cease-and-desist letters sent on her
behalf and a complaint for trademark infringement filed by Respondent in 2017 in
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the U.S. District Court for the Northern District of Georgia; and Internet printouts
showing current use of her mark. Exhibits A-H and K to Respondent’s Notice of
Reliance, 17 and 19 TTABVUE. Respondent also submitted under seal Petitioner’s
discovery responses and some of its produced documents. Id., Exhibits L and N, 18
TTABVUE (confidential).2
Without, for example, supporting testimony or a stipulation as to authenticity,
many of the documents submitted by both parties are hearsay as to their truth. No
such documents are cited in, or necessary to, our decision. Nonetheless, neither party
objected to any evidence submitted during trial.3 Where ordinarily inadmissible
hearsay evidence is admitted into evidence without objection, it may be considered
for whatever probative value the finder of fact chooses to give it. E.g., Daniel J. Quirk,
Inc. v. Vill. Car Co., 120 USPQ2d 1146, 1152 n.27 (TTAB 2016).
II. Petitioner’s Standing
Standing is a threshold issue that must be proven by the plaintiff in every
inter partes case. See Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270,
111 USPQ2d 1058, 1062 (Fed. Cir. 2014); see also, e.g., Bell’s Brewery, Inc. v.

2 Respondent filed a copy of the registration certificate and file history for her subject
registration, which as noted supra are automatically of record and should not have been
resubmitted. Exhibits I and J to Respondent’s Notice of Reliance, 17 and 18 (confidential)
TTABVUE. The prosecution history, moreover, was improperly filed under seal although it
is a public record available on USPTO databases. Also, Respondent resubmitted as Exhibit M
confidential documents filed by Petitioner with its Notice of Reliance. 18 TTABVUE
(confidential). The Board discourages duplicative filings. See Trademark Rule 2.122(a), 37
C.F.R. § 2.122(a) (“When evidence has been made of record by one party in accordance with
these rules, it may be referred to by any party for any purpose permitted by the Federal Rules
of Evidence.”); see also, e.g., Nazon v. Ghiorse, 119 USPQ2d 1178, 1181 n.6 (TTAB 2016);
Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 702.02 (2018).
3 Petitioner did object to new evidence proffered with Respondent’s trial brief, discussed infra.
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Innovation Brewing, 125 USPQ2d 1340, 1344 (TTAB 2017). Any person who believes
it is or will be damaged by registration of a mark has standing to file a petition to
cancel. Trademark Act Section 14, 15 U.S.C. § 1064.
The Federal Circuit has enunciated a liberal threshold for determining standing.
“A petitioner is authorized by statute to seek cancellation of a mark where it has both
a real interest in the proceedings as well as a reasonable basis for its belief of
damage.” Empresa Cubana, 111 USPQ2d at 1062 (Fed. Cir. 2014) (quotations
omitted). A “real interest” is a “direct and personal stake” in the outcome of the
proceeding. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1026 (Fed. Cir.
1999). Standing may be established through evidence that a petitioner’s trademark
application has been refused due to a likelihood of confusion with the mark in the
subject registration. See, e.g., Yazhong Investing Ltd. v. Multi-Media Tech. Ventures,
Ltd., 126 USPQ2d 1526, 1532 (TTAB 2018).
Petitioner submitted current printouts from the USPTO Trademark Status &
Document Retrieval (TSDR) electronic database of its pleaded trademark application
Serial No. 87154020 filed August 29, 2016 for RENAISSANCE TREATMENT
CENTER, in standard characters and with “TREATMENT CENTER” disclaimed, for:
addiction treatment services; mental health services;
psychiatric services, in International Class 44; and
case management services, namely, coordinating legal,
medical, physical, social, personal care and psychological
services for those with addiction treatment, mental health,
psychiatric, and other health and human services needs, in
International Class 45.4

4 Exhibit A to Petitioner’s Notice of Reliance, 14 TTABVUE 6-8.
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Petitioner is listed as the current owner of the application. Petitioner also submitted
a USPTO Suspension Notice dated July 15, 2017, continuing a refusal to register the
application under Trademark Act Section 2(d) due to a likelihood of confusion with
subject Registration No. 4034531 and suspending action on the application pending
termination of this proceeding.5 This evidence establishes Petitioner’s standing.
III. Priority
A party claiming prior use of a mark may petition to cancel a registration on the
basis of such prior use pursuant to Section 14 of the Trademark Act. In a cancellation
proceeding, priority must be established by the petitioner. See Brewski Beer Co. v.
Brewski Bros. Inc., 47 USPQ2d 1281, 1284 (TTAB 1998). To establish priority on its
likelihood of confusion claim under Section 2(d) of the Trademark Act, Petitioner
must prove that, vis-à-vis Respondent, it owns “a mark or trade name previously used
in the United States . . . and not abandoned.” Here, Petitioner must prove prior
proprietary rights based on prior common-law use.
To establish priority, the petitioner must show proprietary
rights in the mark that produce a likelihood of confusion.
Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317,
1320, 209 USPQ 40, 43 (CCPA 1981). These proprietary
rights may arise from . . . prior trademark or service mark
use, prior use as a trade name, prior use analogous to
trademark or service mark use, or any other use sufficient
to establish proprietary rights.
Herbko Int’l Inc. v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed.
Cir. 2002).

5 Exhibit A to Petitioner’s Notice of Reliance, 14 TTABVUE 9-11.
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A party challenging registration of a trademark due to a likelihood of confusion
with its own unregistered term cannot prevail unless it shows that its term is
distinctive of its services, whether inherently, through the acquisition of secondary
meaning, or through “‘whatever other type of use may have developed a trade
identity.’” Towers v. Advent Software Inc., 913 F.2d 942, 16 USPQ2d 1039, 1041 (Fed.
Cir. 1990) (quoting Otto Roth, 209 USPQ at 43). Thus, in order to prevail, Petitioner
must establish that its mark RENAISSANCE TREATMENT CENTER is distinctive,
either inherently or through acquired distinctiveness, and that its use and acquisition
of distinctiveness predates Respondent’s acquisition of proprietary rights.
Respondent did not argue that RENAISSANCE TREATMENT CENTER lacks
inherent distinctiveness, and we find it to be inherently distinctive. As to priority,
Respondent contends that it has been using the RENAISSANCE COUNSELING
SERVICES mark since 2005. Respondent’s Brief at 1, 10, 21 TTABVUE 6, 15. Use of
the mark in association with the services identified in the subject registration is not
established by the evidence on which Respondent relies, standing alone: corporate
formation documents for her business, including the business Certificate and Articles
of Organization, dated July 29, 2005.6 We bear in mind, however, the following
instruction from the Court of Appeals for the Federal Circuit:
[W]hether a particular piece of evidence by itself
establishes prior use is not necessarily dispositive as to
whether a party has established prior use by a
preponderance. Rather, one should look at the evidence as
a whole, as if each piece of evidence were part of a puzzle
which, when fitted together, establishes prior use.

6 Exhibit A to Respondent’s Notice of Reliance, 17 TTABVUE 6-9.
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West Fla. Seafood Inc. v. Jet Rests. Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663
(Fed. Cir. 1994). Respondent’s alleged first use date is consistent with her specimen
of use and a cease-and-desist letter and complaint for trademark infringement in
evidence.7 On the facts of this case, the outcome is the same whether we accord
Respondent her claimed first use date in July 2005 or priority as of the date she filed
the application that matured into the subject registration, that is, February 23, 2011.
Petitioner’s responses to Respondent’s interrogatories include the following:8
8. Identify all “addiction treatment services and
mental health services” which Petitioner provides
throughout the United States.
Response:
Since 1997, Petitioner has provided DUI/DWI/
Counseling/Alcohol-Drug Education and related
services under the National Center for Interstate
Compacts. Petitioner has had referral relationships
and provided interstate services for several states
which include but are not limited to California,
Colorado, DC, Del[a]ware, Florida, Indiana, Maine,
Minnesota, New Jersey, New York, North Carolina,
Oklahoma, Oregon, Pennsylvania, South Carolina,
Virginia and West Virginia.
Since 1997, Petitioner has also provided additional
counseling and related services for individuals
referred to its program by agencies in states which
include but are not limited to in North Carolina,
Virginia and DC.

7 See Exhibits F and G to Respondent’s Notice of Reliance, 17 TTABVUE 60-61, 64, 82-83.
8 Exhibit L to Respondent’s Notice of Reliance, 18 TTABVUE 52-69. Although Respondent
indicated in her Notice of Reliance that she is relying on only four interrogatory responses
(Nos. 8, 10, 14, and 28), Respondent submitted all of Petitioner’s responses. In addition, the
entire document was filed under seal even though only one response (No. 18) seems to have
been designated confidential or for attorneys’ eyes only. Because it appears that the quoted
responses were filed under seal incorrectly, we disclose them here. Trademark Rule 2.116(g),
37 C.F.R. § 2.116(g) (“The Board may treat as not confidential that material which cannot
reasonably be considered confidential, notwithstanding a designation as such by a party.”).
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. . . Since 2001, Petitioner has provided counseling
and related services for the Federal Bureau of
Prisons. . . .
10. State each address in the United States at which
Petitioner provides “addiction treatment services
and mental health services” and identify all such
services as conducted at each stated address.
Response:
Starting in 1998 to 2015, Petitioner provided various
on-site training and/or services for the U.S. Courts
in Maryland (2 locations Greenbelt, MD- 6500
Cherrywood Lane and later 9200 Edmondston
Road), District of Columbia (333 Constitution
Avenue, NW Washington, DC) and Virginia (401
Courthouse Square Alexandria, VA). . . .
28. State whether Petitioner conducted or had
conducted for it any search or searches, or
investigation or investigations concerning
availability of the term RENAISSANCE
TREATMENT CENTER for use in connection with
its services.
Response:
Yes, when it filed for a trade name in Maryland in
1996.
We find that these verified interrogatory responses, considered along with certain
documentary evidence, establish a priority date of 1997 for Petitioner’s use of the
inherently distinctive mark RENAISSANCE TREATMENT CENTER in association
with mental health services. See Tzu Wei Chen Food Co. v. Chia-Chi Enters. Inc., 73
F.3d 379, 38 USPQ2d 1932, 1936 (Fed. Cir. 1995) (table decision) (stating that
responses to interrogatories constitute evidential admissions, that is, “admissible
evidence to be considered in combination with all other relevant evidence”).
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The documentary evidence supporting Petitioner’s priority includes a copy of the
following advertising by Petitioner:9

This ad, displaying Petitioner’s mark in association with the offer of addiction
treatment and mental health services, states on its face that it ran March 31, 2004
in a Pennysaver publication, more than a year before Respondent’s claimed first use.

9 Exhibit N to Respondent’s Notice of Reliance, 18 TTABVUE 129. This document, which
appears to be a public advertisement, also was improperly filed under seal.
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Petitioner also submitted a printout from the Internet Archive “Wayback
Machine” (Archive.org). Internet evidence is admissible by notice of reliance only to
show what has been printed, not the truth of what has been printed. Safer Inc. v.
OMS Invs. Inc., 94 USPQ2d 1031, 1040 (TTAB 2010). This printout indicates on its
face that Petitioner was using the name “Renaissance Treatment Center” in
association with the offer of substance abuse treatment and related services as of
January 3, 2005, several months before Respondent’s asserted first use:10

10 Exhibit G to Petitioner’s Notice of Reliance, 14 TTABVUE 124.
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Considering the entire record, we find that Petitioner demonstrated first use of its
mark in association with mental health services at least eight years before the first
use date claimed by Respondent. Petitioner therefore has established priority in its
RENAISSANCE TREATMENT CENTER mark.
Because Petitioner has established priority of use, we proceed to analyze whether
Respondent’s mark is likely to cause confusion with Petitioner’s mark.
IV. Likelihood of Confusion
A presumption of validity attaches to a service mark registration, and the party
seeking cancellation must rebut this presumption by a preponderance of the evidence.
West Fla. Seafood, 31 USPQ2d at 1662. Section 14(1) of the Trademark Act, 15 U.S.C.
§ 1064(1), provides that a cancellation action may be brought on the ground of
likelihood of confusion before a registration is five years old. As noted, the petition
before us was filed on October 3, 2016, within five years from the date the subject
registration issued on October 4, 2011.
We assess all probative facts in evidence that are relevant to the factors bearing
on the issue of likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (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,
however, two key considerations are the similarities between the marks and the
similarities between the goods or services, the first two du Pont factors. See 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 and differences in the
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marks.”). We address in turn each of the du Pont factors to which the parties directed
their arguments.
A. Similarity of the Services, Channels of Trade, and Classes of Customers
We begin with the second, third, and fourth du Pont factors, assessing the
similarity or dissimilarity of the parties’ services; their established, likely-to-continue
trade channels; and their classes of customers. In this case, we compare the services
as set forth in the subject registration to the services in which Petitioner has proven
priority. See, e.g., Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1162 (Fed. Cir. 2014); Bell’s Brewery, 125 USPQ2d at 1344
(finding prior proprietary rights in opposer’s registered and common-law marks).
Respondent’s services are identified as “mental health services; psychological
counseling.” Petitioner has established its priority for services that are identical in
part, i.e., mental health services.11 No presumptions attach to Petitioner’s mark
RENAISSANCE TREATMENT CENTER because it is not registered. However,
because there are no restrictions or limitations in Respondent’s description of
services, we presume that Respondent’s mental health and psychological counseling
services are offered in all channels of trade normal for such services to all potential
customers, including Petitioner’s trade channels, customers, and potential customers.
Am. Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101
USPQ2d 1022, 1028 (TTAB 2011). The second, third, and fourth du Pont factors thus
weigh heavily in support of a finding that confusion is likely.

11 See, e.g., Petitioner’s Response to Respondent’s Interrogatory No. 8, Exhibit L to
Respondent’s Notice of Reliance, 18 TTABVUE 57.
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B. Strength of Petitioner’s Mark
Before comparing the parties’ marks, we analyze the strength of Petitioner’s mark
in order to evaluate the scope of protection to which it is entitled. In determining
strength of a mark, we consider both inherent strength, based on the nature of the
mark itself, and fame or commercial strength. Couch/Braunsdorf Affinity, Inc. v. 12
Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014); see also In re Chippendales
USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength
is measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”).
Here, there is no record evidence of conceptual weakness nor of third-party use or
registration of marks incorporating RENAISSANCE in association with mental
health or related services and thus no evidence of any commercial weakness of
Petitioner’s mark. Respondent for the first time attempted to submit USPTO
database printouts pertaining to marks containing that term as attachments to its
trial brief, but Petitioner objected to their admission as untimely. Reply Brief at 4,
11, 22 TTABVUE 5, 12. We grant Petitioner’s objection and have given the limited
information displayed in those printouts no consideration. See, e.g., Trademark Rule
2.121(a), 37 C.F.R. § 2.121(a) (stating that no evidence shall be presented “except
during the times assigned”); TBMP § 704.05(b) (2018) (“Exhibits and other
evidentiary materials attached to a party’s brief on the case can be given no
consideration unless they were properly made of record during the time for taking
testimony.”). We have found Petitioner’s mark to be inherently distinctive and accord
it the normal scope of protection to which such marks are entitled.
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C. Similarity of the Marks
The first du Pont factor is the similarity of the parties’ marks. In a likelihood of
confusion analysis, we compare the marks in their entireties for similarities and
dissimilarities in appearance, sound, connotation, and commercial impression. Stone
Lion, 110 USPQ2d at 1160. “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. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quotation omitted).
Both Petitioner’s and Respondent’s standard character marks feature the
identical term RENAISSANCE as their first and only distinctive element. We thus
find RENAISSANCE to be dominant in each mark. See, e.g., Palm Bay Imps. Inc. v.
Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005); Presto Prods. Inc. v. Nice-Pak Prods. Inc., 9 USPQ2d 1895, 1897
(TTAB 1988) (stating that “it is often the first part of a mark which is most likely to
be impressed upon the mind of a purchaser and remembered”). The marks are not
identical; each contains two additional terms, i.e., “COUNSELING SERVICES” and
“TREATMENT CENTER.” Because this wording is so highly descriptive in
association with the parties’ mental health services and is disclaimed in the involved
registration and pleaded application, however, it does little to distinguish the marks.
For these reasons, we find Respondent’s mark RENAISSANCE COUNSELING
SERVICES to be highly similar to Petitioner’s mark RENAISSANCE TREATMENT
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CENTER in sight, sound, meaning, and overall commercial impression. The first
du Pont factor also weighs in favor of a finding that confusion is likely.
D. Actual Confusion
Next, we turn to the seventh and eighth du Pont factors: the nature and extent of
any actual confusion, and the length of time and conditions under which there has
been concurrent use without evidence of actual confusion, respectively. A showing of
actual confusion may be highly probative, if not conclusive, of a likelihood of
confusion. Majestic Distilling, 65 USPQ2d at 1205. Yet the opposite is not true; an
absence of evidence of actual confusion carries little weight. Id. (citing J. C. Hall Co.
v. Hallmark Cards, Inc., 340 F.2d 960, 964, 144 USPQ 435, 438 (CCPA 1965)).
Evidence of actual confusion is difficult to obtain and is not necessary to show a
likelihood of confusion. See In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744,
1747 (Fed. Cir. 2017); Weiss Assocs. Inc. v. HRL Assocs. Inc., 902 F.2d 1546, 14
USPQ2d 1840, 1843 (Fed. Cir. 1990); Lebanon Seaboard Corp. v. R&R Turf Supply
Inc., 101 USPQ2d 1826, 1834 (TTAB 2012).
Respondent argues that thirteen years of simultaneous use of the parties’ marks
supports a finding that confusion between them is unlikely. See Respondent’s Brief
at 10-11, 21 TTABVUE 15-16. Yet the absence of actual confusion is not probative
unless it is accompanied by evidence demonstrating that in light of the parties’ actual
business activities, confusion, if likely, would have occurred. See Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000). There is no
such evidence in this proceeding. To the contrary, Respondent argues that the parties’
actual trade channels have not overlapped and their services have been offered in
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different geographic areas. See Respondent’s Brief at 8, 10, 21 TTABVUE 13, 15. We
find the seventh and eighth du Pont factors neutral.
E. Market Interface
Finally, Respondent advances an argument under the tenth du Pont factor, the
“market interface between applicant and the owner of a prior mark: . . . (d) laches and
estoppel attributable to owner of prior mark and indicative of lack of confusion.” In
an order dated January 30, 2017, the Board granted Petitioner’s motion to strike
Respondent’s affirmative defense that the petition to cancel is barred by the equitable
doctrine of laches. 11 TTABVUE 4. The Board found: “This defense is insufficient
because Respondent has set forth no specific allegations of conduct in support thereof
that, if proven, would prevent Petitioner from prevailing on its Section 2(d) claim.”
Id. However, because laches as being indicative of the lack of likelihood of confusion
is one of the subparts of the tenth du Pont factor, we have considered Respondent’s
arguments in our analysis of the issue of likelihood of confusion.
Respondent appears to argue in part that Petitioner’s claim is barred by laches
because it waited too long to apply to register its mark:
The Petitioner has clearly delayed in asserting their right
to their mark. Petitioner has waited over twenty years to
register its mark. There is no question that this is an
extreme delay. In determining whether a party has too long
“slept on its rights” it is necessary to show that the party
knew or should have known that it had a right of action,
yet did not act to assert or protect its rights.
Respondent’s Brief at 11-12, 21 TTABVUE 16-17. Respondent also argues: “However,
the Petitioner has provided no excuse or reasoning to explain its 20-year delay in
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registration and 5-year delay to contest Respondent’s mark. The facts in this case
clearly weigh towards an undue delay with no excuse.” Id. at 14, 21 TTABVUE 19.
The first part of Respondent’s argument is not cognizable. Trademark rights
accrue through use, and a plaintiff need not federally register a mark before asserting
its rights at common law. As for the nearly five years that passed between issuance
of Respondent’s registration and institution of this proceeding, Respondent offers
mere attorney argument in support of its claim of prejudice. See Respondent’s Brief
at 14-15, 21 TTABVUE 19-20. “Attorney argument is no substitute for evidence.”
Enzo Biochem Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir.
2005). In the absence of probative evidence establishing undue prejudice to
Respondent, we find the tenth du Pont factor to be neutral.
V. Conclusion
We have carefully considered all arguments and evidence, including any not
specifically discussed. We have found that the first, second, third, and fourth du Pont
factors strongly support a conclusion that confusion is likely, while the remaining
factors are neutral. We find that Petitioner has carried its burden to establish by a
preponderance of the evidence that Respondent’s mark RENAISSANCE
COUNSELING SERVICES is likely to cause consumer confusion with Petitioner’s
mark RENAISSANCE TREATMENT CENTER when used in association with the
mental health services identified in the subject registration.
Decision: The petition to cancel Registration No. 4034531 is granted.