Right at Home, LLCv.Love Right Home Care, LLC

Trademark Trial and Appeal Board

May 13, 2019

91236795 (T.T.A.B. May. 13, 2019)

THIS OPINION IS NOT A
PRECEDENT OF THE
TTAB

Mailed: May 13, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Right at Home, LLC

v.

Love Right Home Care, LLC
_____

Opposition No. 91236795
_____

Christopher O. Estwick of Abrahams Kaslow & Cassman LLP,
for Right at Home, LLC.

Andrew Flores of Law Offices of Andrew Flores,
for Love Right Home Care, LLC.
_____

Before Kuczma, Hightower and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:

Love Right Home Care, LLC (“Applicant”) seeks registration on the Principal
Register of the mark LOVE RIGHT HOME CARE REFERRAL AGENCY (in standard
characters, with “HOME CARE REFERRAL AGENCY” disclaimed) for “Employment
placement service for professional caregivers” in International Class 35, and “Non-
Opposition No. 91236795

2

medical in-home personal care services for assisting with daily living activities of
persons with disabilities and/or illnesses” in International Class 45.1
In its Notice of Opposition,2 Right at Home, LLC (“Opposer”) opposed registration
of Applicant’s Mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the
basis of alleged likelihood of confusion with its registered RIGHT AT HOME marks
for goods and services in Classes 16, 35, 42, 44 and 45, as noted in the chart below.
In its Amended Answer,3 Applicant denies the salient allegations in the Notice of
Opposition.4
I. Accelerated Case Resolution
In this Opposition, the parties agreed to proceed by the streamlined procedure of
Accelerated Case Resolution (“ACR”), for which they are to be commended,5 and
stipulated (with the Board’s approval)6 as follows:
1. In lieu of trial, these consolidated proceedings will be tried via
motion and the Board may resolve any issues of material fact in making the
final determination on the merits.

1 Application Serial No. 87429425, filed on April 28, 2017, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging April 25, 2012 as the date of first use of the
mark and first use of the mark in commerce.
2 1 TTABVUE. References to the pleadings, the evidence of record and the parties’ briefs refer
to the Board’s TTABVUE docket system. Coming before the designation TTABVUE is the
docket entry number; and coming after this designation are the page references, if applicable.
3 10 TTABVUE.
4 Applicant also asserted two affirmative defenses in its Amended Answer but did not pursue
them in its ACR Brief, so they are waived. See Harry Winston, Inc. v. Bruce Winston Gem
Corp., 111 USPQ2d 1419, 1422 (TTAB 2014). (“As applicant did not pursue the affirmative
defenses of failure to state a claim and unclean hands, either in its brief or by motion, those
defenses are waived.”).
5 See TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (“TBMP”)
§§ 528.05(a)(2) (2018) for a further explanation of this process.
6 13 TTABVUE (Stipulation). 14 TTABVUE (Board Order approving Stipulation).
Opposition No. 91236795

3

2. The parties agree that the Board may resolve genuine disputes of
material fact and issue a final ruling based on the parties’ submissions in
accordance with the rules for ACR.
3. With reference to documentary evidence, both sides may establish
foundation or authenticity through declarations (without a need for prior
disclosure of the exhibits). Each side will have the right to cross-examine
any declarants used for foundational purposes.
4. Testimony from each side will be adducible through declarations,
with the opposing side having a right to cross-examine the declarant(s) if it
so chooses.
5. Responses to discovery will be deemed admissible by this Joint
Stipulation.
6. Any of Opposer’s “… Right at Home …” registrations with the
United States Patent and Trademark Office will be admissible pursuant to
Trademark Rule 2.122(d), 37 CFR 2.122(d).
7. The parties agree to use a briefing procedure similar to summary
judgment practice, thereby doing away with the significantly more
cumbersome procedure in the Board’s rules for briefing. All exhibits shall
be attached to the summary judgment papers. Opposer will file the initial
motion for summary judgment, followed by Applicant’s response and
Opposer’s reply.
8. Page limits for the parties’ summary judgment briefs will be the
same as the page limits permitted for trial briefs under Trademark Rule
2.128(b).
9. There will be no requirement upon the parties to submit separate
statements of material fact as part of their summary judgment briefs.
The parties also stipulated to certain facts, including the following:

a. Opposer’s marks (the “Right at Home Marks”) as registered
are set forth hereto on Exhibit “A”.7 Opposer has used the “…
Right at Home …” Marks continuously in connection with each

7 Opposer did not accurately identify its pleaded registrations in its Notice of Opposition, the
parties’ ACR Stipulation or in its ACR briefs, but did submit records from the USPTO’s
Trademark Electronic Search System (“TESS”) electronic database of the U.S. Patent and
Trademark Office (“USPTO”) showing both the current status of and title to each pleaded
registration. The chart that follows below contains the correct particulars of Opposer’s
pleaded registrations.
Opposition No. 91236795

4

Mark’s respective goods/services since the respective dates set
forth on Exhibit “A”.
b. Other than the “Love Right …” mark that Applicant seeks to
register in this case, Applicant does not own any trademark
applications or trademark registrations in the United States
that include in whole or in part the phrase “Right Home Care”.
Exhibit “A” to Parties’ ACR Stipulation
Mark / Register Reg. No. / Reg. Date First Use Services
THE RIGHT CARE,
RIGHT AT HOME

Principal Register

4680962
February 3, 2015
September 3, 2013 Class 44: Health care
services, namely, home
health care services in the
nature of providing
assistance with general
medical care.

Class 45: Providing non-
medical personal care
assistance with activities of
daily living, namely, meal
preparation, light exercise
assistance, clothing and
bathing assistance, and
cleaning assistance.
THE CARE THAT'S
RIGHT, AT HOME

Principal Register

4466267
January 14, 2014
May 31, 2013 Class 44: Health care
services, namely, home
health care services in the
nature of providing
assistance with general
medical care.

Class 45: Providing non-
medical personal care
assistance with activities of
daily living, namely, meal
preparation, medication
reminders, light exercise
assistance, clothing and
bathing assistance, and
cleaning assistance.

Principal Register

4826304
October 6, 2015
January 27, 2015 Class 35: Franchise
services, namely, offering
business management
assistance in the
establishment and
operation of home health
care services.
Class 44: Health care
services, namely, home
Opposition No. 91236795

5

Mark / Register Reg. No. / Reg. Date First Use Services
health care services in the
nature of providing
assistance with general
medical care.
Class 45: Providing non-
medical personal care
assistance with activities of
daily living, namely, meal
preparation, medication
reminders, light exercise
assistance, clothing and
bathing assistance, and
cleaning assistance.

Principal Register

4817562
September 22, 2015
January 27, 2015 Class 35: Franchise
services, namely, offering
business management
assistance in the
establishment and
operation of home health
care services.
Class 44: Health care
services, namely, home
health care services in the
nature of providing
assistance with general
medical care.
Class 45: Providing non-
medical personal care
assistance with activities of
daily living, namely, meal
preparation, medication
reminders, light exercise
assistance, clothing and
bathing assistance, and
cleaning assistance.

CARING RIGHT AT
HOME

Principal Register

3220065
March 20, 2007
December 1997 Class 16: Newsletters about
obtaining and providing
information, advice and
support for adult care
giving and other issues
related to the care of the
aging and disabled.

Opposition No. 91236795

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Mark / Register Reg. No. / Reg. Date First Use Services
CARING RIGHT AT
HOME

Principal Register

4484604
February 18, 2014
July 1, 2006 Class 41: On-line
publications, namely,
newsletters and magazines
featuring the subject of
advice and support for care
giving to the aging and
disabled.

RIGHT AT HOME

2569014
May 14, 2002
September 1, 1995 Class 42: In home care and
assistance services, namely,
meal preparation,
medication reminders, light
exercise, dressing and
bathing assistance,
cleaning, transportation,
shopping and errands.
RIGHT AT HOME

Principal Register
2683630
February 4, 2003
September 1, 2001 Class 44: Home health care
services.
II. The ACR Record
Opposer submitted its confidential (un-redacted) and non-confidential (redacted)
ACR Brief and evidence, 16 TTABVUE, as one combined (confidential) filing.
Opposer has 30 days from the date of this Order to re-submit its confidential and non-
confidential ACR Briefs and evidence as two separate filings, failing which its entire
filing will become part of the non-confidential public record.
The ACR record consists of the pleadings and, by operation of Trademark Rule
2.122(b), 15 C.F.R. § 2.122(b), the file of Applicant’s involved application. In addition,
pursuant to the parties’ ACR Stipulation, the parties introduced the following
evidence:
Opposition No. 91236795

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A. Opposer’s Evidence
1. TESS records showing the current status of and title to Opposer’s pleaded
registrations.8 Pursuant to Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1),
these records were already received in evidence and made part of the record
when, as noted above, they were submitted with the Notice of Opposition.
2. Affidavit of Amy Stanosheck,9 Opposer’s Director of Standards and Quality,
through which Opposer introduced the following exhibits into the record:
a. Exhibit A – a listing of Opposer’s annual sales and marketing expenses for
2014 – 2018, including a percentage breakdown of the types of media where
Opposer directs its advertising (Confidential).
b. Exhibit B – examples of Opposer’s use of its trademarks in various forms of
print advertising.
c. Exhibit C – a listing of Opposer’s monthly promotional expenditures and
media outlets for its cable television advertising for 2016 – 2017
(Confidential).
d. Exhibit D – an undated list of the services provided by Opposer.
e. Exhibit E – a screenshot of the homepage of Applicant’s website, accessed
on November 30, 2018.
f. Exhibit F – a screenshot of services provided by Applicant promoted on its
website, accessed on November, 30, 2018.
g. Exhibit G – an undated digital advertising brochure of Applicant.
h. Exhibit H – Screenshots of Love Applicant’s social media advertising
(Facebook, Twitter, Linkedln and Google+), accessed on November 29, 2018.
i. Exhibit I – Screenshots of Opposer’s social media advertising (Facebook,
Linkedln, YouTube, Twitter, and Opposer’s website pages), accessed on
November 16, 2018.

8 1 TTABVUE (Notice of Opposition) Exhibits A-I, and 16 TTABVUE (Opposer’s ACR Brief)
Exhibit A. It was not necessary to introduce this evidence twice.
9 16 TTABVUE.
Opposition No. 91236795

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j. Exhibit J – Links to a compilation of awards and recognition received by
Opposer from Entrepreneur, Forbes, and Franchise Business Review, as well
as links to the relevant web pages.10
k. Exhibit K – a printout from an article posted on the Home Health Care News
website regarding Opposer’s ranking on the Entrepreneur magazine’s
Franchise 500 list for 2018. The article is dated January 23, 2018, and was
accessed on November 30, 2018.
B. Applicant’s Evidence11
1. Exhibit A – State of California, Secretary of State, Limited Liability Company,
Articles of Incorporation for Love Right Home Care, LLC (Applicant) – filed
April 25, 2012.
2. Exhibit B – A copy of Applicant’s Complaint filed in the Superior Court of the
State of California against a third party, alleging trademark infringement,
unfair business practices and other related state law claims.
3. Exhibit C – an article entitled, There Are Not Enough Personal Care Aides to
Care for Frail Seniors. What Will We Do?, Forbes, dated December 6, 2018,
accessed on December 30, 2018.
4. Exhibit D – Declaration of Andrew Flores, Applicant’s counsel.
5. Exhibit E – Third party web sites of in-home senior care companies whose
company names include one or more of the terms “RIGHT,” “HOME” and/or
“CARE”.12
6. Exhibit F – Stylized use of Applicant’s Mark: LOVE RIGHT HOME CARE
REFERRAL AGENCY.
III. Standing and Priority
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. Inc., 753 F.3d 1270,

10 A mere listing of links to the web sites of organizations that have given awards to and
bestowed recognition upon Opposer is insufficient to introduce the underlying materials into
evidence. See, e.g., In re Olin Corp., 124 USPQ2d 1327, 1332 n.15 (TTAB 2017); Edom Labs.
Inc. v. Lichter, 102 USPQ2d 1546, 1150 (TTAB 2012). In this case, since we do not have any
documentation or declaration/affidavit testimony discussing the awards and recognition to
Opposer, or the basis for their issuance, they are of minimal evidentiary value.
11 17 TTABVUE (All of Applicant’s Exhibits were submitted as attachments to its ACR Brief).
12 These third-party website excerpts lack access or print dates and URLs. As such, they carry
minimal probative value.
Opposition No. 91236795

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111 USPQ2d 1058, 1062 (Fed. Cir. 2014); John W. Carson Found. v. Toilets.com Inc.,
94 USPQ2d 1942, 1945 (TTAB 2010). An Opposer may establish its standing by
properly making of record its pleaded registrations, if it is the basis for a likelihood
of confusion claim that is not wholly without merit. Lipton Indus., Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982); see also Coach Servs.
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1727-28 (Fed. Cir.
2012). Here, Opposer properly made its “… RIGHT AT HOME …” registrations of
record under Trademark Rule 2.122(d)(1), establishing its standing.
Because Opposer’s pleaded registrations are of record, priority is not at issue as
to the marks, goods and services covered by the registrations. King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974); L’Oreal
S.A. v. Marcon, 102 USPQ2d 1434, 1436 n.7 (TTAB 2012).
IV. Likelihood of Confusion
Our determination under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), is
based on an analysis of all probative facts in evidence that are relevant to the factors
bearing on the likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (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. 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
Opposition No. 91236795

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characteristics of the goods [or services] and differences in the marks.”). We make
that determination on a case-by-case basis, On-Line Careline Inc. v. Am. Online Inc.,
229 F.3d 1080, 56 USPQ2d 1471, 1474 (Fed. Cir. 2000), aided by the application of
the factors set out in du Pont; and we must consider each du Pont factor for which
there is evidence or argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d
1160, 1162 (Fed. Cir. 2019); see also Hewlett-Packard Co. v. Packard Press, Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002) (noting the likelihood of confusion
analysis “considers all du Pont factors for which there is evidence of record” but may
focus on dispositive factors). Opposer bears the burden of proving a likelihood of
confusion by a preponderance of the evidence. Weider Publ’ns, LLC v. D & D Beauty
Care Co., LLC, 109 USPQ2d 1347, 1353 (TTAB 2014).13
A. Opposer’s Assertion of Multiple Registered Marks
Opposer claims that Applicant’s applied for mark is likely to be confused with
eight of Opposer’s registered marks. We focus our likelihood of confusion analysis on
Opposer’s Registration No. 4680962 for the mark THE RIGHT CARE, RIGHT AT
HOME for:
Class 44: Health care services, namely, home health care services in the
nature of providing assistance with general medical care.

Class 45: Providing non-medical personal care assistance with activities of
daily living, namely, meal preparation, light exercise assistance, clothing
and bathing assistance, and cleaning assistance.

13 14 TTABVUE 1. The standards of proof in an ACR proceeding are the same as the
standards of proof in a traditional Board proceeding. In either an opposition or cancellation,
the burden of proof remains with the plaintiff, which must establish its case by a
preponderance of the evidence. TBMP § 702.04(a); Bond v. Taylor, 119 USPQ2d 1049, 1051
(TTAB 2016).
Opposition No. 91236795

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THE RIGHT CARE, RIGHT AT HOME mark, along with the identified services,
is the most similar to Applicant’s LOVE RIGHT HOME CARE REFERRAL AGENCY
mark and services. If we find that there is a likelihood of confusion with THE RIGHT
CARE, RIGHT AT HOME mark, there is no need for us to consider the likelihood of
confusion with Opposer’s other marks. Conversely, if we find there is no likelihood of
confusion with THE RIGHT CARE, RIGHT AT HOME mark, we would find no
likelihood of confusion with Opposer’s other pleaded marks because the other marks:
1) do not incorporate all of the terms “RIGHT,” “HOME” and “CARE,” 2) incorporate
arguably distinguishing design/stylization elements, and/or 3) are registered in
connection with less closely related goods or services. See Fiserv, Inc. v. Electronic
Transaction Systems Corp., 113 USPQ2d 1913, 1917 (TTAB 2015); In re Max Capital
Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
B. The Parties’ Services and Channels of Trade
1. Relationship between the Parties’ Services
When we consider the relationship between the parties’ services, the second du
Pont factor, 177 USPQ at 567, we are bound by the identifications in the subject
application and Opposer’s Registration No. 4680962. See In re Detroit Athletic Co.,
903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014);
Octocom Sys., Inc. v. Houston Comput. Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990).
Opposition No. 91236795

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Applicant’s Class 45 services include “non-medical in-home personal care services
for assisting with daily living activities of persons with disabilities and/or illnesses,”
while Opposer’s Class 44 and Class 45 services include “health care services, namely,
home health care services in the nature of providing assistance with general medical
care” and “providing non-medical personal care assistance with activities of daily
living, namely, meal preparation, light exercise assistance, clothing and bathing
assistance, and cleaning assistance.” Although worded with slight differences, the
identified services overlap to the extent that they both include non-medical personal
care assistance with activities of daily living.
Applicant’s Class 35 services are “employment placement service for professional
caregivers.” Here, Applicant procures the personnel who provide the services
identified in Class 45 of the Application and the services identified in Classes 44 and
45 of Opposer’s Registration No. 4680962. Thus, Applicant’s Class 35 are related to
Opposer’s services in Classes 44 and 45.
Where, as here, the parties’ services are related and overlapping in part, likelihood
of confusion must be found for the entire class when relatedness is established for
any item encompassed by the identification of services in a particular class in the
application. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ
986, 988 (CCPA 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745
(TTAB 2014). Moreover, the parties agree in their ACR briefs that (in connection with
Opposition No. 91236795

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their respective marks) they provide “sufficiently related services” in “arguably … the
same or similar commercial space.”14
The second du Pont factor favors a finding of likely confusion.
2. Relationship between the Parties’ Channels of Trade
Regarding “[t]he similarity or dissimilarity of established, likely-to-continue trade
channels[,]” the third du Pont factor, 177 USPQ at 567, “absent restrictions in the
[opposed] application and [asserted] registration, goods and services are presumed to
travel in all appropriate trade channels to all potential purchasers of such goods.”
Royal Appliance Mfg. Co. v. Minuteman Int’l, Inc., 30 Fed. Appx. 964, 969 n.1 (Fed.
Cir. 2002); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846
(Fed.Cir.2000). In fact, “the law require[s] the Board to make precisely this
presumption in its du Pont analysis.” Id. Thus, because 1) Applicant’s Class 45
services and Opposer’s Class 44 and 45 services overlap, and 2) there are no
restrictions in either of the parties’ identifications of services otherwise
distinguishing them from one another, we must presume that the channels of trade
and classes of purchasers for these services also overlap.
With respect to Applicant’s Class 35 services, we find that an “employment
placement service for professional caregivers” connects two classes of customers:
professional caregivers seeking placement, and family members seeking caregivers.
Consumers in the latter category overlap at least with purchasers of Opposer’s

14 16 TTABVUE 14; 17 TTABVUE 8.
Opposition No. 91236795

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personal care assistance services in Class 45. Opposer also submitted evidence that
both parties market their services through the Internet and social media.
The third du Pont factor favors a finding of likely confusion.
C. The Strength of Opposer’s Marks

We next consider the strength of Opposer’s marks, the fifth du Pont factor, 177
USPQ at 567. “In determining strength of a mark, we consider both its inherent
strength based on the nature of the mark itself and its commercial strength, based
on the marketplace recognition value of the mark.” 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).”).
1. Inherent Strength of Opposer’s Mark
Applicant asserts that Opposer’s “mark” (Applicant does not say which one) is
generic and non-distinctive.15 To the extent this argument constitutes an attack on
the validity of Opposer’s registered mark in Registration No. 4680962, the Board
cannot entertain such an attack absent a counterclaim or petition to cancel the
registration. Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1549 n.6 (TTAB 2012)
(Board will not consider collateral attack on the validity of opposer’s pleaded
registration absent a properly filed counterclaim).

15 17 TTABVUE 5.
Opposition No. 91236795

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On the other hand, we cannot ignore the statement in Opposer’s ACR Brief that
“the Right at Home Trademarks and the Love Right Home Care mark all provide
consumers with a commercial impression of providing quality home care.”16 “Marks
that are merely laudatory and descriptive of the alleged merit of a product are also
regarded as being descriptive. ... Self-laudatory or puffing marks are regarded as a
condensed form of describing the character or quality of the goods.” In re Bos. Beer
Co., L.P., 198 F.3d 1370, 53 USPQ2d 1056, 1058 (Fed. Cir. 1999) (citing 2 J. Thomas
McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 11:17 (4th ed.
1996)); In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001).
Thus, Opposer’s mark THE RIGHT CARE, RIGHT AT HOME is laudatory in
character and inherently weak because it comprises self-laudatory puffery as to the
quality of its home health care services. However, it is settled that “likelihood of
confusion, mistake or deception is to be avoided as much between weak marks as
between strong marks.” In re Colonial Stores, Inc., 216 USPQ 793, 795 (TTAB 1982)
(citing King Candy Co., 182 USPQ at 109); see also Top Tobacco, L.P. v. North Atlantic
Operating Co., Inc., 101 USPQ2d 1163, 1173 (TTAB 2011) (“even a weak mark is
entitled to protection against the registration of a very similar mark for closely
related goods”)).

16 16 TTABVUE 13-14.
Opposition No. 91236795

16

2. Third-Party Use of Similar Marks
The sixth du Pont factor considers “the number and nature of similar marks in
use on similar goods.” 177 USPQ at 567. “Evidence of third-party use of similar marks
on similar goods 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).
In an effort to demonstrate that Opposer’s mark has been weakened by third-party
use of similar marks, Applicant submitted the web site home pages of five home care
providers having company names similar to Applicant and Opposer.17 However, as
explained above, this evidence has minimal probative value because it was not
properly authenticated.
Even if Applicant did properly introduce this third-party use into evidence, far
more proof than Applicant provided would be necessary to show “sufficient [that is,
substantial] evidence of third-party use of similar marks [demonstrating] …
customers ... have been educated to distinguish between different ... marks on the
basis of minute distinctions.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (internal quotes omitted); see also Jack
Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (noting “extensive
evidence of third-party uses and registrations of paw prints indicat[ing] that
consumers are not as likely confused by different, albeit similar looking, paw prints”).

17 17 TTABVUE Flores Decl., ¶ 20 and Exh. E.
Opposition No. 91236795

17

Thus, while we find that Opposer’s THE RIGHT CARE, RIGHT AT HOME mark
is inherently weak, the record does not establish that it has been weakened in the
marketplace by third-party use of similar marks for similar services. We thus afford
Opposer’s mark the normal zone of protection, potentially sufficient to prevent
registration of a confusingly similar mark for overlapping services.
We find the sixth du Pont factor to be neutral.
3. Marketplace Strength of Opposer’s Mark;
and the Contention that its Mark is Famous
Opposer asserts that its marks (even though, here, we concentrate on only one of
Opposer’s marks)18 are famous under the fifth du Pont factor, 177 USPQ at 567. The
fame of the registered mark plays a “dominant” role in the du Pont analysis, as
famous marks “enjoy a wide latitude of legal protection.” Recot, Inc. v. M.C. Becton,
214 F.3d 1322, 54 USPQ2d 1894, 1897 (Fed. Cir. 2000); see also Palm Bay Imports,
73 USPQ2d at 1694 (“[A] strong mark . . . casts a long shadow which competitors
must avoid.” (citation omitted)). A famous mark is one that has “extensive public
recognition and renown.” Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 63
USPQ2d 1303, 1305 (Fed. Cir. 2002). Fame for purposes of likelihood of confusion is
a matter of degree that varies along a spectrum from very strong to very weak. Joseph
Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733,
1734 (Fed. Cir. 2017). Relevant factors include sales, advertising, length of use of the

18 Opposer’s evidence does not break out its sales or advertising numbers by each of its
asserted marks.
Opposition No. 91236795

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mark, market share, brand awareness, licensing activities, and variety of goods
bearing the mark. Coach Servs., 101 USPQ2d at 1720.
Opposer introduced evidence of marketplace strength (otherwise known as
acquired distinctiveness or secondary meaning)19 in its “… RIGHT AT HOME …”
marks through widespread use. This evidence includes that Opposer has nearly 500
franchised locations throughout the United States offering services in connection
with the marks, millions of dollars in annual advertising expenditures and hundreds
of millions of dollars in sales over the past five years,20 prevalent advertising in print,
national broadcast television, cable and radio outlets, online and social media
presence, and industry awards.21 While Opposer’s advertising and sales numbers are
not extremely high and were provided without marketplace context,22 collectively

19 “Acquired distinctiveness, i.e., ‘[s]econdary meaning,’ ‘is a term of art which denotes that
there is an association formed in the minds of the consumers between the mark and the
source or origin of the product.’ (citation omitted). ‘To determine whether a mark has acquired
secondary meaning, … [the Board] consider[s]: advertising expenditures and sales success;
length and exclusivity of use; unsolicited media coverage; copying of the mark . . . ; and
consumer studies.’ (citation omitted).” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d
965, 128 USPQ2d 1370, 1377 (Fed. Cir. 2018).
20 Opposer designated its advertising and sales numbers as confidential. Therefore, we
discuss them here only in general terms.
21 16 TTABVUE, Stanosheck Affidavit, ¶¶ 4, 7, 9-11, 13-14 and 19-21, Exhibits A-C, H-J.
22 See Bose v. QSC Audio, 63 USPQ2d at 1309 (context surrounding the raw statistics may
be necessary (e.g., the substantiality of the sales or advertising figures as compared to those
providing comparable products or services, market share for the products or services, and the
reputation of the marked products or services); see also Omaha Steaks Int’l, Inc. v. Greater
Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1690 (Fed. Cir. 2018) (“Market share
is but one way of contextualizing ad expenditures or sales figures. … [U]nderstanding the
type of advertising [i]s key to contextualizing the numbers to arrive at a proper
understanding of whether customers would recognize the mark.”).
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Opposer’s evidence suffices to demonstrate that its “… RIGHT AT HOME …” marks
have attained a degree of marketplace recognition.
In this proceeding, Opposer has provided evidence of substantial, but not
tremendously high, advertising expenditures and sales for the past five years.
However, Opposer has not provided market share information, quantifiable brand
awareness data, proof of any licensing activities, or evidence of the variety of services
offered in connection with its marks outside of its core market (in-home health care
and personal supports). Thus, insufficient evidence has been made of record to
demonstrate that any of Opposer’s marks, and in particular Opposer’s mark of
Registration No. 4680962, qualify as “famous” for purposes of a likelihood of confusion
analysis.
4. Opposer’s Claim that it Owns a “Family of Marks”
In its ACR Brief, Opposer asserts it “has a family of marks sharing the common
feature of the term ‘Right at Home.’”23 Opposer, however, did not plead a “family of
marks” theory in its Notice of Opposition; nor do we find that it was tried by consent
of the parties. Therefore, we do not consider this theory. Wise F&I, LLC v. Allstate
Ins. Co., 120 USPQ2d 1103, 1107 (TTAB 2016); Productos Lacteos Tocumbo S.A. de
C.V. v. Paleteria La Michoacana, Inc., 98 USPQ2d 1921, 1927 (TTAB 2011).
D. Sophistication of Target Consumers for the Parties’ Services
Under the fourth du Pont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”

23 16 TTABVUE 22-23.
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du Pont, 177 USPQ at 567. We are mindful that where, as here, the services of the
parties overlap and are without limitation as to the trade channels or classes of
consumers, we may presume that the marketing channels of trade and targeted
classes of purchasers are the same, Royal Appliance, 30 Fed. Appx. at 969 n.1; Am.
Lebanese Syrian Assoc. Charities Inc. v. Child Health Research Inst., 101 USPQ2d
1022, 1028 (TTAB 2011), and base our analysis “on the least sophisticated potential
purchasers,” Stone Lion, 110 USPQ2d at 1163.
Circumstances suggesting care in purchasing may tend to minimize the likelihood
of confusion. du Pont, 177 USPQ at 567; In re N.A.D., Inc., 754 F.2d 996, 224 USPQ
969, 971 (Fed. Cir. 1985) (confusion is unlikely when sophisticated purchasers are
buying goods with great care). Nonetheless, the fact that purchasers are sophisticated
or knowledgeable in a particular field does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or immune from source
confusion. Stone Lion, 110 USPQ2d at 1163-64; Top Tobacco LP v. N. Atl. Operating
Co. Inc., 101 USPQ2d at 1171.
The parties agree that their services are purchased by sophisticated target
consumers (family members of the elderly, frail, or disabled) with a great deal of
care.24 The fourth du Pont factor weighs against a finding of likely confusion.
E. Absence of Actual Confusion
The seventh du Pont factor in the likelihood of confusion analysis is “[t]he nature
and extent of any actual confusion” between the parties’ marks, while the eighth

24 16 TTABVUE 22; 17 TTABVUE 7-8.
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factor is “[t]he length of time during and conditions under which there has been
concurrent use without evidence of actual confusion.” 177 USPQ at 567. In its ACR
Brief, Applicant asserts that there has been six years of concurrent use of the parties’
marks with no evidence of actual confusion.25 Opposer responds by contending that:
1) “the relevant test is likelihood of confusion, not actual confusion; thus, it is
unnecessary to show actual confusion to establish a likelihood of confusion.” (citing
Trademark Manual of Examining Procedure (“TMEP”) § 1207.01(d)(ii)), and that 2)
“[Applicant] failed to present any evidence regarding the nature and extent, if any, to
which [Applicant] used its mark in commerce for the alleged six-year period of
concurrent use.”26
Applicant submitted the following evidence intended to show use of its mark: 1)
its service mark application, in which Applicant’s CEO attests that the LOVE RIGHT
HOME CARE REFERRAL AGENCY mark has been in use since April 2012; 2) the
specimen of use in the Application (a page from Applicant’s web site) showing
prominent use of Applicant’s Mark, again attested to by Applicant’s CEO;27 3)
Applicant’s Articles of Incorporation, filed in April 2012;28 and 4) Applicant’s

25 17 TTABVUE 9.
26 20 TTABVUE 10.
27 See Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d
1626, 1629 (Fed. Cir. 2009) (stating that evidence submitted during prosecution is
automatically part of the record before the Board).
28 17 TTABVUE, Exhibit A.
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infringement complaint against a third party, stating that Applicant has been
operating within the County of San Diego, California since April 2012.29
The application file history arguably shows use of Applicant’s mark on the
Internet at one point in time (April 2015), and that Applicant’s business address is in
San Diego. We do not have any evidence regarding the extent of Applicant’s web site
use, or even geographical use, of its mark. Applicant’s articles of incorporation do not
show marketplace use of its mark at all. The statement in Applicant’s infringement
complaint that it has been operating within the County of San Diego, California since
April 2012 is undocumented hearsay.
Opposer submitted evidence regarding use of Applicant’s mark, LOVE RIGHT
HOME CARE REFERRAL AGENCY, consisting of: 1) a screen capture of Applicant’s
web site; 2) a screen capture promoting Applicant’s services in connection with its
mark; 3) a digital brochure promoting Applicant’s services in connection with its
mark; and 4) Applicant’s social media platform advertising.30 Notably, Opposer also
introduced evidence that one of its franchisees has been providing in-home care
services in connection with Opposer’s mark in the greater San Diego area (where
Applicant is located) since 2006, and states in its brief that Applicant operates in the
same location.31 Thus, we find that the parties had been operating concurrently in
the same geographical trading area (greater San Diego) for up to six years as of the

29 17 TTABVUE, Exhibit B.
30 16 TTABVUE, Stanosheck Decl., Exhibits E-H.
31 16 TTABVUE, Stanosheck Decl., ¶¶ 12-13, Exhibit C; Opposer’s ACR Brief at 7, 16
TTABVUE 12.
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time of trial without evidence of actual confusion. Cf. West Fla. Seafood Inc. v. Jet
Rests. Inc., 31 F.3d 1122, 31 USPQ2d 1660, 1663 (Fed. Cir. 1994) (instructing Board
to consider evidence of use as a whole).
Opposer is correct that “it is unnecessary to show actual confusion in establishing
likelihood of confusion.” Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565,
218 USPQ 390, 396 (Fed. Cir. 1983). On the other hand, the absence of actual
confusion may be considered when the opportunity exists for it to occur. Cf.
Cunningham v. Laser Golf Corp., 55 USPQ2d at 1847 (Board properly addressed the
absence-of-confusion factor and stated that it could not conclude that there had even
been an opportunity for it to occur); see also Cent. Soya Co. v. N. Am. Plant Breeders,
212 USPQ 37, 48 (TTAB 1981) (“the absence of actual confusion over a reasonable
period of time might well suggest that the likelihood of confusion is only a remote
possibility with little probability of occurring”).
Here, the evidence of record indicates that the parties have used their respective
marks in the same geographic market for up to six years for services that are related
and overlapping in part and move in the same channels of trade without evidence
that actual confusion has occurred. See In re Guild Mortg. Co., 129 USPQ2d at 1164
(stating that the parties’ “services are similar and move in the same channels of trade,
which is relevant when assessing whether the absence of actual confusion is
indicative of the likelihood of confusion”). Nonetheless, because there is no evidence
concerning the extent of Applicant’s use, we find the seventh du Pont factor to be
neutral.
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F. Applicant’s Intent
In its ACR Brief and accompanying Flores Declaration, Applicant asserts that its
intent in filing to register the LOVE RIGHT HOME CARE REFERRAL AGENCY
mark was to develop its own brand and to bolster its case against a third-party service
mark infringer who has since ceased operations after Applicant filed suit.32 We
consider Applicant’s intent arguments under the thirteenth du Pont factor: “[a]ny
other established fact probative of the effect of use.” 177 USPQ at 567.
Opposer contends that Applicant submitted no evidence of how its mark was
devised or whether any due diligence was performed prior to adopting Applicant’s
Mark. Opposer further urges that Applicant’s intent has no bearing on the likelihood
of confusion analysis.33
“Whether there is evidence of intent to trade on the goodwill of another is a factor
to be considered, but the absence of such evidence does not avoid a ruling of likelihood
of confusion.” J & J Snack Foods Corp. v. McDonald’s Corp., 932 F.2d 1460, 18
U.S.P.Q.2d 1889, 1891 (Fed. Cir. 1991). Stated another way, “lack of intent to trade
on or copy another’s mark will not prevent a finding of likelihood of confusion if the
actual impression created by the mark is likely to cause confusion.” Greyhound Corp.
v. Both Worlds Inc., 6 USPQ2d 1635, 1640 (TTAB 1988). Thus, we find Applicant’s
arguments supporting its good faith adoption and application to register the LOVE

32 17 TTABVUE 4, 10 and Declaration of Applicant’s Counsel ¶¶ 8-16.
33 20 TTABVUE 11.
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RIGHT HOME CARE REFERRAL AGENCY mark irrelevant to our analysis, and
consider the thirteenth du Pont factor to be neutral.
G. The Parties’ Marks
We come, finally, to the first du Pont likelihood of confusion factor, 177 USPQ at
567, a comparison of the parties’ marks: Opposer’s THE RIGHT CARE, RIGHT AT
HOME mark of Registration No. 4680962 and Applicant’s LOVE RIGHT HOME
CARE REFERRAL AGENCY mark.
We consider the similarity or dissimilarity of the parties’ marks in their entireties
as to appearance, sound, connotation and commercial impression. See Palm Bay
Imps., 73 USPQ2d at 1691. “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.” In re i.am.symbolic, llc, 866 F.3d 1315,
123 USPQ2d 1744, 1748 (Fed. Cir. 2017) (quoting Coach Servs., 101 USPQ2d at
1721). The focus is on the recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks. See Inter IKEA Sys. B.V.
v. Akea, LLC, 110 USPQ2d at 1740. The average purchasers here are the elderly,
infirm or disabled, or their family members, who wish to retain in-home non-medical
personal care and support services.
Although we must consider the parties’ marks in their entireties, we also note 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.” Presto Prods., Inc. v. Nice-Pak Prods., Inc., 9
Opposition No. 91236795

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USPQ2d 1895, 1897 (TTAB 1988), and that matter that is descriptive of or generic
for a party’s services is typically less significant or less dominant when comparing
marks. In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir.
1997).
Opposer argues that the overall commonality (similarity in appearance, sound,
connotation and commercial impression) of the parties’ marks is demonstrated by
their shared use of the terms “HOME,” “CARE” and “RIGHT” as the dominant
formatives, and by their overall conveyance of the same information (in a slightly
different format) – the providing of quality home care.34
Applicant asserts that the parties’ marks are distinguishable by the presence of
the descriptive phrase “REFERRAL AGENCY” in its mark, purportedly designating
its domestic in-home health care referral services as being distinguishable from those
of Opposer, which Opposer does not provide.35 Applicant also attempts to distinguish
its mark from Opposer’s mark by noting Applicant’s manner of use of its mark in the
marketplace – a factor that is irrelevant given that both parties’ marks are in
standard character format. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909
(Fed. Cir. 2012) (“a standard character mark is not limited to any particular font,
size, style, or color”).
As noted, Opposer argues that the common dominant formatives of the parties’
marks are their shared use of the terms “HOME,” “CARE” and “RIGHT.” We do not

34 16 TTABVUE 12-14.
35 17 TTABVUE 8-9.
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agree. Rather, we find that the dominant phrase of Opposer’s mark is “RIGHT AT
HOME.” On the other hand, the dominant phrase of Applicant’s mark is either
“LOVE RIGHT” or “LOVE RIGHT HOME CARE.”
We also find that the differing overall connotations and commercial impressions
of Applicant’s mark and Opposer’s most similar registered mark outweigh the
similarities in appearance and sound. See Champagne Louis Roederer S.A. v. Delicato
Vineyards, 148 F.3d 1373, 47 USPQ2d 1459, 1460-61 (Fed. Cir. 1998) (CRISTAL for
champagne held not confusingly similar to CRYSTAL CREEK for wine). Whereas
Opposer’s most similar mark, THE RIGHT CARE, RIGHT AT HOME, conveys the
impression of home health care done correctly, Applicant’s mark, LOVE RIGHT
HOME CARE REFERRAL AGENCY conveys the connotation of home health care
done with love (or personal warmth).
We further find that the overall dissimilarity of the parties’ marks in appearance,
sound, meaning and commercial impression is dispositive of this Opposition – in that
confusion between them is unlikely. Kellogg Co. v. Pack’em Enters., Inc., 951 F.2d
330, 21 USPQ2d 1142, 1145 (Fed. Cir. 1991) (“in a particular [appropriate] case, a
single du Pont factor [the dissimilarity of the parties’ marks in their entireties] may
… be dispositive”).
V. Conclusion
We have considered all of the relevant factors for which evidence and argument
was properly put before us. The parties’ services and channels of trade overlap.
Opposer’s marks, including its THE RIGHT CARE, RIGHT AT HOME mark that is
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closest to Applicant’s LOVE RIGHT HOME CARE REFERRAL AGENCY mark, are
inherently weak, but have gained marketplace strength through use. The parties
agree that the consumers of their respective services are sophisticated, tending to
negate a likelihood of confusion. We treat the other factors as neutral.
While a number of relevant factors would tend to support a finding of likely
confusion, they are outweighed by the overall differences in appearance, sound,
meaning and commercial impression between Applicant’s mark and the mark in
Opposer’s Registration No. 4680962.
Decision: The opposition is dismissed.