SonRise Homes, Inc.

Trademark Trial and Appeal Board

Jul 12, 2007

No. 76619651 (T.T.A.B. Jul. 12, 2007)

Mailed:
12 July 2007
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re SonRise Homes, Inc.
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Serial No. 76619651
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Ernest I. Gifford of Gifford, Krass, Groh, Sprinkle,
Anderson & Citkowski, P.C. for SonRise Homes, Inc.

Amy Gearin, Trademark Examining Attorney, Law Office 115
(Tomas V. Vlcek, Managing Attorney).
_______

Before Drost, Zervas, and Walsh, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On November 8, 2004, applicant, SonRise Homes, Inc.,
applied to register the mark SONRISE HOMES and design shown
below on the Principal Register for the services of “home
building, building and development of residential
communities” in Class 37. Serial No. 76619651. Applicant
has disclaimed the term “Homes.”
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser No. 76619651
2

The application lists the date of first use anywhere and in
commerce as July 19, 2002.
The examining attorney has refused to register
applicant’s mark on the ground that it is confusingly
similar under Section 2(d) of the Trademark Act (15 U.S.C.
§ 1052(d)) to a prior registration for the mark SUNRISE (in
typed or standard form) for “construction, maintenance
and/or repair of residential homes and communities and
custom construction of residential homes” in Class 37.1
The examining attorney argues that the “word, SONRISE,
in applicant’s proposed mark, and the word, SUNRISE, in
registrant’s marks, are essentially phonetic equivalents
and are thus similar sounding.” Brief at 3. The examining
attorney also argues that the services of applicant and
registrant overlap.
Applicant has responded by maintaining (Brief at 2)
that:

1 Registration No. 1,197,002, issued June 1, 1982, renewed.
Ser No. 76619651
3
The consumer of Applicant’s services is a purchaser of
a multi-thousand dollar home, a purchase that for most
consumers takes place no more than two or three times
during the consumer’s lifetime. The consumer of such
a large purchase is clearly sufficiently sophisticated
to be able to recognize the difference between
“SonRise Homes” and “Sunrise.”

Further, unlike “Sunrise,” “SonRise” carries a
religious connotation that is not present in the
“Sunrise” mark. “SonRise” refers to the rise of Jesus
from the dead while “Sunrise” refers to the rise of
the sun. To believers then “SonRise” has a
connotation of honesty and fair dealing and this is
lacking in the term “Sunrise.”

Brief at 2.

After the examining attorney made the refusal final,
this appeal followed.
In a case involving a refusal under Section 2(d), we
analyze the facts as they relate to the relevant factors
set out in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (CCPA 1973). See also Recot, Inc.
v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1896 (Fed. Cir.
2000) and In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). In considering the
evidence of record on these factors, we must keep in mind
that “[t]he fundamental inquiry mandated by § 2(d) goes to
the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper
Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976).
Ser No. 76619651
4
We begin our discussion by comparing the services in
the application and registration to determine if they are
related.
It is a well settled principle of trademark law that
it is not necessary that the goods of the parties be
similar or competitive, or even that they move in the
same channels of trade to support a holding of
likelihood of confusion. It is sufficient for purposes
herein that the respective goods of the parties are
related in some manner, and/or that the conditions and
activities surrounding the marketing of the goods are
such that they would or could be encountered by the
same persons under circumstances that could because of
the similarity of the marks used therewith, give rise
to the mistaken belief that they originate from or are
in some way associated with the same producer.

In re International Telephone & Telegraph Corp., 197 USPQ
910, 911 (TTAB 1978).
In this case, the relationship between the services of
applicant and registrant is direct and clear. Applicant
provides home building services and building and
development of residential communities services.
Registrant’s services include, inter alia, the construction
of residential homes and communities.2 Therefore, because
both applicant and registrant construct or build homes and

2 With the final Office action, the examining attorney included
numerous registrations to show that home building, custom
construction of homes, real estate development, and similar
services are registered by the same entity under a common mark.
See, e.g., Registration Nos. 2,880,082; 2,844,640; 3,023,699; and
3,031,888. See also Denial of Request for Reconsideration,
Internet attachments (custom home and residential development
services).
Ser No. 76619651
5
residential communities, these services are at least in
part identical. “When marks would appear on virtually
identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion
declines.” Century 21 Real Estate Corp. v. Century Life of
America, 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir.
1992). Furthermore, we must assume that these services are
provided to the same purchasers in the same channels of
trade. In re Sawyer of Napa Inc., 222 USPQ 923, 924 (TTAB
1983) (“Moreover, neither the application nor the
registration limits the channels of trade through which the
goods move. In the absence of such a limitation we must
assume that the goods move through the normal channels for
such goods, and that with respect to these particular
goods, these channels are the same”). See also Morton-
Norwich Products, Inc. v. N. Siperstein, Inc., 222 USPQ
735, 736 (TTAB 1984). (“Since there is no limitation in
applicant's identification of goods, we must presume that
applicant's paints move in all channels of trade that would
be normal for such goods, and that the goods would be
purchased by all potential customers”).
The next factor that we will consider concerns the
similarities and dissimilarities of applicant’s and
registrant’s marks. Applicant’s mark consists of the words
Ser No. 76619651
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“SonRise Homes” and a design. Registrant’s mark is for the
word SUNRISE without any stylization. A typed drawing
indicates that the party is not limiting its mark to any
particular style. “[T]he argument concerning a difference
in type style is not viable where one party asserts rights
in no particular display. By presenting its mark merely in
a typed drawing, a difference cannot legally be asserted by
that party. [Applicant] asserts rights in [its mark]
regardless of type styles, proportions, or other possible
variations. Thus, apart from the background design, the
displays must be considered the same.” Squirtco v. Tomy
Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983).
See also Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1847 (Fed. Cir. 2000) (“Registrations
with typed drawings are not limited to any particular
rendition of the mark and, in particular, are not limited
to the mark as it is used in commerce”). Therefore,
applicant’s and registrant’s mark cannot be distinguished
based on the stylization of the words in applicant’s mark.
Another difference in the marks is the presence of the
word “Homes” and the design of a home in applicant’s mark.
The term “Homes” is disclaimed and disclaimed matter is
often “less significant in creating the mark’s commercial
impression.” In re Code Consultants, Inc., 60 USPQ2d 1699,
Ser No. 76619651
7
1702 (TTAB 2001). Indeed, the highly descriptive or
generic term “Homes” as well as the representation of a
home would not have much significance in distinguishing
marks that are used in association with home building
services. “Regarding descriptive terms, this court has
noted that the ‘descriptive component of a mark may be
given little weight in reaching a conclusion on the
likelihood of confusion.’” Cunningham v. Laser Golf Corp.,
222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000),
quoting, In re National Data Corp., 753 F.2d 1056, 224 USPQ
749, 752 (Fed. Cir. 1985). See also M2 Software Inc. v. M2
Communications Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1948-49
(Fed. Cir. 2006) (“When comparing the similarity of marks,
a disclaimed term, here ‘COMMUNICATIONS,’ may be given
little weight, but it may not be ignored”).
Next, we consider the terms SONRISE and SUNRISE. The
marks are similar in appearance inasmuch as both marks have
the identical letters except for the initial vowel.
Furthermore, as the examining attorney points out, both
marks would be pronounced identically inasmuch as the words
“son” and “sun” are pronounced the same in English. See
Ser No. 76619651
8
Brief at 3.3 However, applicant maintains that its mark may
have a religious connotation inasmuch as its spells the
familiar term “Sunrise” as “SonRise.” We agree that some
buyers may take notice of this difference and assume that
the mark has a religious meaning. However, we cannot hold
that this would be the only conclusion that consumers may
draw. Many consumers, to the extent that they notice the
difference, may simply conclude that this is a misspelling
of the term “Sunrise.” Indeed, the commercial impression
of the marks is similar since these consumers may view the
design in applicant’s mark as suggesting a sunrise.
When we view the marks SONRISE HOMES and design and
SUNRISE as a whole, we conclude that they are similar.
Both marks are dominated by the phonetically identical term
“Sunrise” or “SonRise” and the differences are not
sufficient to result in dissimilar marks. See In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed.
Cir. 1997) (Federal Circuit held that the mark THE DELTA
CAFÉ and design was similar to registrant’s DELTA mark)
Applicant also has submitted pages from several
websites and argues that “‘Sunrise Homes’ is a fairly

3 We take judicial notice of these dictionary entries in the
examining attorney’s brief. University of Notre Dame du Lac v.
J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982),
aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

Ser No. 76619651
9
common name for home builders.” Brief at 2.4 These
printouts show that there are homebuilders or developments
that are referred to as “Sunrise Homes” in Brunswick county
(state unknown), Arizona, Pennsylvania, Connecticut, and
Florida. This evidence, which appears to show some local
use of the term Sunrise, is not sufficient to convince us
that the registered mark is so weak that it is entitled to
virtually no protection. See, e.g., In re Broadway Chicken
Inc., 38 USPQ2d 1559, 1562 (TTAB 1996) (“The search of
company names in the American Business Directory found more
than 575 entities whose names contain the term BROADWAY and
which offer restaurant services and/or related services or
goods.” BROADWAY CHICKEN not confusingly similar to
BROADWAY PIZZA). We add that even if the mark was weak, it
would still be entitled to protection when a very similar
mark is used on identical services. In re The Clorox Co.,
578 F.2d 305, 198 USPQ 337, 341 (CCPA 1978) (ERASE for a
laundry soil and stain remover held confusingly similar to

4 Applicant also refers to the number of hits the word “Sunrise”
returned as a result of a search of USPTO records. We sustain
the examining attorney’s objection to considering this statement
as evidence inasmuch as it is not supported by copies of the
actual registrations. In re Carolina Apparel, 48 USPQ2d 1542,
1542 n.2 (TTAB 1998) (“The Board does not take judicial notice of
third-party registrations, and the mere listing of them is
insufficient to make them of record”); and In re Hub
Distributing, Inc., 218 USPQ 284, 285 (TTAB 1983) (“[W]e do not
consider a copy of a search report to be credible evidence of the
existence of the registrations and the uses listed therein”).
Ser No. 76619651
10
STAIN ERASER, registered on the Supplemental Register, for
a stain remover).
Finally, applicant argues that the purchasers of its
services are “sufficiently sophisticated to be able to
recognize the difference between ‘SonRise’ and ‘Sunrise.’”
Brief at 2. While purchasers of homes would include
ordinary purchasers, we agree that the purchase of home
building services, because of the cost, would normally be a
purchase made after careful consideration. We note however
that “even careful purchasers are not immune from source
confusion.” In re Total Quality Group Inc., 51 USPQ2d
1474, 1477 (TTAB 1999). In this case, even careful
purchasers of applicant’s and registrant’s services are
likely to believe that there is some association between
the marks SUNRISE and SONRISE HOMES and design.
We conclude that the marks, despite some differences,
are similar and the services are at least overlapping, and
confusion is likely.
Decision: The examining attorney’s refusal to
register applicant’s mark for the identified services on
the ground that it is likely to cause confusion with the
cited registered mark used in connection with the
identified services under Section 2(d) of the Trademark Act
is affirmed.