Team Health, Inc.

Trademark Trial and Appeal Board

Oct 8, 2002

No. 76016938 (T.T.A.B. Oct. 8, 2002)

Hearing:
September 19, 2002 Mailed: 10/8/02

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Team Health, Inc.
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Serial No. 76/016,938
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Mark S. Graham for Team Health, Inc.

Dayna J. Browne, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).

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Before Hanak, Walters and Drost, Administrative Trademark
Judges.

Opinion by Hanak, Administrative Trademark Judge:

Team Health, Inc. (applicant) seeks to register in
typed drawing form ACCESS NURSE for “physician referral
services” (Class 35) and “providing health care information
by telephone by means of a triage service and scheduling
services for persons to attend health-related classes
offered by hospitals, clinics, and health care providers”
(Class 42). The application was filed on April 4, 2000
with a claimed first use date of December 1995.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 76/016,938
2
At the request of the Examining Attorney, applicant
disclaimed the exclusive right to use NURSE apart from the
mark in its entirety.
Citing Section 2(d) of the Trademark Act, the
Examining Attorney has refused registration on the basis
that applicant’s mark, as applied to applicant’s services,
is likely to cause confusion with the mark ACCESS NURSING
SERVICES and design (shown below), previously registered
for “providing nursing personnel to render health care
services to patients, excluding educational, counseling,
psychological, or consulting services provided to, or
related to the professional and personal development of,
health care professionals.” Registration No. 2,057,656.
This cited registration contains a disclaimer of the words
NURSING SERVICES.

When the refusal to register was made final, applicant
appealed to this Board. Applicant and the Examining
Ser. No. 76/016,938
3
Attorney filed briefs, and were present at a hearing held
on September 19, 2002.
In any likelihood of confusion analysis, two key,
although not exclusive, considerations are the similarities
of the marks and the similarities of the goods or services.
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976). (“The fundamental
inquiry mandated by Section 2(d) goes to the cumulative
effect of differences in the essential characteristics of
the goods [or services] and differences in the marks.”)
Considering first the marks, we note that marks are
compared in terms of visual appearance, pronunciation and
connotation. In terms of visual appearance, the two marks
are only somewhat similar in that the registered mark is
depicted in a decided stylized manner. In terms of
pronunciation and connotation, the two marks are decidedly
more similar. Obviously, one would not pronounce the
design feature in the registered mark. Thus, in terms of
pronunciation and connotation, the comparison is between
applicant’s mark ACCESS NURSE and registrant’s mark ACCESS
NURSING SERVICES.
However, applicant has properly made of record over 60
third-party registrations of marks containing the word
ACCESS which are for goods or services in the health care
Ser. No. 76/016,938
4
field. At page 11 of its brief, applicant argues “that the
term ACCESS is very dilute in the health care industry and
is therefore entitled to a very narrow scope of protection
in this field.” In response, the Examining Attorney
concedes at page 3 of her brief that in the health care
industry, the term “access” is indeed “weak.”
Despite the weakness of the term “access” in the
health care industry, we would nevertheless find that
applicant’s mark and registrant’s mark are similar enough
such that if they were used on related services directed to
the same purchasers, there would be a likelihood of
confusion. However, such is not the case. Applicant’s
services are directed to ordinary individuals. On the
other hand, registrant’s services of providing nursing
personnel are directed to hospitals, nursing homes,
doctor’s offices and other institutions. Moreover, the
users of registrant’s services (health care providers) are
sophisticated, a point which the Examining Attorney
concedes at page 8 of her brief. In this regard, the
predecessor to our primary reviewing Court has held that
health care providers are “a highly intelligent and
discriminating public.” Warner Hudnut, Inc. v. Wander Co.,
280 F.2d 435, 129 USPQ 411, 412 (CCPA 1960). Our primary
reviewing Court had made it clear that purchaser
Ser. No. 76/016,938
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“sophistication is important and often dispositive because
sophisticated consumers may be expected to exercise greater
care.” Electronic Design & Sales v. Electronic Data
Systems, 954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir.
1992).
At page 8 of her brief, the Examining Attorney,
without evidentiary support, speculates that “the
registrant’s services may be encountered by the same
patients” as applicant’s services. (Emphasis added).
Assuming for the sake of argument that on rare occasion an
individual may use nursing personnel placement services
(registrant’s services), such “overlap in customers is too
small to be significant much less dispositive.” Electronic
Design & Sales, 21 USPQ2d at 1392.
Given the fact that applicant’s services and
registrant’s services are directed to different purchasers,
and the additional fact that the purchasers of registrant’s
services are sophisticated, we find that the
contemporaneous use of applicant’s mark and registrant’s
mark is not likely to result in confusion, mistake or
deception.
Decision: The refusal to register is reversed.