The Canopy Living LLC

Trademark Trial and Appeal Board

Sep 13, 2019

87864252 (T.T.A.B. Sep. 13, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: September 17, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re The Canopy Living LLC.
_____

Serial No. 87864252

The following corrected version of the Board’s September 13, 2019 decision in
the above-captioned case corrects Applicant’s name.

This Opinion is not a
Precedent of the TTAB
Mailed: September 13, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re The Canopy Living LLC.
_____

Serial No. 87864252
_____

Derek R. Fahey of The Plus Firm,
For The Canopy Living LLC.

Michael J. Clark, Trademark Examining Attorney, Law Office 121,
(Richard White, Managing Attorney).1

_____

Before Cataldo, Wolfson and Goodman,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

1 The involved application was reassigned to the Trademark Examining Attorney listed above
after the appeal was instituted.
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Applicant, The Canopy Living LLC, seeks registration on the Principal Register
of the mark, (SENIOR LIVING disclaimed) identifying the
following services in International Class 43:
Continuing care retirement communities (CCRCs) in the nature of
assisted living and independent living facilities, excluding psychiatric
testing and screening and providing intensive psychiatric therapy;
Providing assisted living facilities, excluding psychiatric testing and
screening and providing intensive psychiatric therapy.2

The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the cited registered marks CANOPY (in standard
characters)3 and (CHILDREN’S SOLUTIONS disclaimed),4 issued

2 Application Serial No. 87864252 was filed on April 5, 2018, based upon Applicant’s assertion
of a bona fide intent to use of the mark in commerce under Section 1(b) of the Trademark Act.
15 U.S.C. § 1051(b). The application includes the following color statement and description
of the mark: “Color is not claimed as a feature of the mark. The mark consists of a stylized
representation of a tree above the terms ‘THE CANOPY’, in stylized font, above the terms
‘SENIOR LIVING’, in stylized font.”

Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs, motions
and orders on appeal are to the Board’s TTABVUE docket system.

3 Registration No. 5449177 issued on the Principal Register on April 17, 2018.
4 Registration No. 5449289 issued on the Principal Register on April 17, 2018. The
registration includes the following color statement and description of the mark: “Color is not
claimed as a feature of the mark. The mark consists of on its first line, a symmetrical shape
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on the Principal Register to the same entity and identifying, inter alia, the following
services in International Class 44:
Providing psychiatric testing and screening; providing intensive
psychiatric therapy; providing behavioral and mental health services to
children who have experienced emotional or physical abuse, troubled
and at risk youths and their families, children with severe emotional
disturbances, and children with special needs and their families;
providing alcohol and drug addiction treatment services to adolescents;
providing comprehensive residential psychiatric services for children
and adolescents with developmental disorders and severe emotional
and/or behavioral disturbances.5

After the Trademark Examining Attorney made the refusal final, Applicant
appealed and requested reconsideration. The appeal resumed after the Examining
Attorney denied the request for reconsideration. Applicant and the Examining
Attorney filed briefs. We affirm the refusal to register.
I. Likelihood of Confusion

We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. __, 135 S. Ct. 1293, 113 USPQ2d 2045, 049 (2015); see also In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).

that resembles the form of a butterfly. On its second line, the word ‘CANOPY’, centered below
the butterfly shape. On its third line, the phrase ‘Children's Solutions’, centered below the
word ‘CANOPY’.
5 Both registrations identify additional services in International Classes 41 and 45.
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We have considered each DuPont factor that is relevant, and have treated other
factors as neutral. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797,
1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d
1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant to every case,
and only factors of significance to the particular mark need be considered.”));
ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015)
(“While we have considered each factor for which we have evidence, we focus our
analysis on those factors we find to be relevant.”).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods. 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 marks.”); In re
FabFitFun, Inc., 127 USPQ2d 1670, 1672 (TTAB 2018).
For purposes of the DuPont factors that are relevant to this appeal we will
consider Applicant’s involved mark and identified services and the mark that is the
subject of Registration No. 5449177 (“cited registration”) reciting, inter alia,
psychiatric testing, screening and intensive therapy services in Class 44. If likelihood
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of confusion is found as to the mark and services in this registration, it is unnecessary
to consider the other cited registration. Conversely, if likelihood of confusion is not
found as to the mark and services in this registration, we would not find likelihood of
confusion as to the mark and services in the other cited registration inasmuch as the
mark in the other registration contains additional wording and a design not present
in the mark in the involved application. See In re Max Capital Grp., 93 USPQ2d 1243,
1245 (TTAB 2010).
A. The Services, Channels of Trade, and Classes of Customers

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). “This factor considers whether ‘the
consuming public may perceive [the respective goods or services of the parties] as
related enough to cause confusion about the source or origin of the goods and
services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1086 (Fed. Cir.
2014) (quoting Hewlett-Packard, 62 USPQ2d at 1004).
Therefore, to support a finding of likelihood of confusion, it is not necessary that
the services be identical or even competitive. It is sufficient that the services are
related in some manner, or that the circumstances surrounding their marketing are
such that they would be encountered by the same persons in situations that would
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give rise, because of the marks, to a mistaken belief that they originate from the same
source or that there is an association or connection between the sources of the
services.6 In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
In support of the refusal of registration, the Examining Attorney introduced with
the July 24, 2018 first Office Action7 and October 17, 2018 final Office Action8
printouts from third-party websites offering, under the same mark, independent or
assisted living facilities as well as psychiatric services. These include:
• Christian Healthcare Center (christianhealthcare.org) provides
“independent living” and “assisted living” facilities as well as mental health
services including an “inpatient psychiatric hospital” and a “partial-
hospitalization program for adults with … a psychiatric diagnosis.”

• Chelsea Senior Living (chelseaseniorliving.com) provides “assisted living”
facilities as well as a “behavioral health clinical team,” including
“psychiatrists” that provide a “therapeutic program” for “specialized care and
support.”

• Heritage Lane Behavioral Assisted Living (heritagelane.org) provides
“assisted living” facilities and “on-site psychiatry and counseling.”

• Epworth Children & Family Services (epworth.org) provides “independent
living programs,” including facilities as well as “psychological services”
including “risk assessment,” “trauma assessments,” and “therapy.”

• Presence Health (presencehealth.org) provides “assisted living” and
“independent living” facilities as well as “comprehensive patient care” and
“behavioral services” including care for those with “chronic and acute
psychiatric illnesses” by “psychiatrists.”

6 For this reason, we do not find compelling Applicant’s evidence, submitted with its
September 25, 2018 Response to the Examining Attorney’s first Office Action at .pdf 40-183,
regarding the precise nature of the services identified in the cited registration. We consider
whether consumers may confuse the source of the identified services, not differences in the
services themselves. See, e.g., In re St. Helena Hosp., 113 USPQ2d at 1086.
7 At .pdf 19-31.
8 At .pdf 5-38.
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• Spirit of Gheel (spiritofgheel.org) provides “transitional living,” by means of
independent living facilities as well as “psychiatric services.”

This evidence demonstrates that at least six third parties offer both Applicant’s
services and the services identified in the cited registration under the same mark.
The Examining Attorney also introduced into the record with the October 17, 2018
final Office Action9 copies of eight use-based, third-party registrations for marks
identifying, inter alia, assisted and independent living facilities as well as psychiatric
services. The following examples are illustrative:
Reg. No. 3652238 for the mark SABER (standard characters);

Reg. No. 5451010 for the mark NHC NATIONAL HEALTHCARE
CORPORATION and design; and

Reg. No. 3039033 for the mark STATE OF THE HEART (standard characters).

As a general proposition, although use-based, third-party registrations alone are not
evidence that the marks shown therein are in use or that the public is familiar with
them, they nonetheless may have some probative value to the extent they may serve
to suggest that the goods are of a kind that emanate from a single source. See In re
Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001); In re Albert Trostel &
Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard, 6
USPQ2d 1467, 1470 n.6 (TTAB 1988). In this case, the totality of the website and
third-party registration evidence demonstrates that consumers would readily expect
that providers of assisted and independent living facilities also provide various

9 At .pdf 46-74.
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psychiatric services and that, as a result, the services identified in the involved
application and cited registration could emanate from the same source.
Evidence of record demonstrates that both Applicant’s services and Registrant’s
services may be encountered by the same classes of consumers, that is, consumers
seeking assisted living and psychiatric care under the same marks in at least one
common trade channel, i.e., the physical locations and corresponding websites of
centers offering both services. In addition, the identification of services in the cited
registration does not recite any limitations as to the channels of trade in which the
services are offered. In the absence of trade channel limitations on the services offered
under the registered mark, we must presume that these services are offered in all
customary trade channels. See Citigroup v. Capital City Bank Grp., 98 USPQ2d at
1261; In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006).
The limiting language in Applicant’s identification of services excluding the
services identified in the cited registration is not binding on consumers when they
encounter Applicant’s mark. See In re i.am.symbolic, LLC, 116 USPQ2d 1406, 1410
(TTAB 2015); aff’d 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); cf. M2 Software
Inc. v. M2 Communications Inc., 450 F.3d 1378, 78 USPQ2d 1944 (Fed. Cir. 2006)
(based on restrictions to specific industries in both of the identifications of goods in
Opposer’s registration and Applicant’s application, the goods are unrelated and travel
in different trade channels to different purchasers) (emphasis added). The explicit
exclusion of Registrant’s services from Applicant’s identification of services does not
lessen the similarity thereof or restrict the channels of trade in which Registrant’s
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services may be encountered given the absence of such restrictions in the services
identified in the cited registration.
We find that the DuPont factors of the relatedness of the goods, channels of trade
and consumers weigh in favor of likelihood of confusion.
B. Strength of the Cited Mark / Number and Nature of Similar Marks
We next evaluate the strength of the registered mark and the scope of protection
to which it is entitled. The fifth DuPont factor is the “fame” or strength of the prior
mark, and the sixth factor is the number and nature of similar marks in use for
similar goods or services. DuPont, 177 USPQ at 567. In determining strength of a
mark, we consider both inherent strength, based on the nature of the mark itself, and
commercial strength or recognition. 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).”).
Turning first to inherent strength, Applicant submitted with its February 6, 2019
Request for Reconsideration10 the following definition:
• canopy – a covering, usually of fabric, supported on poles or suspended
above a bed, throne, exalted personage, or sacred object; an overhanging
projection or covering, as a long canvas awning stretching from the door
of the building to a curb.

Based upon this definition, the registered mark CANOPY suggests a covering or
projection stretching over, covering and providing shelter to individuals. Although

10 At .pdf 199-202 (dictionary.com, based upon the Random House Unabridged Dictionary
2018).
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the mark may be mildly indicative of a feature of psychiatric services to the extent
the term implies that the services offer a form of protection for patients, the mark is
inherently distinctive as it suggests, but does not describe, the provision of assisted
living and independent living facilities. There is no evidence regarding the registered
mark’s commercial or marketplace strength.11
In support of its argument that the cited CANOPY mark is commercially weak,
Applicant submitted with its February 6, 2019 Request for Reconsideration12 copies
of seven third-party CANOPY-formative registrations retrieved from a search of the
USPTO’s Trademark Electronic Search System (TESS). Applicant additionally
submitted the following table summarizing these marks, which for ease of reference
we reproduce in substantial part below:
TRADEMARK REG. NO. RELEVANT GOODS/SERVICES

CANOPY

4053927
IC 042: Medical and scientific research, namely,
conducting clinical trials, providing medical and
scientific research information in the field of
pharmaceuticals and clinical trials.

CANOPY

4530036
IC 041: Educational services in the health and
medical field, namely, conducting classes, seminars,
conferences, and workshops in the fields of personal
health records (PHRs) and health information
exchanges (HIEs) and distribution of training
materials in connection therewith.

CANOPY NATION

5597337
IC 036: Advisory services in the field of employee
benefits for group healthcare and business insurance
offered to employees in addition to standard benefits
such as medical, dental, life insurance.

11 Because of the nature of the evidence required to establish the “fame” or strength of a
registered mark, the Board normally does not expect an examining attorney to submit
evidence as to the commercial strength of the cited mark in an ex parte proceeding. See In re
Thomas, 79 USPQ2d 1021, 1027 n.11 (TTAB 2006).
12 At .pdf 46-55.
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CANOPY HEALTH

5530678
IC 044: Providing healthcare services through an
integrated, risk-bearing health care provider
network.

CANOPY

4868997
IC 009: Computer software for storing, compiling, and
sharing electronic medical records in the health and
medical field; electronic medical records software
used by healthcare personnel.

CANOPY

4530036
IC 042: Information technology consultation and
information technology support services in the health
and medical field.

CANOPY

3974501
Educational services, namely, providing study
programs in the fields of language and healthcare.
We note, however, that none of the third-party registrations proffered by
Applicant utilizes the term CANOPY either alone or with additional wording, in
connection with the psychiatric services identified in the cited registration.
Applicant further submitted with its February 6, 2019 Request for
Reconsideration13 copies of screenshots from sixteen third-party websites using the
term CANOPY to identify or describe various health and wellness programs.
Canopy Cancer Care – “Under the Canopy isn’t a place, but a philosophy of
integrated care where we don’t just treat your medical condition. … At Canopy
we talk a lot about outcomes that matter to patients. We believe that it is
important to provide our patients and their families’ access to tools and
resources to manage the side effects of your treatment, reduce stress and
anxiety and improve your physical condition enabling you to better cope with
your clinical treatment – improving your quality of life.” Under the Canopy.
(canopycancercare.co.nz/underthecanopy/under-the-canopy-auckland)14

13 At .pdf 57-113.
14 The Federal Circuit has explained that “[i]nformation originating on foreign websites or in
foreign news publications that are accessible to the United States public may be relevant to
discern United States consumer impression of a proposed mark.” In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007). Accordingly, we
will consider the information supplied by websites from New Zealand and Canada in our
determination of the strength or weakness of the mark in the cited registration.
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Memorial Hermann Cancer Centers – “As a caring community of hope, healing
and empowerment, Canopy enhances the quality of life for individuals affected
by cancer and for those who support them during their journeys.” Canopy –
Memorial Hermann The Woodlands Medical Center.
(cancer.memorialhermann.org/canopy)

Saint Michael’s Blog Canopy of care for Harrogate Hospice care charity – “Your
donation will not only help today but means you will be part of our future,
enabling us to grow and spread a canopy of care over our district.”
(saintmichaelshospice.org/blog/2018/04/canopy-of-care-for-harrogate-hospice-
care-charity)

Giant Steps Canopy Open House – “Giant Steps Inc., a 501(c)(3) nonprofit
which is comprised of a specialized, therapeutic day school – K-12 – and
programming for adults living with autism, is opening the doors to their
Canopy Adult Services Program (CASP) … The CASP is a re-imagined
community offering hope for a safe, fulfilled, purposeful and happy life for
adults with autism.” Giant Steps Canopy Open House to Showcase the Future
of Services for Adults Living with Autism.
(mygiantsteps.org/blog/giant-stepscanopy-open-house-to-showcase-the-future-
of-services-for-adultsliving-with-autism).

SGMC (South Georgia Medical Center) – “Our Canopy of Care is an
opportunity to expose teens ages 14-17 to the SGMC Healthcare Environment.”
Canopy of Care – Teen Volunteers.
(sgmc.org/Volunteers/canopy_of_care_for_teens.aspx).

Canopy Cove – a “leading private, residential Eating Disorder Treatment
Center with 25 years’ experience helping women and teens overcome Anorexia
Nervosa, Bulimia Nervosa, and all other associated Eating Disorders.”
(canopycove.com)

Canopy Innovations – an “NYC-based digital health company that is
transforming the way our healthcare system communicates with underserved
patients.” (withcanopy.com)

Canopy – “our digital tool can help you prepare for your journey through
healthcare and ready yourself for the complexity of modern medicine.”
(canopy.tools)

Canopy Partners – a medical imaging company offering services “exclusively
focused on elevating the value and relevance of imaging in the healthcare value
chain.” (canopy-partners.com)

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Canopy Medical – a group of medical consultants “assembled and designed to
offer a full range of services to innovators, start-up companies, emerging firms
or global corporations in the medical device, biologics, and pharmaceutical
industries under one Canopy.” (canopymedical.com)

Canopy Employment Screenings – a “medical surveillance testing” firm
offering pre-employment and annual medical testing for oil and gas, trucking,
manufacturing and other industries. (cescreenings.com)

Canopy Home Care – a senior care provider seeking “to enrich the quality of
life of our clients and their loved ones.” (canopyhomecare.com)

Canopy Growth – a cannabis producer and exporter described as “one of the
first Canadian cannabis companies to offer Mainpro-M1 accredited continuing
medical education programs to Canadian physicians.” (canopygrowth.com)

The Canopy Health & Wellness Center – a cannabis dispensary stating that
“the name, Canopy, stems from the concept of healing medicines which grow
from underneath the canopy of a Rain Forest” with services that “provide a
boutique-like experience with safely tested products serving specific medical
needs.” (canopysb.com)

Canopy Center – a “child abuse treatment and prevention agency serving the
Dane County community … to help strengthen families and support children,
teens and adults impacted by trauma and adversity.” (canopycenter.org)

Canopy Health Innovations – a cannabis healthcare producer whose “research
and development plan is to improve the quality of life and health of those
suffering from acute and chronic illnesses. The proper formulation of
cannabinoids has the opportunity to improve a number of common complaints
and ailments such as pain, appetite stimulation, and sleep quality. Medical
cannabis is also used to manage increasingly common diseases such as
Dementia, Alzheimer’s, Autism, Crohn’s Disease and Colitis, and
Fibromyalgia.” (canopy-health.ca)

Again, we note that none of the third-party websites proffered by Applicant utilize
the term CANOPY either alone or with additional wording, in connection with the
psychiatric services identified in the cited registration.
Based upon the evidence of record, we find that the registered CANOPY mark is
inherently distinctive and has not been shown to be commercially weak. Although we
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do not find it to be a strong mark, in light of its connotation of “protection” as used in
connection with the recited services, there is no evidence of third-party use of
CANOPY-formative marks in connection with psychiatric testing, screening or
therapy.15 Cf. In re FabFitFun, Inc., 127 USPQ2d 1673-4. Rather, evidence indicates
third-party use of CANOPY in relation to numerous health and wellness programs in
the fields of, e.g., cancer, cannabis and elder care that are only tangentially related
to the services in the cited registration. Further, there is no evidence of third-party
registrations of similar marks for the services identified in the cited registration. Cf.
Juice Generation, Inc. v. GS Enters LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674-75
(Fed. Cir. 2015); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1135-36 (Fed. Cir.
2015).
We therefore find that the registered CANOPY mark is to be accorded a somewhat
slightly narrower scope of protection than that to which inherently distinctive marks
with greater commercial strength are normally entitled due to the mildly evocative
nature of CANOPY in relation to the identified services. See Joseph Phelps Vineyards,
LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir.
2017) (stating that likelihood of confusion fame varies along a spectrum from very
strong to very weak).
C. The Marks

15 We observe in addition that only two of the third-party uses relate to the additional services
identified in the cited registration directed toward abuse or disorders affecting children.
Serial No. 87864252

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Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1160; Palm Bay Imps., Inc.
v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692.
“‘Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.’ In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-
Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968)
(“It is sufficient if the similarity in either form, spelling or sound alone is likely to
cause confusion.”) (citation omitted).” In re Inn at St. John’s, LLC, 126 USPQ2d 1742,
1746 (TTAB 2018). “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) (internal quotation marks
omitted). See also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470
(TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016).
Consumers may not necessarily encounter the marks in proximity to one another and
must rely upon their recollections thereof over time. In re Mucky Duck Mustard, 6
USPQ2d at 1468.
Serial No. 87864252

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Applicant’s applied-for mark incorporates in its entirety the
registered mark, CANOPY, adding a definite article “THE,” disclaimed, descriptive
wording “SENIOR LIVING” and a tree design. “Marks have frequently been found to
be similar where one mark incorporates the entirety of another mark, as is the case
here.” Coca-Cola Bottling Co. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188
USPQ 105, 106 (CCPA 1975) (BENGAL is similar to BENGAL LANCER); Johnson
Publ’g Co. v. Int’l Dev. Ltd., 221 USPQ 155, 156 (TTAB 1982) (EBONY is similar to
EBONY DRUM); In re S. Bend Toy Mfg. Co., 218 USPQ 479, 480 (TTAB 1983) (LIL’
LADY BUG is similar to LITTLE LADY).” TiVo Brands LLC v. Tivoli, LLC, 129
USPQ2d 1097, 1115 (TTAB 2019).
The definite article “THE” possesses little, if any, significance in distinguishing
one mark from another in a likelihood of confusion analysis. See, e.g., In re Narwood
Prods, Inc., 223 USPQ 1034, 1034 (TTAB 1984). Accord Jay-Zee, Inc. v. Hartfield-
Zodys, Inc., 207 USPQ 269, 271-2 (TTAB 1980); United States National Bank of
Oregon v. Midwest Savings and Loan Assn, 194 USPQ 232, 236 (TTAB 1977).
Similarly, the disclaimed terms SENIOR LIVING in the applied-for mark are, at
best, merely descriptive of Applicant’s services, including “continuing care retirement
communities.” It is well-settled that disclaimed, descriptive matter may have less
significance in likelihood of confusion determinations. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive
terms, this court has noted that the ‘descriptive component of a mark may be given
Serial No. 87864252

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little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re
Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie
Rests. Inc., 41 USPQ2d at 1533-34; In re Code Consultants, Inc., 60 USPQ2d 1699,
1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s
commercial impression”). There is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particular feature of a mark, provided
the ultimate conclusion rests on a consideration of the marks in their entireties. In re
Nat’l Data Corp., 224 USPQ at 751.
The stylized tree design also contributes less to the overall commercial impression
of Applicant’s mark inasmuch as it is relatively smaller than the wording THE
CANOPY and also resembles a canopy-shaped tree, thus emphasizing the term
CANOPY in Applicant’s mark. Further, when a mark consists of wording and a
design, the words are normally accorded greater weight, in part because consumers
are likely to remember and use the word(s) to request the goods or services identified
thereby. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012)
(“the verbal portion of a word and design mark likely will be the dominant portion”);
In re Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987) (holding that “if one
of the marks comprises both a word and a design, then the word is normally accorded
greater weight because it would be used by purchasers to request the goods or
services” and “because applicant’s mark shares with registrant’s mark that element
responsible for creating its overall commercial impression, the marks are confusingly
similar”).
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Thus, the registered CANOPY mark consists of the most distinctive portion of the
applied-for mark. Even if we agree with Applicant that CANOPY
should be accorded a somewhat narrower scope of protection than an arbitrary term,
it remains the sole component of Registrant’s mark and the most distinctive term in
Applicant’s mark. “[I]f the dominant portion of both marks is the same, then
confusion may be likely notwithstanding peripheral differences.” In re Denisi, 225
USPQ 624, 624 (TTAB 1985). The peripheral differences in this case, Applicant’s
addition of the wording “THE” and “SENIOR LIVING” and a tree design fail to
sufficiently distinguish the marks. “THE” as discussed above is practically devoid of
trademark significance. “SENIOR LIVING” merely describes a feature of Applicant’s
services. The spreading, canopy-like tree reinforces the term “CANOPY.” Applicant’s
mark suggests retirement care community facilities that
provide protection for elderly residents. The registered mark suggests psychiatric
services that provide protection for its patients, perhaps as a division or feature of
Applicant’s services. Thus, one familiar with psychiatric services identified by the
registered mark CANOPY may believe that Applicant’s services under its mark are
related to assisted and independent living services. Consumers encountering the
registered CANOPY mark further could mistakenly believe it is a shortened variation
on the applied-for mark used to identify related services emanating from a common
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source. In re Abcor Dev. Corp., 588 F.2d 811 , 200 USPQ 215, 219 (CCPA 1978) (Rich,
J., concurring) (“the users of language have a universal habit of shortening full
names—from haste or laziness or just economy of words”)).
Based upon the above analysis, we find that is more similar
than dissimilar to CANOPY especially in terms of sound and connotation and similar
in appearance and overall commercial impression. In view thereof, the du Pont factor
of the similarity of the marks favors a finding of likelihood of confusion.
D. Conditions of Purchase

Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567. Applicant argues that both its services and the services in
the cited registration are selected carefully, with great deliberation and often over a
lengthy period of time.16 Applicant further submitted website evidence with its
February 6, 2019 Request for Reconsideration17 consisting of advertisements for
services providing advice in the selection of elder care facilities and child psychiatric
counsellors. Finally, Applicant cites Primrose Retirement Communities, LLC v.
Edward Rose Senior Living, LLC, 122 USPQ2d 1030 (TTAB 2016) for its argument
that “the Board recognized that consumers of senior living communities can be

16 5 TTABVUE 13-16.
17 At .pdf 165-184
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expected to exercise some thought and research in their purchasing decisions
minimizing any likelihood of confusion.”18
We agree that, where possible, prudent decision-makers will exercise great care
in the selection of senior retirement care centers and psychiatric services for children
and adults. While the nature of the services involved suggests careful deliberation,
the standard of care is that of the least sophisticated potential purchaser, and not all
purchasers may exercise a high level of care in their selection. Selection of the services
at issue may need to be made unexpectedly or under duress during an emergency.
See Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163 cited in In re FCA US
LLC, 126 USPQ2d 1214, 1222 (TTAB 2018) (“Board precedent requires our decision
to be based on the least sophisticated potential purchasers.”).
We find, on the whole, that consumers would be expected to exercise a heightened
degree of care in their selection when circumstances allow. Thus, the fourth DuPont
factor somewhat favors a finding of no likelihood of confusion. Nonetheless, in the
absence of further evidence relating to the degree of care purchasers exercise, the
similarity of the marks and evidence of the relatedness of the services outweigh
Applicant’s evidence that purchasers are sophisticated or careful in their purchases.
See HRL Assocs., Inc. v. Weiss Assocs., Inc., 12 USPQ2d 1819, 1823 (TTAB 1989), aff’d,
902 F.2d 1546, 14 USPQ2d 1840 (Fed. Cir. 1990) (similarities of goods and marks
outweigh sophisticated purchasers, careful purchasing decision, and expensive goods).
E. Conclusion

18 5 TTABVUE 13.
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When we consider the record and the relevant likelihood of confusion factors, and
all of Applicant’s arguments relating thereto, we conclude that consumers familiar
with Registrant’s services offered under its mark would be likely to believe, upon
encountering Applicant’s mark, that the services originated with, are associated
with, or are sponsored by the same entity, notwithstanding consumer care in the
selection thereof.
Decision: The refusal to register Applicant’s mark is affirmed under Section 2(d)
of the Trademark Act.