The Headhunters Inc.

Trademark Trial and Appeal Board

Oct 31, 2014

No. 85809980 (T.T.A.B. Oct. 31, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 31, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re The Headhunters Inc.
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Serial No. 85809980
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The Headhunters Inc., appearing pro se.1

Kristina Morris, Trademark Examining Attorney, Law Office 116,
Michael W. Baird, Managing Attorney.
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Before Zervas, Wellington, and Kuczma,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
The Headhunters Inc. (“Applicant”) seeks registration on the Principal Register
of the standard character mark SQ for the following services:
Business assistance, advisory and consulting services in
the field of large industry in the form of conducting
behavioral assessments to (a) measure the personality
risk factors present in high-risk individuals likely to lead
to human error and accidents in an industrial setting and

1 Applicant is a Canadian Corporation. Stephen Todd Race, identified in the application as
holding a “Partner” position, has filed all papers, including the Appeal Brief, on behalf of
Applicant.
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(b) provide advice for changing high-risk behavior in
International Class 35.2
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), in view of the
registered, standard-character mark SQ SERVICE QUESTIONNAIRE for the
following services:
Employment support services relating to the hiring and development of
employees, namely administering a questionnaire to assist employers in
identifying problems with employees and prospective employees; and
administering a questionnaire on personnel, human resource, employment and
recruitment matters such as working practices, task management, role analysis
and design, assessment appraisal and monitoring of employees and prospective
employees, career planning and development, job evaluation, human resource
management, ensuring equal opportunities, how to create job description and
role profiles in International Class 35.3

There is a disclaimer of exclusive use of the wording “Service Questionnaire” in the
registration.
Applicant filed a request for reconsideration and appealed the final refusal. After
the Examining Attorney denied the reconsideration request, the appeal proceeding
resumed and briefs have been filed. Based on the record before us and upon
consideration of the arguments, we affirm the likelihood of confusion refusal.
Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the probative facts in evidence that are relevant to the factors set forth in In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See

2 Application Serial No. 85809980 was filed on December 24, 2012, based upon an allegation
of first use in commerce on November 14, 2011.
3 Registration No. 3205054 issued February 6, 2007; Sections 8 and 15 affidavits filed.
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also, In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (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 (CCPA 1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405,
41 USPQ2d 1531 (Fed. Cir. 1997).
The Services, Their Trade Channels,
Classes of Customers and Level of Purchasing Care

We turn first to the du Pont factor involving the relatedness of the involved
services, as well as other factors involving the trade channels, relevant customers
and degree of purchasing care for these services.
Applicant argues that its services and those of Registrant fall in “niche areas”
and “the nature of each of their services is different.”4 Specifically, Applicant
attempts to distinguish the services by asserting that Registrant’s mark is only
used in connection with an “evaluation of hourly employees specifically during
recruitment and with a specific focus on service industries” whereas the
application’s recitation of services mentions “a specific focus on large
industries.”5 Applicant also asserts, based on extrinsic evidence, that “each of the
two marks is marketed to a different industry or demographic … For [Registrant],
the target market is human resource departments in service-related industries that

4 Brief at p. 4.
5 Id. Emphasis in bold in original.
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utilize hourly employees … [and Applicant’s] target market is large industries
facing potentially life threatening accidents and errors due to human error.”6
It is settled that in making our determinations, we must look to the services as
they are identified in the application vis-à-vis those recited in the cited registration.
See Octocom Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB
2011). Thus Applicant’s aforementioned arguments are not persuasive given the
scope we must accord to the involved recitations of services. As the Examining
Attorney has previously pointed out to Applicant, and we reiterate, it is
impermissible in an ex parte proceeding such as this to read in or impose any
limitations to the recitations of services. In re Bercut-Vandervoort & Co., 229 USPQ
763, 764 (TTAB 1986); see also, Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (an inter partes proceeding
holding that likelihood of confusion is based upon the description of the goods or
services stated in the application and registration at issue, not on extrinsic evidence
of actual use).
An unrestricted reading of Registrant’s recitation of services reveals that that
they encompass, and thus are legally identical, to Applicant’s services and that they
may be offered to the same customers. More specifically, Registrant renders
business-to-business employee screening services that include “administering a
questionnaire to assist employers in identifying problems with employees and

6 Id. at p. 5.
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prospective employees.” This description would include Applicant’s more detailed
“business assistance, advisory and consulting services in the field of large industry
in the form of conducting behavioral assessments to (a) measure the personality
risk factors present in high-risk individuals likely to lead to human error and
accidents in an industrial setting.” That is, the “identifying problems with
employees” aspect of Registrant’s services encompasses identifying employees who
are “high-risk individuals” thereby assisting the business customer in avoiding
industrial workplace accidents. In which case, Applicant and Registrant would be
rendering the same services to the same type of business customer.
The fact that Registrant’s services are described as reviewing or evaluating
employees by “administering a questionnaire” does not differentiate the services
because Applicant also conducts “behavioral assessments,” and the record reveals
this involves interviewing and questioning the employees of its business clients.7
For example, Applicant states that it obtains relevant employee information
through “suggested interview questions.”8 The Examining Attorney additionally has
submitted evidence in the form of third-party website printouts showing that it is
not uncommon to acquire employee information for purposes of safety through the
use of questionnaires (“employee screening questionnaires”).9
Because Registrant’s services encompass Applicant’s, they are in-part legally
identical and we must assume that they will travel in all of the same normal

7 See Applicant’s specimen submitted August 7, 2013.
8 Id.
9 Submitted with Office Action issued on August 29, 2013.
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channels of trade for such services and will be offered to the same classes of
purchasers. In re Smith & Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because
the goods are legally identical, they must be presumed to travel in the same
channels of trade, and be sold to the same class of purchasers”). See also, In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though
there was no evidence regarding channels of trade and classes of consumers, the
Board was entitled to rely on this legal presumption in determining likelihood of
confusion).
Applicant argues that confusion is unlikely because the customers for
Registrant’s and Applicant’s services are, respectively, “human resource managers
and recruitment managers in service-oriented industries” versus “human resource
and safety managers of large-scale industrial companies” and these customers will
“exercise high levels of care when purchasing services.”10 Applicant also asserts that
the cost for these services is relatively high and states that its “cheapest package …
is priced at $ 77.”11 The record does not support Applicant’s contention that the
relevant customer, whether it be the human resource manager or another employee
of the business to whom the parties will offer their services, will exercise any more
care than normal in their selection of companies like Applicant or the Registrant.
Furthermore, even if we were to accept the price mentioned by Applicant as a
starting point for its services, the identified sum ($ 77) does not seem so expensive
in the context of business expenses for large companies. Finally, even if the relevant

10 Brief at pp. 5-6.
11 Id. at p. 5.
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consumer, e.g., an employer’s human resource manager, is more knowledgeable
than the general public with respect to the involved services, this does not mean
that this person will necessarily be sophisticated when it comes to service marks
and immune to confusion. See Stone Lion Capital Partners, LP v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1163 (Fed. Cir. 2014).
In sum, we find the recited services in the cited registration encompass, and
thus are identical in part to, those of Applicant; and that these services may be
offered to the same customers in the same trade channels.
Accordingly, the du Pont factor involving the relatedness of the services weighs
strongly in favor of finding a likelihood of confusion. The factors pertaining to trade
channels and classes of consumers also support a determination that there is a
likelihood of confusion.
Applicant has not persuaded us that the relevant customers will exercise a
higher degree of care in making their purchasing decisions for the involved services
to affect our decision and this factor thus remains neutral.
Similarity of the Marks
In comparing the marks, we must consider them in their entireties as to
appearance, sound, connotation and commercial impression to determine the
similarity or dissimilarity between them. Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir.
2005). We also keep in mind that the test, under the first du Pont factor, is not
whether the marks can be distinguished when subjected to a side-by-side
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comparison; “[i]nstead, it is the similarity of the general overall commercial
impression engendered by the marks which must determine, due to the fallibility of
memory and the consequent lack of perfect recall, whether confusion as to source or
sponsorship is likely.” Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735,
1741 (TTAB 1991), aff’d unpublished, No. 92-1086 (Fed. Cir. June 5, 1992); see also,
Coach Servs., Inc. v. Triumph Learning LLC, 101 USPQ2d at 1721 (citation
omitted). That is, the proper focus is on the recollection of the average customer,
who retains a general rather than specific impression of the marks. Winnebago
Industries, Inc. v. Oliver & Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Viewing the marks in their entireties, we find them to be very similar. In
essence, Applicant is attempting to register the more distinctive and thus dominant
element of the registered mark. Applicant’s mark, SQ, is the primary and sole non-
disclaimed portion of Registrant’s mark, SQ SERVICE QUESTIONAIRE. It is
well-settled that disclaimed, descriptive wording, such as “service questionnaire,”
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), quoting, In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed.
Cir. 1983) (“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”); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531,
1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702
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(TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s
commercial impression”). While it is fairly evident that the letters SQ in the
registered mark are an abbreviation for the disclaimed wording, we must consider
the possibility that customers already familiar with Registrant’s mark may assume,
correctly or incorrectly, that Applicant’s mark has the same intended meaning.12
Thus, as to the involved marks’ commercial impressions and connotations, we
cannot rule out the possibility that customers perceive the same meaning in both
marks. If customers believe the letters SQ are wholly arbitrary, the marks would
have no understood meaning and would yield the same commercial impression
given the similarity of the services.
In sum, due to Applicant’s incorporation of the key or dominant element of
Registrant’s mark, there is an overall strong similarity between the marks. The
disclaimed and descriptive wording in Registrant’s mark does not obviate the
similarity. Thus, this du Pont factor weighs in favor of finding a likelihood of
confusion.
The Number and Nature of Similar Marks in Use on Similar Goods
Applicant devotes a section in its appeal brief entitled “number and nature of
similar marks in use on similar goods,” but relies merely on third-party
registrations containing the letters SQ, including those cited against the

12 Based on Applicant’s specimen of record, it is apparent that Applicant’s use of the letters
SQ may be an abbreviation for the wording “safety quotient.” However, this does not mean
that customers are aware of such a meaning and, because Applicant only seeks registration
of the letters SQ, there is no assurance that the wording “safety quotient” will be used in
conjunction with or in the vicinity of the applied-for mark.
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application.13 In its response to an Office Action, Applicant argued that “[t]he fact
that other businesses also use similar trademarks on similar or different goods may
reduce the strength of a registrant’s trademark.”14
Third-party registrations are not evidence that the registered marks are in use
in commerce or that consumers have even been exposed to them. Smith Bros. Mfg.
Co. v. Stone Mfg. Co., 476 F.2d 1004, 177 USPQ 462, 463 (CCPA 1973) (the
purchasing public is not aware of registrations reposing in the U.S. Patent and
Trademark Office); also see TBMP § 1208.02 (2014) and authorities cited therein.
Moreover, a review of the third-party registrations submitted by Applicant reveals
that only one covers services that pertain to employee evaluation services.15 Thus,
on this record, we cannot find that customers are accustomed to viewing similar
marks in use in connection with the same or similar services and, in view of such
exposure, may perceive some otherwise slight differences in the marks for purposes
of distinguishing them.

13 Applicant submitted copies of approximately 55 such registrations with its response (filed
April 7, 2013) to an Office Action. We further note that, in the first Office Action, the
Examining Attorney cited two additional registrations: Registration No. 3796554 (for the
mark SQ) for “Business evaluation of business opportunities or ventures, either live, in
person, on-line or through the use of surveys and evaluations, and scoring of the worthiness
or readiness thereof; Business research and surveys; Conducting business research and
surveys” in International Class 35; and Registration No. 4091773 (for the mark SQ) for
various services involving “social responsibility, corporate governance and environmental
sustainability practices measure against published standards.” In light of Applicant’s
response and subsequent amendment to its recitation of services, the Examining Attorney
withdrew these registrations as bases for refusal to register Applicant’s mark.
14 Response to Office Action filed April 7, 2013.
15 Registration No. 3107492 (for the mark HPP/SQ) for “psychological testing and
evaluation for the selection of personnel in public and private industry, safety, and
correctional fields.”
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Conclusion
Because the marks are very similar based on Applicant’s mark being the
dominant portion of the Registrant’s mark, and the services are overlapping and
thus legally identical, and the respective services, where overlapping, will be offered
to the same classes of purchasers in the same trade channels, we find that confusion
is likely between Applicant’s mark and the cited registered mark.
Decision: The refusal to register Applicant’s mark is affirmed.