Ace Bayou Corp.

Trademark Trial and Appeal Board

May 29, 2012

No. 85079173 (T.T.A.B. May. 29, 2012)

Decision Mailed:
May 29, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Ace Bayou Corp.
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Serial No. 85079173
_______

Michael A. Bondi of Dicke, Billig & Czaja, PLLC for Ace Bayou
Corp.

Helene Liwinski, Trademark Examining Attorney,
Law Office 104 (Chris Doninger, Managing Attorney).
_______

Before Quinn, Holtzman, and Wellington,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Ace Bayou Corp. has filed an application to register the
mark COMFORT PLUS (in standard character format) on the Principal
Register for:
medical products, namely, therapeutic mattress supports;
incontinence bed pads; patient moving device, namely, a low
friction pad for sliding patients to or from a stretcher and
bed; bed pans; lumbar support cushions for medical purposes;
body positioning pads and bed side rail pads for medical
purposes; urine collection receptacles for medical purposes;
patient support belts; support belts for medical purposes,
namely, patient restraint; tracheotomy ties; urine bag
holders; patient restraint vests; therapeutic cushions for
THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Serial No. 85079173
2
medical use, namely, elbow cushions and heel cushions in
International Class 10; and

wheelchair pads and wheelchair arm, leg, and foot rest pads;
wheelchair cushions and seat covers in International Class
12.1

The term COMFORT has been disclaimed.
Registration has been finally refused under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the ground that
applicant's mark, when applied to its goods, so resembles the
mark COMFORTPLUS (in standard character format) on the Principal
Register for “orthopedic braces namely, ankle braces, wrist
braces, back braces, elbow braces, shoulder braces, neck braces
and knee braces" in International Class 10,2 as to be likely to
cause confusion, or to cause mistake, or to deceive.
Applicant has appealed and briefs have been filed.3 We
affirm the refusal to register.
Our determination 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 also
In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d
1201 (Fed. Cir. 2003). In any likelihood of confusion analysis,

1 Serial No. 85079173, filed on July 7, 2010, which alleges a date of
first use anywhere and in commerce of January 31, 1991 for both
international classes.
2 Reg. No. 3091227, issued May 9, 2006.
3 The examining attorney has objected to applicant’s submission of two
lists of third-party registrations with its brief on the basis that
these materials were not previously filed. The objection is well-
taken; the materials submitted with applicant’s brief are untimely and
Serial No. 85079173
3
however, two key considerations are the similarities between the
marks and the similarities between the goods and/or services.
See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976).
With respect to the marks, they are identical for all
intents and purposes. The fact that applicant’s proposed mark
contains a space between the terms COMFORT and PLUS is
insignificant and does not distinguish it from the registered
mark. Seagard Corp. v. Seaward International, Inc., 223 USPQ 48,
51 (TTAB 1984) (the presence or absence of a space between words
in marks does very little, if anything, to distinguish them).
The marks are identical in sound. The connotation and commercial
impression created by the marks will likewise be the same
inasmuch as both marks are being used on medically related goods
where the user’s “comfort” is a desired attribute of the goods.
In other words, both marks are suggestive of the respective goods
providing “comfort” or actually being “comfortable” to use. PLUS
will also be perceived as a laudatory term suggesting favorable
or advantageous qualities in the goods.4

have not been considered. Trademark Rule 2.142(d); see also TBMP
Section 1207.01 (3rd edition 2011).
4 We take notice that “plus” is defined as “involving positive
advantage or good...a plus factor.” Collins English Dictionary –
Complete and Unabridged (Harper Collins Publishers 2008). The Board
may take judicial notice of dictionary definitions. See In re
CyberFinancial.Net Inc., 65 USPQ2d 1789, 1791 n.3 (TTAB 2002). See
also University of Notre Dame du Lac v. J. C. Gourmet Food Imports
Co., Inc., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983).
Serial No. 85079173
4
Because of the near identity of the marks, this du Pont
factor weighs heavily in favor of finding a likelihood of
confusion.
Insofar as the goods are concerned, if the marks are
identical or nearly so, as in the present case, it is only
necessary that there is a viable relation between the goods to
support a holding of likelihood of confusion. See In re Shell
Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993);
and In re Opus Wine Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
Upon review of the record, we conclude that the identified
goods in the application are sufficiently related to those in the
registration. We do not merely rely on the fact both applicant’s
and registrant’s goods fall under the common label of “medical
supplies.” Rather, the examining attorney has submitted evidence
showing that there is at least a viable relationship between
these goods. In particular, she has attached to the Office
actions printouts from several third-party online retail websites
showing, inter alia, orthopedic braces being advertised on the
same page as “wheelchair cushions,” and both apparently being
manufactured by the same entity;5 and “abdominal, back & sacral
supports” offered for sale on the same page as “ankle braces,” as
well as offering walking aid accessories that includes
“wheelchair cushions.”6 One retail website, whose name does not

5 From www.orthoticsandbeyond.com, submitted with Office Action on June
9, 2011.
6 From www.mabiscmi.com, submitted with Office Action on June 9, 2011.
Serial No. 85079173
5
go unnoticed (“The Comfort Store”), advertises “core therapeutic
products” and then provides a link to “core orthopedic pillows –
bed & neck support pillows” directly above another link to
“supports & braces – for ankle, knee, wrist, elbow.”7 In
addition, the examining attorney submitted twenty-four third
party registrations for marks covering both goods identified in
the application as well as those identified in the registration
to show that it is not unusual for the same mark to be registered
for these goods.8 While these registrations are not evidence
that the marks are in use or that consumers are familiar with
them, they do suggest that applicant’s and registrant’s goods are
of a type that may emanate from a single source. See In re
Albert Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993); In re
Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988).
Thus, consumers who encounter the goods, being sold or offered
under a nearly identical mark, are likely to believe that they
are being offered by the same entity.
In sum, the evidence demonstrates that there is a sufficient
relationship between registrant’s goods and applicant’s goods, as
identified in both International Classes 10 and 12 of the
application. Accordingly, this du Pont factor also weighs in
favor of finding a likelihood of confusion.

7 From www.sitincomfort.com, submitted with Office Action on October
19, 2010.
8 Submitted with Office Action on June 9, 2011.
Serial No. 85079173
6
As to the trade channels and classes of purchasers, it is
presumed the identified goods are offered in all channels of
trade which would be normal therefore, and that they would be
purchased by all potential buyers thereof. In re Elbaum, 211
USPQ 639, 640 (TTAB 1981). The record shows that third-party
retail websites specializing in medical supplies sell both the
goods identified in the application as well as those identified
in the registration and the products may be viewed in proximity
to each other on these retail websites. With regard to the
consumers, there is little evidence. Despite this lack of
evidence, we can envision that some goods identified in the
application, e.g., “patient moving device,” would not be sold to
the general public and would otherwise not necessarily be offered
to the same consumers as those purchasing registrant’s orthopedic
braces. On the other hand, certain goods identified in the
application, e.g., “therapeutic cushions for medical
use...wheelchair cushions” may very well be purchased by the same
consumers who might purchase registrant’s orthopedic braces.
Accordingly, the du Pont factor involving trade channels
weighs in favor of finding a likelihood of confusion. We have
insufficient evidence to make a finding regarding classes of
purchasers that would either weigh in favor of or against a
finding of a likelihood of confusion.
Finally, we address applicant’s argument that “extensive
third-party use of ‘comfort’ in conjunction with medical products
Serial No. 85079173
7
warrants [a] narrow scope of protection for the cited
registration.” Brief, p. 5. In support of this argument,
applicant relies on a table inserted in the text of its response
to an Office action that purportedly reflects the results of a
search of the USPTO database reflecting the number of registered
marks comprising, in part or whole, the term “comfort,” as well
as the number of registrations for marks comprising both terms
“comfort” and “plus.” There are several problems with this
evidence. First, the record does not include copies of the
registrations. Second, even had applicant properly and timely
submitted copies of the registrations, they are not evidence that
the marks covered by said registrations are actually in use nor
do they indicate the nature or extent of such use such that
consumers would be familiar with the use. On this record, we
cannot find any weakness in opposer’s registered mark based on
extensive third party-use of the terms COMFORT and/or PLUS in
connection with medical products.
Nevertheless, as we have already mentioned in our discussion
of the similarity of the marks, the term COMFORT connotes a
desired quality for the goods. Indeed, the term has been
disclaimed by applicant because the examining held it to be
descriptive of the goods. Likewise, the term PLUS suggests a
better or advantageous quality to the goods. However, the extent
of any weakness in registrant’s mark based on the combination of
descriptive or suggestive terms is outweighed by the fact that
Serial No. 85079173
8
applicant seeks to adopt essentially the same mark on related
goods. Long-standing precedent also makes it clear that even
weak marks are entitled to protection.
The description of marks as “weak” or “strong,” and
references to the “breadth of protection” to be given a
mark, have served as a convenient type of shorthand in the
literature of opinions concerned with likelihood of
confusion. ... Such expressions, however, should not
obfuscate the basic issue. Confusion is confusion. The
likelihood thereof is to be avoided, as much between “weak”
marks as between “strong” marks, or as between a “weak” and
a “strong” mark.

King Candy Co. v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 109 (CCPA 1974).
We have considered all arguments put forth by applicant and
the examining attorney in addition to the evidence of record.
Ultimately, we conclude that there is a likelihood of confusion
between registrant’s mark COMFORTPLUS on “orthopedic braces
namely, ankle braces, wrist braces, back braces, elbow braces,
shoulder braces, neck braces and knee braces,” and applicant’s
proposed mark COMFORT PLUS on the identified goods in both
International Classes 10 and 12 of the application.
Decision: The refusal under Section 2(d) is affirmed.