Charger Ventures LLC

Trademark Trial and Appeal BoardSep 15, 2021

88340651 (T.T.A.B. Sep. 15, 2021)

This Opinion is not a Precedent of the TTAB Mailed: September 15, 2021 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Charger Ventures LLC _____ Serial No. 88340651 _____ William D. Day of William Day Law Group, LLC, for Charger Ventures LLC. Jason F. Turner, Trademark Examining Attorney, Law Office 108, Kathryn E. Coward, Managing Attorney. _____ Before Mermelstein, Wellington and Goodman, Administrative Trademark Judges. Opinion by Goodman, Administrative Trademark Judge: Charger Ventures LLC (“Applicant”) seeks registration on the Principal Register of the mark SPARK LIVING (in standard characters, LIVING disclaimed) for Leasing of residential real estate; residential real estate listing; residential real estate service, namely, residential rental property management; specifically excludes commercial property and office space in International Class 36.1 1 Application Serial No. 88340651 was filed on March 14, 2019, based upon Applicant’s assertion of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Serial No. 88340651 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s mark under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the grounds that the mark is likely to cause confusion with the mark SPARK for “Real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space” in International Class 36.2 When the refusal was made final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. We affirm the refusal to register. I. Likelihood of Confusion Section 2(d) of the Trademark Act prohibits registration of a mark that so resembles a registered mark as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion, mistake, or to deceive. 15 U.S.C. § 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on an analysis of all probative facts in the record that are relevant to the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be considered, referred to as “DuPont factors”). We consider each DuPont factor for which there is evidence and Page references to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal refer to the Board’s TTABVUE docket system. Applicant’s brief is at 6 TTABVUE; the Examining Attorney’s brief is at 8 TTABVUE. 2 Registration No. 5433533 issued March 27, 2018. Serial No. 88340651 - 3 - argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162- 63 (Fed. Cir. 2019). In every Section 2(d) case, two key factors are the similarity or dissimilarity of the marks and 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 § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). “Not all of the [DuPont] factors are relevant to every case, and only factors of significance to the particular mark need be considered.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1719 (Fed. Cir. 2012) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010)). A. Similarity or Dissimilarity of the Services and Trade Channels We first consider the “[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration.” DuPont, 177 USPQ at 567. See also Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014). The services need not be identical or even competitive to find a likelihood of confusion. On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that the goods [or services] emanate from the same source.” Coach Servs., Inc., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Serial No. 88340651 - 4 - Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). It is sufficient for a finding of likelihood of confusion as to a particular class if relatedness is established for any item of identified goods or services within that class in the application or cited registration. Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Applicant’s services are “Leasing of residential real estate; residential real estate listing; residential real estate service, namely, residential rental property management; specifically excludes commercial property and office space” and Registrant’s services are “Real estate services, namely, rental, brokerage, leasing and management of commercial property, offices and office space.” Although Applicant’s services are described as targeting the residential real estate sector and Registrant’s services involve commercial properties, the Examining Attorney submitted third-party registrations from the TESS database (Trademark Examination Search System) to show that “the services listed therein, namely, real estate listing and real estate management, are of a kind that may emanate from a single source under a single mark.” May 30, 2019 Office Action at TSDR 1 (2-86). January 7, 2020 Office Action at TSDR 1(2-52); July 13, 2020 Office Action at TSDR 1 (2-104); February 9, 2021 Denial of Reconsideration at TSDR 1. The Trademark Examining Attorney also submitted website evidence showing that commercial and residential services can be offered under the same or similar marks. January 7, 2020 Serial No. 88340651 - 5 - at TSDR 1 (2-52); February 9, 2021 Denial of Reconsideration at TSDR 1 (2-4). Examples include:3 Reg. No. 5547050 ZARGO INVEST for services that include leasing of, operating and managing residential real estate properties; commercial real estate services, namely, leasing of, operating, and managing commercial real estate properties. January 7, 2020 Office Action at TSDR 24-26. Reg. No. 4480398 for services that include commercial and residential real estate brokerage services; rental of residential housing; leasing and management for others of residential condominiums located within hotel developments; commercial real estate services, namely, rental, brokerage, leasing and management of commercial property. January 7, 2020 Office Action at TSDR 6- 8. Reg. No. 5492562 STERLING RANCH COLORADO for services that include commercial real estate and residential real estate; condominium leasing; leasing of retail, hotel, commercial, office and restaurant space to others. January 7, 2020 Office Action at TSDR 9-11. Reg. No. 5388294 SMART BRICKELL for services that include commercial and residential real estate brokerage, financing, leasing, rental and management services. January 7, 2020 Office Action at TSDR 12-14. Reg. No. 5334429 T3 for services that include leasing of residential, retail and commercial real estate; residential, retail and commercial real estate brokerage. January 7, 2020 Office Action at TSDR 18-20. Reg. No. 5901324 for services that include commercial and residential property management; rental property management; leasing of apartments; rental of apartments. January 7, 2020 Office Action at TSDR 42-44. Reg. No. 5714339 UNION PARK AT NORTERRA for services that include real estate management, brokerage, and leasing services for residential and commercial property. July 13, 2020 Office Action at TSDR 58-60. 3 Some of the third-party registrations submitted by the Examining Attorney list real estate services without reference to whether they are commercial or residential (e.g., real estate agency, real estate listing, real estate management, real estate rental services). These registrations also are probative because they could be read to encompass both commercial and residential real estate services. Serial No. 88340651 - 6 - Reg. No. 6026546 VAN AKEN DIST. for services that include real estate management of commercial property, office space, residential property; rental, brokerage, leasing and management of commercial property, offices and office space; rental of residential housing. July 13, 2020 Office Action at TSDR 61-63. Reg. No. 5963300 FOLLIO for services that include rental, leasing and management of residential property, commercial property, offices and office space. July 13, 2020 Office Action at TSDR 67-68. Reg. No. 6072542 for services that include residential and commercial real estate management. July 13, 2020 Office Action at TSDR 69-71. Reg. No. 6032224 for services that include rental of residential housing; property management services for condominium associations, homeowner associations and apartment buildings; rental, brokerage, leasing and management of commercial property, offices and office space; rental and leasing of residential condominium located within hotel development properties, building complexes, residential, buildings and properties, housing estates, commercial buildings, office buildings and shopping centers. July 13, 2020 Office Action at TSDR 72-74. Reg. No. 6087085 WAYPOINT REAL ESTATE INVESTMENTS for services that include rental, leasing and management of residential and commercial property, residential management services, namely, management of apartments; rental and leasing of apartments. July 13, 2020 Office Action at TSDR 75-77. Reg. No. 6007829 BLUEROCK for services that include rental, brokerage, leasing and management of commercial property, offices, and office space, multi-family residential, and mixed use property. July 13, 2020 Office Action at TSDR 78-80. Reg. No. 6007874 for services that include rental, brokerage, leasing and management of commercial property, offices and office space, multi-family residential and mixed use property. July 13, 2020 Office Action at TSDR 84-86. Serial No. 88340651 - 7 - Reg. No. 6024107 TRURIDGE for services that include rental, brokerage, leasing and management of residential and multifamily property, commercial property, offices and office space. July 13, 2020 Office Action at TSDR 87-88. Reg. No. 6067392 for services that include real estate management of residential and commercial properties, real estate brokerage of residential and commercial properties, leasing of commercial property, rental of real estate in the nature of commercial and personal property. July 13, 2020 Office Action at TSDR 89-92. 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 services at issue are of a kind that emanate from a single source. See In re I- Coat Co., 126 USPQ2d 1730, 1737 (TTAB 2018); In re Infinity Broad. Corp., 60 USPQ2d 1214, 1217-18 (TTAB 2001). The Examining Attorney provided website evidence showing the offering of residential and commercial real estate property management and leasing services under the same marks. July 13, 2020 Office Action at TSDR 2-15. Internet website evidence can be used to show relatedness. In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009) (accepting website evidence to show relatedness of the goods). The Examining Attorney also submitted Applicant’s other registrations to show that residential real estate services are within Registrant’s normal field of expansion. However, the Examining Attorney’s argument relating to the normal fields of expansion is not applicable in an ex parte proceeding. In Re Kysela Pere et Fils, Ltd., Serial No. 88340651 - 8 - 98 USPQ2d 1261, 1266 (TTAB 2011). Instead, “in the context of an ex parte proceeding the analysis should be whether consumers are likely to believe that the services emanate from a single source, rather than whether the owner of the cited registration has or is likely to expand its particular business to include the goods [or services] of applicant.” Id. Applicant argues that “the services offered under Applicant’s SPARK LIVING mark are substantially different from the services offered under the Cited Mark,” because “Applicant’s services relate to residential property services, whereas the Cited Registration’s services relate to commercial real estate services.” 6 TTABVUE 12. Applicant argues that because of “the specific limitations on the descriptions of use by both Registrant and Applicant this factor weighs against finding a likelihood of confusion.” Id. However, although there is a restriction as to the nature or type of real estate services offered in the application and registration (residential vs. commercial), we find that the evidence reflects that commercial and residential real estate services may emanate from the same source under the same mark. Therefore, we find Applicant’s exclusion of commercial real estate services from its identification is not a meaningful limitation. Applicant argues that the Examining Attorney’s Internet evidence does not prove that consumers are likely to be confused as to the source of real estate services and points out that it submitted evidence that Registrant is not offering residential real estate services. However, even if the “services in question are not identical, the Serial No. 88340651 - 9 - consuming public may perceive them as related enough to cause confusion about the source or origin of the [ ] services.” See Hewlett-Packard Company v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). That is, Applicant’s identified services and the services listed in the cited registration are likely to be perceived as related in the minds of the consuming public as to origin. Taken together, the third-party registrations and website evidence are sufficient to show the relatedness of the services. B. Trade Channels We now turn to “the similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. Neither Applicant’s identification of services nor Registrant’s identification of services includes any restrictions or limitations as to trade channels, so we presume that the respective services are or would be marketed in all normal trade channels for such services. See Kangol Ltd. v. KangaROOS U.S.A. Inc., 974 F.2d 161, 23 USPQ2d 1945, 1946 (Fed. Cir. 1992); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981). Applicant argues that its residential real estate services are offered to distinct classes of consumers in different trade channels from those of Registrant’s commercial real estate services. The Examining Attorney, on the other hand, submits that the trade channels overlap. In support of the argument that the trade channels overlap, the Examining Attorney submitted Internet website evidence. This type of evidence can be probative. Serial No. 88340651 - 10 - See, e.g., In re Davey Products, 92 USPQ2d at 1203-04 (internet evidence shows overlapping trade channels). Some of the Internet evidence shows that commercial and residential services may be offered by the same entity, albeit marketed on different website addresses. For example, Century 21 Commercial (commercial.century21.com) and Century 21 (century21.com), January 7, 2020 Office Action at TSDR 47-48; Re/Max and Re/Max Commercial (remax.com and remaxcommercial.com), at TSDR 51-52; or separate web pages: Long and Foster (longandfoster.com/pages/commercial-real-estate; longandfoster.com), at TSDR 49-50. On the other hand, some of the evidence shows commercial and residential real estate services marketed on the same websites, and some of these websites allow a potential purchaser to search both commercial and residential properties. For example, Ray Properties, Inc. (rayproperties.com) lists “residential” and “commercial” under its name, has links to “residential” and “commercial” real estate on the landing page, and has links on its webpage menu under “services” to “residential” and “commercial” real estate, July 13, 2020 Office Action at TSDR 8; MGR Real Estate (mgrrealestate.com) states on its webpage that it specializes in residential and commercial real estate and has expertise in buying, selling, listing or leasing residential or commercial real estate in Southern California, at TSDR 7; PJ Morgan Real Estate (pjmorgan.com) provides separate links on the landing page for residential and commercial services and provides links to residential and commercial “featured properties,” also listing “residential” and “commercial” under the menu for Serial No. 88340651 - 11 - “property management,” at TSDR 9; Myers Real Estate (myersrealty.com) identifies itself as a “complete solution for residential and commercial sales and property management,” and on its landing page, it provides webpage links for searching “rental properties,” “commercial properties,” “rental property management” and “commercial property management,” at TSDR 10; Gamache Properties (gamacheproperties.com) has “commercial real estate” below its name, but it also states on the landing webpage that it has “40 years of experience & expertise in commercial and residential real estate” and identifies itself as a “commercial and residential real estate investing, leasing and management firm,” at TSDR 15. In view of the evidence, we find there is some overlap in trade channels. C. Conditions of Sale As to classes of consumers, the consumers of Registrant’s services are those who own commercial property and are looking for leasing and management services, or those consumers looking for commercial property, offices and offices spaces to buy, rent, or lease. Consumers of Applicant’s services are those that are seeking to list their residential property for sale, or to lease their residential property to others, or seek a property manager for their residential property. It is possible that consumers in need of, or that at least encounter, Applicant’s residential real estate services may also be consumers of Registrant’s commercial real estate services. Therefore, the classes of consumers may overlap. Relying on the nature of the goods and services apparent from the face of the identifications in the application and cited registration, Applicant contends that Serial No. 88340651 - 12 - consumers of Applicant’s residential services may use careful and educated decision making while “consumers looking for office space are generally sophisticated.” 6 TTABVUE 14. The Examining Attorney does not argue against this premise, but contends that sophistication in a particular field does not immunize the consumers from source confusion. 8 TTABVUE 11. We acknowledge that from the face of the identifications, the services offered are not average consumer services, and the average purchaser would exercise elevated care due to the nature and cost of the real estate services. See e.g., Elec. Design & Sales Inc. v. Elec. Data Sys. Corp., 954 F.2d 713, 21 USPQ2d 1388, 1392 (Fed. Cir. 1992) (“Just from the record description of goods and services here one would expect that nearly all of opposer’s and applicant’s purchasers would be highly sophisticated.”). However, even careful or sophisticated purchasers are not immune from source confusion. See In re Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating purchasers ... are not infallible.”). D. Strength of the marks Evidence of third-party use and registration of a term in the relevant industry is considered in the likelihood of confusion analysis. 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). If a mark, or an element of a Serial No. 88340651 - 13 - mark, is used extensively in commerce by a number of third parties, it can be evidence of weakness. Juice Generation, 115 USPQ2d at 1674; Jack Wolfskin, 116 USPQ2d at 1136. This evidence may lead to the conclusion that the consuming public has become familiar with a multiplicity of the same or similar marks, and can distinguish them based on minor differences. Id. Third-party registrations may be used in the manner of dictionary definitions “to prove that some segment of the [marks] has a normally understood and well recognized descriptive or suggestive meaning, leading to the conclusion that that segment is relatively weak.” Juice Generation, 115 USPQ2d at 1675. Applicant submitted one third-party registration, SPARK LABS, in support of its argument that SPARK is conceptually weak. January 7, 2021 Request for Reconsideration at TSDRS 18-19. One third-party registration of record is not sufficient to show that SPARK is conceptually weak. Applicant argues that “there are a multitude of third-party companies and websites showing various SPARK or SPARK-formative marks used in connection with real estate and related services.” 6 TTABVUE 15. Applicant submitted a chart reflecting marketplace uses of the term SPARK in connection with services in the real estate field.4 6 TTABVUE 16. The chart is reproduced below: 4 The chart also lists the one SPARK-formative third-party registration (SPARK LABS) as well as the cited mark. Serial No. 88340651 - 14 - Applicant submits that “numerous uses in commerce of SPARK for real estate purposes provide persuasive evidence that more than one party can register or use a SPARK formative mark, without likelihood of confusion” as “[c]ustomers are able to distinguish between the Marks based on subtle differences.” 6 TTABVUE 18. We find the use-based evidence of SPARK in connection with real estate services probative of commercial weakness, although this evidence does not show use of the term SPARK alone but shows use in conjunction with other generic terms (e.g., Real Serial No. 88340651 - 15 - Estate, Property Management, Realty Group, Realty Corporation).5 See Jack Wolfskin, 116 USPQ2d at 1136 n.2, (14 third-party uses and registrations probative of weakness) and Juice Generation, 115 USPQ2d at 1673 n.1 (at least 26 uses or registrations incorporating the three-word phrase “peace and love” followed by a product identifying term, probative of weakness for restaurant services); In re FabFitFun, 127 USPQ2d 1670, 1674 (TTAB 2018) (finding 10 uses of SMOKIN’ HOT coupled with dictionary definition probative of weakness). Thus, the third-party use evidence in this case shows that the term SPARK as used in association with real estate services has some commercial weakness. See In re FabFitFun, 127 USPQ2d at 1675. We are reminded, however, that we weigh any weakness of the term SPARK into our analysis involving the similarity of the marks and ultimately into our conclusion whether there is likelihood of confusion. Moreover, we note that even weak marks are entitled to protection against registration of similar marks for identical or similar services. See In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010); see also King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 109 (CCPA 1974) (“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.”). 5 Although Applicant argues that some of the foreign uses of SPARK-formative marks provided in the table should be considered, we find the uses in the United States most probative. Serial No. 88340651 - 16 - Applicant also submitted third-party registration pairs (and Internet evidence that they are being used in commerce) to show it is common in the real estate industry for different entities to register and use similar marks. June 8, 2020 Response to Office Action at TSDR 18-56. The chart, incorporated into Applicant’s brief, is shown below: However, the Board has found that this type of evidence is not probative. In re Joel Embiid, 2021 USPQ2d 577, at * 35-38 (TTAB 2021) (third-party registrations used to show current peaceful coexistence of registrations for identical or substantially similar marks by separate entities for shoes and clothing for “paired” COBRA and SOLE marks were so different from the involved marks TRUST THE PROCESS that Board found the evidence has no probative value); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1272 (TTAB 2009) (evidence that six pairs of registrations for similar marks for MRI and ultrasound equipment registered that Serial No. 88340651 - 17 - are different than the marks at issue cannot justify the registration of another confusingly similar mark). C. Similarity or Dissimilarity of the Marks We now consider the similarity or dissimilarity of the marks in terms of appearance, sound, connotation, and overall commercial impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). The test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods or services offered under the respective marks is likely to result. Coach Servs., 101 USPQ2d at 1721. Applicant’s mark is SPARK LIVING and Registrant’s mark is SPARK. To the extent both marks comprise the word SPARK, they are similar in sound, appearance, meaning and commercial impression. The additional word LIVING in Applicant’s mark is a point of dissimilarity in appearance, sound and meaning. Although Applicant argues that neither SPARK nor LIVING in its mark should be treated as dominant, 6 TTABVUE 7, because the word LIVING in Applicant’s mark is descriptive and disclaimed, it is subordinate to the word SPARK, which is the dominant portion of Applicant’s mark. Disclaimed matter that is descriptive of or generic for a party’s services is typically less significant or less dominant when comparing marks. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (Board properly focused on the words DETROIT Serial No. 88340651 - 18 - ATHLETIC as the dominant portions of the marks DETROIT ATHLETIC CO. and DETROIT ATHLETIC CLUB because DETROIT ATHLETIC were the first words in the marks and the words CO. and CLUB were non-source identifying and had been disclaimed). SPARK, being the first word of Applicant’s mark, is the portion that is most likely to be remembered by consumers. Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”).6 In comparing the cited mark and Applicant’s mark in their entireties, we note that Applicant’s mark incorporates Registrant’s entire mark. Likelihood of confusion is often found where the entirety of one mark is incorporated within another. Coca-Cola Bottling Co. v. Seagram & Sons, Inc., 526 F.2d 556, 188 USPQ 105, 106 (CCPA 1975) (BENGAL LANCER and soldier design for club soda, quinine water and ginger ale is likely to cause confusion with BENGAL for gin); Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660 (TTAB 2014) (PRECISION and PRECISION DISTRIBUTION CONTROL confusingly similar). 6 Although Applicant recognizes that we do not take judicial notice of third-party registrations files in the Office, it argues that the addition of LIVING is meaningful, stating that the Office has found “living” to distinguish other marks covering real estate that contain shared terms and referencing as examples the third-party registration pairs CORE and CORE LIVING and BOUTIQUE and BOUTIQUE LIVING listed above. 6 TTABVUE 9 n.2, 10. However, as is often stated, each case must be decided on its own merits. We are not privy to the records of the third-party registration files submitted as TESS printouts by Applicant. Moreover, the determination of registrability of those particular marks by Trademark Examining Attorneys cannot control the merits in this case. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics similar to [applicant’s application], the PTO’s allowance of such prior registrations does not bind the Board or this court.”). Serial No. 88340651 - 19 - We find that Applicant’s mark SPARK LIVING is overall very similar to the cited mark SPARK in terms of appearance, sound, connotation and commercial impression. While we acknowledge the differences between the two marks, the differences do not outweigh the strong similarities created by the identical term SPARK and overall commercial impression engendered by the marks as a whole. See In re Code Consultants Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (finding disclaimed matter is less significant in creating mark’s commercial impression). As a result, consumers encountering SPARK LIVING are likely to mistakenly believe that the mark represents a variation on the registered mark and that Registrant is offering additional residential real estate services under a variant mark. II. Conclusion While we have found that purchasers may exercise care given the nature of the real estate services, there is insufficient evidence in the record regarding the degree of purchaser care or sophistication to overcome the close similarity of the marks and the relatedness of the services. Given those similarities, as well as the overlapping channels of trade, we find that confusion is likely. We make this conclusion despite our finding of some commercial weakness of the term SPARK in connection with real estate services because “even weak marks are entitled to protection against registration of similar marks” for similar services. In re Colonial Stores, 216 USPQ 793, 795 (TTAB 1982). Decision: The Section 2(d) refusal to register SPARK LIVING is affirmed.